Louisville & N.R. Co. v. Stephens

• Decision Date: 28 April 1944
• Citation: 182 S.W.2d 447,298 Ky. 328
• Parties: LOUISVILLE & N. R. CO. v. STEPHENS.
• Court: Kentucky Court of Appeals

182 S.W.2d 447

298 Ky. 328

LOUISVILLE & N. R. CO. v. STEPHENS.

Court of Appeals of Kentucky

April 28, 1944

Rehearing Denied Oct. 27, 1944.

Appeal from Circuit Court, Kenton County; Rodney G. Bryson, Judge.

Action by Della Mae Stephens, administratrix of the estate of Jesse O. Stephens, deceased, against the Louisville & Nashville Railroad Company for deceased's death as the result of an explosion of the boiler of a locomotive engine, on which deceased was the fireman. Judgment for plaintiff, and defendant appeals.

Reversed.

H. T. Lively, of Louisville, Samuel M. Wilson, of Lexington, and Rouse, Price & Adams, of Covington, for appellant.

Northcutt & Northcutt, of Covington, for appellee.

STANLEY Commissioner.

This action for the death of Jesse O. Stephens, a locomotive fireman, was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, and the appeal is from a judgment for $40,000 for the benefit of his widow.

A train of 110 cars left DeCoursey yards near Covington at 12:10 a m., October 1, 1941. Two hours later, when the train had gone about 35 miles and while running about 25 miles an hour, a number of bolts holding the crown sheet of the boiler in place gave way and caused a sudden rupture or opening which let the steam and water into the fire box. The 'crown sheet' is that part of the boiler over and around the fire box. The escaping steam carried smoke, soot and some live coals into the cab. The explosion was due to insufficient water in the boiler.

The engineer, Frakes, testified that in some unaccountable way he got out the window of the cab. 'My subconscious mind said to me, that's the nearest way of escape.' He held on to a hand-hold above the window on the outside, with his feet on a narrow ledge extending along the lower part. He reached back into the cab and shut off the steam as soon as he could. The train came to a stop in about a mile which was its approximate length. The fireman, Stephens, and head brakeman, Ballinger, had been riding on the left side of the cab. Not being there when Frakes got back in the cab he walked down the side of the train. The conductor in the caboose, not knowing the cause for stopping, walked forward. They found Stephens, who was dead, and Ballinger, who was seriously injured, on the ground six or seven car lengths from the rear of the train. Stephens' skull was badly fractured and his arm broken. He had not been scalded or burned.

1. The appellant raises the question of the right of plaintiff to maintain the action under the Federal Employers' Liability Act. Other than the engine and caboose the train was wholly of empty coal cars. It was made up in DeCoursey yards, in the northern part of Kentucky, and destined for Corbin, in the southern part of the State. It was there broken up and the cars taken in other trains and distributed among the coal mines in southeastern Kentucky according to orders given at Corbin. There were cars of the appellant and other companies, many of which are foreign to Kentucky. Among these were 28 cars belonging to the International Harvester Company which had been brought from Cincinnati terminals to the Kentucky yards of the appellant by other railroads. They were ultimately destined for the Harvester Company's coal mines for loading and return to its foundries outside of Kentucky. There was a continuous movement of these cars from the origin to destination, except as parts of different trains.

The appellant relies specially upon Louisville & N. R. Co. v. Strange's Adm'x, 156 Ky 439, 161 S.W. 239, and Illinois Central R. Co. v Peery, 242 U.S. 292, 37 S.Ct. 122, 61 L.Ed. 309. Both cases involved local Kentucky freight trains and presented situations much like that in the case at bar. It was held in each that the action for the death of a railroad trainman could not be maintained under the Federal Act. Our case was decided in 1913 and the Supreme Court case in 1916. We shall not pause to consider them. In 1939 the Congress amended the Federal Employers' Liability Act to provide that any employee, 'any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce,' shall be considered as employed in such commerce and entitled to the benefits of the Act. The word 'furtherance' has well developed meanings. Among others it is helping along as well as promoting or advancing; and in this context the word 'affect' means to act or to produce an effect upon. Webster's Dictionary. The National Labor Relations Act, 29 U.S.C.A. § 151 et seq., defines the phrase 'affecting commerce' as meaning anything that affects the free flow of commerce between the states. By its interpretation the Supreme Court has expanded that and other regulatory Acts of Congress so that few are the industries and employees not touched by the measuring rod of interstate commerce. It is held, for example, that burdens on interstate commerce can result from an intrastate act irrespective of the origin of the materials or the place at which it was done. National Labor Relations Board v. Henry Levour, Inc., 1 Cir., 115 F.2d 105; certiorari denied, 312 U.S. 682, 61 S.Ct. 550, 85 L.Ed. 1120. Of closer application is the decision of the Circuit Court of Appeals for the Sixth Circuit, in National Labor Relations Board v. West Kentucky Coal Company, 116 F.2d 816, that within the Act are miners employed by a foreign corporation operating coal mines in Kentucky, which purchased most of its supplies and equipment and shipped the larger part of its production outside the state, selling it to interstate railroad companies with which its mines were connected. A fortiori must it be held that moving cars coming from outside the state to coal mines for loading and transportation to other states is in furtherance of and substantially affects interstate commerce. See Louisville & N. R. R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564; certiorari denied, 282 U.S. 847, 51 S.Ct. 26, 75 L.Ed. 751. We are of opinion, therefore, that this action was maintainable under the Federal Employers' Liability Act.

2. The appellant argues that the court should have peremptorily instructed the jury to return a verdict in its favor because the cause of action alleged in the petition failed for want of proof. It is in two particulars. One relates to the cause of the bursting of the boiler and the other to the proximate cause of the injury.

(a) The plaintiff charged that 'the defendant, its agents and servants, through gross and wanton carelessness and negligence in equipping, preparing, supplying and operating said locomotive engine, upon which plaintiff's intestate was then and there employed and engaged as a fireman, an explosion was caused to occur to and upon said locomotive engine and as a result thereof, the head of plaintiff's intestate was crushed and he was otherwise so mangled and injured that he instantly died.'

The evidence proved there was a defective water glass, which is a device readily disclosing the stage of water in a boiler.

The Federal Employers' Liability Act specifically imposes liability upon a carrier for injury or death of an employee 'by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances * * * or other equipment.' And the Federal Boiler Inspection Act, 45 U.S.C.A. § 23, enacted for the safety of employees, is to be read and applied with the Federal Employers' Liability Act, for therein is the remedy to be found. Baltimore &amp Ohio Railway Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432. This Act makes it unlawful for any common carrier by railroad to use any locomotive unless 'its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put.' A rule promulgated by the Interstate Commerce Commission, under its authority to establish standards of compliance, has the force of law and becomes a part of the Act. Lilly v. Grand Trunk Western R. R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411. 'Whatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by a lawful order of [that body] are within the statute.' Southern Ry. Co. v. Lunsford, 297 U.S. 398, 56 S.Ct. 504, 506, 80 L.Ed. 740. A list of various devices which the Commission had prescribed up to the time of the opinion in Napier v. Atlantic Coast Line R. Co., supra, is given in the margin of that opinion. It includes a water glass, gauge cocks and lamps in connection with them. It also appears in avowals in this record that the Interstate Commerce Commission has prescribed by Rules 37 and 42, issued under authority of the Boiler Inspection Act, that every boiler shall be equipped with at least one water glass and three gauge cocks, the lowest reading of which shall be not less than three inches above the highest part of the crown sheet, and that all water glasses must be supplied with a suitable and properly located lamp so that the engineer may easily see the water in the glass. There is a conflict of authority whether or not state courts take judicial notice of the safety appliance standards prescribed by the Interstate Commerce Commission. Thus it is held they do in Goulette's Adm'r v. Grand Trunk Line, 93 Vt. 266, 107 A. 118, and Huckleberry v. Missouri P. R. Co., 324 Mo. 1025, 26 S.W.2d 980, and do not in Butler v. Illinois Traction, Inc., 253 Ill.App. 135, and Carter v. Industrial Commission, 76 Utah 520, 290 P. 776. It does not appear the documents offered in evidence on this point were properly authenticated....