Mathews v. Chicago & N. W. Ry. Co., 24279.
| Decision Date | 20 March 1925 |
| Docket Number | No. 24279.,24279. |
| Citation | 162 Minn. 313,202 N.W. 896 |
| Court | Minnesota Supreme Court |
| Parties | MATHEWS v. CHICAGO & N. W. RY. CO. |
Appeal from District Court, Lyon County; A. B. Gislason, Judge.
Action by A. G. Mathews, as special administrator of the estate of Stough E. Schaal, deceased, against the Chicago & Northwestern Railway Company. From an order denying a new trial, plaintiff appeals. Affirmed.
Davis & Michel, of Minneapolis, and Charles De Rue, of Marshall, for appellant.
Brown, Somsen & Sawyer, of Winona, and James H. Hall, of Marshall, for respondent.
Action under the federal Liability Act (Comp. St. U. S. §§ 8657-8665) and Boiler Inspection Act (Comp. St. U. S. §§ 8630-8639) to recover damages for the death of Stough E. Schaal, a locomotive engineer, who lost his life July 14, 1923, by the explosion of the boiler of the locomotive of which he was in charge. After a verdict for defendant, plaintiff appeals from the order denying a new trial. The right to a new trial, if it exists, is referable to errors of law. A somewhat detailed statement of facts is necessary to an understanding of the issues here.
The engine was pulling an eastward bound interstate freight train, and the explosion occurred some five minutes after its arrival at Belle Plaine, Iowa. The engine was of the Mikado type, comparatively new, constructed for and performing heavy freight duty. The explosion tore the boiler from the frame and trucks and projected it directly forward about 150 feet. The crown sheet or roof of the fire box was torn downward and out and left behind on the trailer frame.
The rear of a locomotive boiler is a double-walled affair, the fire box being a built-in compartment—in this case about 6 feet high, 8 long, and 5 wide. At the front is the flue sheet, and on the sides and rear end double walls, a few inches apart and tied together by stay bolts, around which and between the inner and outer shells the water constantly circulates. At the bottom, completely encircling the fire box, is the mud ring, a massive sill to which are fastened and from which rise upward the inner and outer shells.
The crown sheet, in this case, was attached to the tops of the side sheets by longitudinal autogenous welds from which it curved upward and inward into a flat arch. At the rear end, it joined the inner shell of the "back head," and in front, the top of the flue sheet. The crown sheet was tied to the roof of the boiler by radial stays which, like the stay bolts on the sides, were, at the fire box end, spaced at regular intervals of 4 inches. There were some 580 radial stays alone. The fire box ends of the stays and radials were threaded into and through the sheets, and the heads riveted.
Rising upward and backward at something like a 45 degree angle from a point below and back of the flue sheet was a transverse wall or arch of brick. Its upper end was below a line drawn transversely across the lower side of the crown sheet and just forward of its center. The purpose was to deflect the flame and heat upward and backward against the crown sheet and along under it into the flues.
Plaintiff's initial evidence of negligence was in sum and effect as follows: The evening before, an inspector and repairman found the following: (1) Water oozing through the crown sheet around the heads of about 8 or 10 radial stays. They were "close to the flue sheet in the center * * * towards the front end." (2) The welded side seams "had 7 or 8 pinholes in them." (3) There was a crack below the flue sheet on the left side and a welded patch on the left front corner on the mud ring through which there was a leak.
Each of these leaks was repaired by the mechanic who testified concerning them. He "got the stays fixed all right, and the pinholes fixed all right, and the pinholes in the weld in the bottom and where the crown sheet was welded to the side sheets." Such leaks are common because of the extreme thermal changes to which the structure is subjected, and no way has been found to prevent them.
Another witness for plaintiff testified that generally these defects indicated "poor workmanship." Upon being asked whether they "would add to the weakness of the crown sheet," his reply was, "it would add to the weakness of the fire box." His final conclusion was this: "In my opinion these leaks would weaken the fire box." He would have "pulled the engine out of service until properly welded, * * * it was not in proper condition to operate * * * because of the weakness of the firebox by those leaks." There was other evidence for plaintiff which if believed would have warranted the conclusion that, a few minutes before the explosion, the boiler was foaming, but that the water glass and gauge cocks were free from obstruction, and indicated at least 9 inches of water over the front and higher end of the crown sheet. This testimony was so self-characterized as to relieve the jury from the necessity of believing it. There was no fusible plug, but its absence was not considered noteworthy by counsel for plaintiff, apparently with good cause. See Baltimore & Ohio Railway Co. v. Groeger, 45 S. Ct. 169, 69 L. Ed. ___ (opinion filed January 5 1925). The evidence, pro and con, of a thin layer of scale on the crown sheet is immaterial to the issues on this appeal.
During all of plaintiff's case in chief, the crown sheet was in the courtroom, but counsel, as was their privilege, rested the case without offering it in evidence. For defendant it was immediately introduced. At the front end, the top of the crown sheet was 4¾ inches higher than at the rear, so that if the water lowered and exposed any portion of the crown sheet, the exposure would begin at the front end and extend backward and downward as the process continued. The portion thus progressively exposed would be, roughly, in the shape of an isosceles triangle, with its base at the front.
Defendant's whole purpose was to show that the water fell so as thus to expose a considerable portion of the crown sheet. Its present appearance, as we get it from the photographs and the testimony, is very presuasive of that view. There is a triangle of freshly burned iron with a base of about 36 inches, and its peak some 44 inches rearward from the front and on the crest of the crown sheet. In the center of the burned area, the metal has been heated into a soft and leathery state. Through this point an irregular hole was torn. The force was downward. There is no other portion of crown or side sheets disclosing such a phenomenon. Aside from the triangle, there was no burned iron in the crown or side sheets. A significant fact is that the spot which seems to have suffered the most burning, and through which the initial burst seems to have occurred, was at the point of maximum heat over the brick deflecting arch.
Returning now to the enumerated defects brought out by plaintiff's evidence, there was nothing to indicate that any one of them contributed to the explosion. The autogenous welds at the junction of crown and side sheets show no evidence of burned metal or an initial or any outward break through the seam. One side sheet was torn from the crown sheet along the weld as neatly as paper is torn by hand, without any bending of the torn edges. The same is true of the other side, except that here a portion of the crown sheet, about 14 inches wide and 32 inches long, was held by the autogenous weld, torn out of the crown, and left on the side sheet. At the front end, the crown sheet tore away part of the flue sheet to which it was fastened.
There is no evidence of burned iron other than in the triangular space, and that contains the only indication of an initial weakness and consequent giving away under boiler pressure. The ends of the radial stays which had projected through the triangle had been softened by burning. No other radial stays or bolts throughout the whole area of crown sheet and side sheets were in that condition. The physical facts come near to demonstrating that the burning of the crown sheet caused the explosion.
Some of the leaky stays may have been in the burned area. This is not important, because such a leak in a cold boiler does not indicate danger. It would take a good many, and bad ones, in a confined area, to be of present importance. On this point, an expert witness for plaintiff testified that
1. On rebuttal, the crown sheet having been put in evidence by defendant and subjected to much explanation, particularly as to the persuasive significance of the triangle of burned iron, plaintiff called a local blacksmith and attempted to qualify him as an expert in welding, and then asked: "Whether or not that is a perfect or an imperfect weld." An objection was sustained on the ground that the question was not proper in rebuttal. After argument, the court's view was unchanged, and plaintiff offered to show "that the welding in question (between crown and side sheet), is defective and...
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