Moore Lime Co v. Johnston's Adm'r

• Decision Date: 29 September 1904
• Parties: MOORE LIME CO. v. JOHNSTON'S ADM'R.
• Court: Virginia Supreme Court

48 S.E. 557

103 Va. 84

MOORE LIME CO.

v.JOHNSTON'S ADM'R.

Supreme Court of Appeals of Virginia.

Sept. 29, 1904.

master—death of servant — negligence-evidence—sufficiency—allegation and proof—variance—appeal.

1. An objection because of variance cannot be raised for the first time in the Supreme Court.

2. In an action against an employer for damages for the death of an engineer, resulting from the explosion of the throttle valve of a. steam engine which deceased was running, evidence examined, and held insufficient to show that the failure to provide a "drip cock" or "by-pass" for the valve constituted negligence on the part of defendant.

3. Negligence having been based on the employment by defendant of an alleged incompetent master mechanic, mere proof that the master mechanic removed from the throttle-valve a "drip cock" which had been attached to it after many years of safe and effective use of the valve without the "drip cock, " is insufficient to sustain the charge of negligence.

4. Evidence held insufficient to show that the employment of plaintiff's intestate as an engineer was negligent because of his youth and inexperience.

5. The mere occurrence of an accident causing injury to an employe does not raise even a prima facie presumption that the master has been guilty of negligence or a breach of duty.

Error to Circuit Court, Botetourt County.

¶ 5. See Master and Servant, vol. 34, Cent. Dig. § 881.

Action by the administrator of J. W. Johnston, deceased, against the Moore Lime Company. Judgment for plaintiff, and defendant brings error. Reversed.

Shelton Moore and R. L. Parrish & Son, for plaintiff in error.

Benj. Haden, for defendant in error.

WHITTLE, J. The defendant in error's intestate, J. W. Johnston, engineer in charge of a stationary engine of the plaintiff in error, the Moore Lime Company, which operated the machinery in their stave factory at Eagle Rock, was killed on the morning of March 17, 1902, by the explosion of the throttle valve of the engine. Thereupon this action was brought by the personal representative of Johnston against the Moore Lime Company to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant.

Upon the trial of the case a verdict and judgment were rendered in favor of the plaintiff, and to that judgment a writ of error was awarded by one of the judges of this court.

At the time of the accident Johnston was about 18 years of age, and had been in the employment of the company for 9 years, working about the engine and boiler and other machinery. He was a young man of more than average intelligence, and was considered especially efficient in operating machinery. For more than a year before he became the regular engineer, he was put in charge as supernumerary whenever the engineer was out of place, and frequently ran the engine for days at a time. He was made permanent engineer January 1, 1902, and filled that position continuously until his death.

The accident occurred on Monday morning at 7 o'clock, and the engine had not been in operation since the close of the working day the previous Saturday. Fairburn, the company's master mechanic, was in the boiler room about 6:30 o'clock Monday morning, and, discovering that the water was too high in the boiler, called Johnston's attention to that fact, and also cautioned him to be careful about starting the engine. The witness had seen Johnston start the engine too quickly at other times, and had warned him of the danger of it. William King was in the boiler room, talking to Johnston, immediately before the accident. He did not actually see him open the throttle valve and turn on steam, but, after Johnston pulled the whistle cord and blew the whistle, he turned, and had only two steps to take to reach the throttle valve. King at the sametime started out of the boiler room, and had hardly reached the outside when the explosion occurred. The shock was so violent that the heavy cast-iron globe valve was shattered, the boiler room door blown open and the room filled with steam, so that some moments elapsed before Johnston could be rescued, and he died a few hours later from the injuries received.

The declaration does not distinctly disclose upon what hypothesis the plaintiff seeks to fix liability upon the defendant; but, as no objection was raised in the trial court for any variance between the allegations of the declaration and the evidence, that question cannot be raised in this court for the first time. Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 801, 22 S. E. 869; Richmond R., etc., Co. v. West, 100 Va. 188, 40 S. E. 643.

The grounds of negligence chiefly relied on here are as follows:

1. It is insisted that the throttle valve of the engine was not provided with a "drip cock, " or "by-pass, " as some of the witnesses call it, for the lack of which it Is alleged that water accumulated in the pipe connecting the boiler with the engine and throttle valve, from condensation, and could not escape. The presence of water, it is said, caused the explosion, either in one of two ways: The water, if not frozen, when steam pressure was turned upon it by opening the valve, caused a "water hammer" in the valve, and burst it; or else the water froze in the valve, and cracked it, and when steam was turned in and entered the valve it produced the explosion.

These theories in regard to the necessity for the "drip cock" are not sustained by the facts in the case. There was no "drip cock" to the throttle valve originally; and no provision made for its use, and the engine had been safely operated for years without that appliance. Indeed the "drip cock" was first attached to the valve by Hammitt (who was employed by the defendant...