Orris v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 25 June 1919
• Docket Number: No. 19034.,19034.
• Parties: ORRIS v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Supreme Court

214 S.W. 124

279 Mo. 1

ORRIS v. CHICAGO, R. I. & P. RY. CO.

No. 19034.

Supreme Court of Missouri, in Banc.

June 25, 1919.

Appeal from Circuit Court, Grundy County; George W. Wanamaker, Judge.

Action by John 0. Orris against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Platt Hubbell and Geo. H. Hubbell, both of Trenton, for appellant.

Paul E. Walker, of Topeka, Kan., and A. G. Knight, of Trenton, for respondent.

GRAVES, J.

Whilst in the service of the defendant as fireman upon an interstate train, the plaintiff lost his left eye by reason of a burning or hot cinder escaping from defendant's engine. Plaintiff says the defendant was negligent in furnishing to him and his crew an engine which was out of repair, and that his injury was the result of such negligence.

The action is one under the federal act. Act Cong. April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. §§ 8657-8665). He states the alleged negligence of the defendant thus:

"Said engine was defective in that some of the flues of said engine permitted water to leak onto the flue sheet from the boiler of said engine, and in that some of the flues of said engine were stopped up, honeycombed with impurities and chemicals from the coal and parts of the coal and cinders, and some of said flues were stopped and filled with a mixture of cinders and coal formations, which prevented said flues from performing their proper function and which prevented the passage of smoke and flame through them; and said condition of the aforesaid flues was caused by the negligence of the defendant; and said condition of said flues required the other and remaining flues of said engine to do the work of those which were so stopped up and filled, and caused said remaining flues, which were open, to draw abnormally and unreasonably on the fire of said engine, and caused said remaining and open flues to pull ignited particles of coal and pieces of slack through said open and remaining flues, before said ignited pieces of coal and slack had been thoroughly burned and while the same were afire and alive and burning, and caused said ignited pieces of coal and pieces of slack to escape from the smokestack of said engine as live cinders, burning and afire; and said engine was defective in its smoke box netting and defective in its diaphragm and its deflector plate and defective in its other apparatus and equipment for the prevention of the escape of burning and live cinders from its smokestack; and said engine was defective in its steam valves, and said steam valves on both sides permitted steam to escape up the smokestack without going into the cylinders of said engine, and said escaping steam contributed to the passage of live and burning cinders and live and burning pieces of coal and slack up and through the smokestack of said engine; and said engine, by reason of the aforesaid defects, and by reason of other defects now unknown to the plaintiff, threw an unusual, unreasonable, and extraordinary amount and quantity of burning coal, burning and live pieces of slack, and burning and hot cinders from its smokestack; and in its running and progress on the aforesaid date said engine emitted and threw out large quantities and amounts of burning and flaming pieces of coal and slack; and said engine then and there was not in a reasonably safe condition to be run and operated on said trip over the defendant's said track.

"The aforesaid defective condition and defects of said engine were then and there well known to the defendant, and the defendant might have known of the same by the exercise of reasonable care and diligence.

"The defendant, by the means and in the manner aforesaid, then and there and thereby negligently failed to furnish the plaintiff and his crew with a reasonably safe locomotive engine; and the defendant then and there and thereby negligently required the plaintiff and his crew to work with a locomotive engine which was not reasonably safe."

In its answer the defendant admitted its corporate capacity, and that it was a common carrier of both passengers and freight for hire. Its further answer was: (1) A general denial; (2) assumption of risk; and (3) contributory negligence. The reply was in conventional form. In the trial nisi the defendant had a verdict and judgment, from which the plaintiff has appealed.

As fireman on engine No. 2028, the plaintiff left Trenton, Mo., for Horton, Kan., a distance of 120 miles. There is no question of the interstate character of the train which was pulled by this engine on January 31, 1914, the date of the injury. This train left Trenton early in the morning and reached Horton about 5 or 6 o'clock in the afternoon. At Jamesport Hill (something near 10 miles from Trenton) plaintiff in the performance of his duties leaned out of the cab window to look for a semaphore, which would indicate "a block" of the road, by some other train, which train was then expected. Whilst so doing he was struck in the left eye by a hot cinder from the smokestack of the engine, and from the injury received to this eye it had to be removed in a very short time thereafter, and plaintiff thereby was rendered unfit for further railroad service. Plaintiff says that he saw the cinder just as it struck him, and saw a portion of it as it fell off, and glanced toward the ground. He says that he knows that it was larger than a pea, and in more than one place says that in his judgment it was more than a quarter of an inch through— from a quarter of an inch to three-quarters of an inch, is his positive evidence in more than one place in the record.

Engine No. 2028, was called an engine of the 2000 class. At the rear was a fire box, where the firing was done, and in which would be gas, flame, smoke, cinders, coal, and fire. From a flue sheet in this fire box in the rear ran 340 flues, 2 inches in diameter, 6 inches in circumference, and 15 feet long, to a flue sheet in the "smoke box in the front of the engine. The exhaust of steam by the engine creates a vacuum in this smoke box," and the suction draws the gas, smoke, and cinders through these flues from the fire box to the smoke box. The cinders (coming through these flues and as they reach the smoke box) strike a deflective plate, and by suction are drawn toward the front of the smoke box up through a netting or spark arrester, and are then expelled through the smokestack. This wire netting is of a 3/16-inch mesh, but it is so arranged that the cinders do not strike it at right angles. It is slanted so that the cinders strike it at a different angle, and the experts in the case say that, owing to the slant of this wire netting (if the netting is sound and not burned out or broken), the cinder which passes through would have to be less than 3/16 of an inch in diameter. These experts say that with a sound netting or spark arrester the cinders passing through would be of the size of a pinhead to a grain of wheat.

Plaintiff testified that about one-fourth of the 340 flues in this engine were clogged up and not working, and he and other experts say that the effect of this would be to have the other flues draw harder, and thereby draw larger burning cinders from the fire box to the smoke box, which larger and hotter cinders might accumulate on this cinder screen or spark arrester and burn it out.

They say that the remaining flues have to draw harder because the vacuum which is to be filled is the same, and the flues to fill it are less in number. The evidence of the experienced men fix the size of the largest cinder which can pass through a perfect or sound spark arrester at the size of a grain of wheat. Plaintiff himself was a man of long experience with an engine, but this evidence comes from others of equal experience, and disinterested in the case.

Plaintiff testifies to the size of the cinder which struck him, and says that a cinder of that size could not have passed through the mesh of an arrester as used upon that class of engine, if the arrester had been in good condition. Defendant's evidence tended to prove that the engine had been inspected both before and after the trip made by plaintiff (upon which trip he was injured), and that the flues and spark arrester were in good condition. Further details will be left for the opinion. The assigned errors here go to the giving of sundry instructions for the defendant, and the exclusion of certain evidence offered by the plaintiff.

I. The plaintiff says that there was error committed by the court in giving for defendant its instruction No. 1, which reads:

"The court instructs you that the mere fact that plaintiff was injured while employed by defendant( and the fact that he has sued to recover damages therefor, are of themselves no evidence whatever of the defendant's negligence or liability in this case, and there can be no recovery by the plaintiff in this case, unless the plaintiff has, by a preponderance of the credible evidence in the case, established negligence on the part of the defendant, as described in other instructions herein."

We think this instruction misleading and harmful in this case. Let us shorten the instruction so that its view may more fully appear. Thus shortened, it reads:

"The court instructs you that the mere fact that plaintiff was injured while employed by defendant * * * is of itself no evidence whatever of the defendant's negligence or liability in this case, and there can be no recovery by the plaintiff in this case unless the plaintiff has, by a preponderance of the creditable evidence in the case, established negligence on the part of defendant, as described in other instructions herein."

From this instruction the jury could well draw the conclusion that they should not consider the injury to plaintiff in determining the matter of defendant's negligence. They could well draw the conclusion that they should not consider the character of...