Narey v. Minneapolis & St. Louis Railroad Co.
| Decision Date | 29 September 1916 |
| Docket Number | 30233 |
| Citation | 159 N.W. 230,177 Iowa 6 |
| Parties | E. J. NAREY, Appellee, v. MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.
ACTION to recover damages for personal injuries. There was a trial to a jury, and a verdict and judgment in favor of plaintiff for $ 1,000, from which defendant appeals.
Affirmed.
W. H Bremner, F. M. Miner and C. H. E. Boardman, for appellant.
Bradford & Johnson, for appellee.
The issues, as plaintiff states them, are substantially these:
Plaintiff claimed that defendant was a railroad corporation of Iowa owning and operating a railroad in Marshall County and the state of Iowa; that plaintiff was employed as a machinist's helper in the defendant's shops at Marshalltown, Iowa, until about July 26, 1912, when he was transferred as such helper to work in its roundhouse at night under a machinist, at work that was required of him by said machinist and was under the latter's direction and control; that he was unfamiliar with the work and unaware of danger incident to his said employment, which was known to defendant, who failed to inform him of the same; that it was its duty to furnish safe instrumentalities to do work, and it neglected to do so; that, on August 20, 1912, as such helper, he was under an engine to pack truck cellars at a place which, in violation of defendant's duty, was not lighted; that defendant, knowing same could not be done, as it was not lighted, undertook to furnish plaintiff with an oil can or torch to use, so as to see to do said work; that the can so furnished was unsafe and unfit for such use in such work in this: that it was so constructed that, when lighted (the spout [burner] that carried the oil from the can), when lighted and in use, the flames from wick came in contact with sides of spout and sides of can and heated the oil therein, and caused gas and vapor of an inflammable and highly explosive character to be emitted from said oil and collected in said spot and can, thereby rendering it dangerous, unsafe and unfit for use and liable to explode, unless a vent or means of escape was provided for said gas and vapor, which was not done; all of which was unknown to plaintiff and was known to the defendant, or should have been known; and defendant neglected and failed to warn plaintiff of same and was negligent in failing to furnish a safe can to do such work; that said can, so furnished and unknown to plaintiff, exploded by reason of its construction, as aforesaid, and threw burning oil in plaintiff's face and eyes, and seriously and permanently injured him.
Defendant admitted its corporate capacity; denied all other allegations of the petition; pleaded contributory negligence and assumption of risk.
Plaintiff's evidence tended to sustain the allegations of the petition. There is evidence that the defendant maintains a roundhouse at Marshalltown, Iowa, where all engines for intrastate and interstate runs are brought in for oiling, inspection and repair. Plaintiff had been in appellant's employ in its shops at Marshalltown for 2 1/2 years, prior to July 26, 1912. On the last named date, he was changed by defendant's foreman from the shops to the roundhouse, as a helper there. That night, the foreman told him to help the night machinist in the roundhouse, and gave him an order for a torch and wick for it. No warning or instructions were given as to the use of the torch or of the alleged dangers incident thereto. Kerosene oil was used in the torch. The torch in question is a teapot shaped affair, with a handle, spout, and a screw cap for filling. Enough wicking is pulled into the spout so that the friction and pressure hold the wick in place. When saturated with oil, the wick swells, and the spout becomes airtight. The torch was intended for use at different angles and positions, to see around and under the engine while employees were at work. The torch furnished was a new one, and as furnished by the manufacturer. The torch did not leak, and no complaint is made of it except as to the matter of a vent. There was no vent in the top of the torch or along the side of the spout. Some of the employees, after a torch was furnished them, made a hole in the screw cap with a nail. A witness for plaintiff who had been in defendant's employ as a machinist's helper in the roundhouse for five years, testified that, during that time, he had had two torches blow up, and had seen three or four others blow up. These had no vents: some of the torches used had vents, and these did not blow up. Another witness testifies substantially the same way, and that, if the torches do not have vents, he has seen them blow up or blow the wick out, and if the wick is in solid so that it cannot blow out, the top has to go off; that "it is the gas--oil--getting hot in there, and no vent in it, explodes," as he puts it. Defendant's foreman said he knew that torches exploded there in the roundhouse. On the other hand, testimony for defendant is that a vent in the torch is a source of danger; that the object in constructing the torches is to have them airtight, so that they can be used in all positions and not leak oil; that a vent or nail hole in the cap is a source of danger, because, as constructed, the torches are air-tight, and a vent would defeat this purpose; that, with a vent, the oil will leak out over the body of the torch, and dirt will collect on it, which oil, coming into contact with the flame, will ignite, melt the solder and cause an explosion. On the night of the accident, plaintiff took his torch from his private cupboard, filled it and trimmed the wick, then went to do his work in the pit under the engine, packing the engine boxes with waste and oil. In the earlier part of the night, he had so treated an engine which was to go to a point in Minnesota. After this, he went to engine No. 446, to pack the engine boxes, or cellars. When he reached this engine, it was not ready for him; and he set the torch down by the pilot, where the flames would blow against the torch. When the engine was ready, he picked up the torch and set it on the ledge of the pit; and as he again picked it up, there was an explosion, causing his injuries. Without the torch, there was not sufficient light to do his work. There is nothing to prevent the blaze from coming against the spout and side of the torch, and in handling the torch, there is nothing to prevent the blaze from coming back on the torch from the spout. Plaintiff says he did not know anything about the torches before he was transferred. Plaintiff was burned in the neck and face, inside of the mouth and throat, and his eyes were burned and injured. When he was hurt, he was earning $ 2.22 1/2 a night. There is no evidence as to what use engine No. 446 was to be put to after it had been put in condition,--whether it was to be used in interstate or intrastate business. There is no evidence showing that this engine had ever been used in interstate business, or that it ever would be. This is conceded by appellant in argument. It is also conceded by appellant that plaintiff's petition makes a case under the state law. No claim is made in the petition that plaintiff was engaged in interstate commerce at the time he was hurt, nor is any recovery asked under the Federal law. The defendant did not, by its answer or otherwise, plead that the transaction in which plaintiff was engaged at the...
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Narey v. Minneapolis & St. L. R. Co.
... ... , of Marshalltown, for appellee.PRESTON, J.The issues, as plaintiff states them, are substantially these:Plaintiff claimed defendant was a railroad corporation of Iowa, owning and operating a railroad in Marshall county and the state of Iowa; that plaintiff was employed as a machinist's helper in ... ...