Phillips v. Pennsylvania R. Co.

• Decision Date: 12 May 1922
• Docket Number: 3060.
• Citation: 283 F. 381
• Parties: PHILLIPS v. PENNSYLVANIA R. CO. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

283 F. 381

PHILLIPS v. PENNSYLVANIA R. CO. ^[1]

No. 3060.

United States Court of Appeals, Seventh Circuit.

May 12, 1922

Plaintiff fireman on a locomotive attached to a train and then standing at a water plug, after adjusting the spout, obtained a wrench from the engineer and, taking a piece of wire, went forward over the boiler to repair the automatic bell ringer from which a cotter pin had dropped out. This took him about five minutes, and when stepping over the steam dome on his return the safety valve popped, he lost his balance, and fell and was injured. When he left the cab, the pressure was at 180 pounds, and the valve was adjusted to pop at 205. While he was so forward the engineer left the cab to oil the engine. Held that, when he left the cab, plaintiff was at least as well able to judge of the danger as was the engineer, and that in the absence of any evidence that he spoke to the engineer on the subject, or to show the condition of the fire or whether the pressure was rising or falling, a jury would not be authorized to find that the engineer was negligent in leaving the engine and failing to watch the gauge and keep the pressure down.

Walter D. Corrigan, of Milwaukee, Wis., and John H. Kay, of Chicago Ill., for plaintiff in error.

Owen Pickens, of Indianapolis, Ind., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

BAKER Circuit Judge.

At the conclusion of the evidence the jury was instructed to return a verdict for the defendant railroad company, and the resulting judgment is now challenged by this writ of error of the plaintiff Phillips.

Phillips was the fireman and Keelor was the engineer in charge of the locomotive hauling the freight train in interstate commerce. After the train was made up and just before its departure on the trip, the engineer stopped the locomotive at a water plug. It was then observed that the automatic bell ringer was not working. Phillips left his station in the cab; climbed up over the coal and turned the waterspout into the tank of the tender; returning to the cab he asked Keelor for a monkey wrench with which to repair the bell ringer; Keelor handed Phillips the wrench; Phillips took this and a piece of wire with which to replace the missing cotter pin in the attachment of the bell ringer and climbed over the top of the cab and thence along the top of the boiler to the bell ringer at the front end of the locomotive; in thus traveling to the bell ringer he passed over the steam dome of the boiler; while Phillips was repairing the bell ringer, Keelor descended from the cab and proceeded to oil the locomotive; after Phillips had put in the piece of wire in place of the missing cotter pin he started to return to his post in the cab; just as he was stepping over the steam dome the safety valve popped, and Phillips lost his balance and fell to the ground; in the time Phillips started from his post in the cab until the accident happened about five minutes elapsed; Keelor, having finished his oiling, returned to his post in the cab just an instant before the accident happened; Keelor was absent from the cab three or four minutes; when Phillips was about to leave his post in the cab, he turned off the blower, and the steam gauge was then registering 180 pounds; the valve was regulated to lift at a pressure of 205 pounds in accordance with regulations under the Boiler Inspection Act; before and after the accident official inspectors found that the pop valve in fact lifted at the designated pressure; two witnesses for Phillips testified that some time after the accident and again a few days later the pop valve did not lift until a pressure of 215 or 220 pounds was reached.

Counsel for Phillips present three grounds for contending that under the foregoing state of the evidence the railroad company was liable for the damages resulting from Phillips's injuries.

1. Under the Federal Boiler Inspection Act of February 17, 1911 as amended March 4, 1915 (Comp. St. 8630-8639-D) and the rules of the Interstate Commerce Commission made thereunder, the defective condition of the bell ringer was negligence per se. But manifestly in Phillips's journey the defective bell ringer was merely the occasion, and not the proximate cause, of the accident. Though the Employers' Liability Act of April 22, 1908 (Comp. St. Secs. 8657-8665), imposes liability for an injury 'resulting in whole or in part' from negligence in failing to maintain the locomotive in the prescribed condition, nevertheless it necessarily remains true that the partial negligence must be of the same causal nature as if no other element of negligence was present. St. Louis, etc., Ry. Co. v. McWhirter. 229 U.S. 265, 33 Sup.Ct. 858, 57 L.Ed. 1179; Great Northern Ry. Co. v. Wiles, 240 U.S. 444, 36 Sup.Ct. 406, 60 L.Ed. 732; Louisville, etc., Ry. Co. v. Layton, 243 U.S. 617, 37 Sup.Ct. 456, 61 L.Ed. 931; Lang v. New York Central R.R. Co., 255 U.S. 455, 41 Sup.Ct. 381, 65 L.Ed. 729.

2. Respecting the allegation that the pop valve was defective at the time of the accident, there was no evidence which could have justified the trial judge in permitting the jury to base a verdict upon guesswork or conjecture that the cause of the subsequent lifting of the valve at a pressure of 215 or 220 pounds, as testified to by two of Phillips's witnesses, was due to the railroad company's negligence in failing to maintain the valve in lawful condition prior to and at the time of the accident rather than to a subsequent temporary and accidental interference with the springs of the valve.

3. Though the Employers' Liability Act abolishes the 'fellowservant' defense, it does not mean that interstate carriers must in all events pay for injuries to their servants. Otherwise there would be no room for the concomitance of occurrences resulting in an injury, which concomitance was beyond the ordinary prophetic vision, based on experience, of the 'reasonably prudent man.' If the railroad company is to be held liable, it must be because Keelor, as a reasonably prudent engineer, failed to foresee the probability that the concomitance of the above recited circumstances, uniting at a fraction of a second of time, might result in an injury to Phillips. The case, therefore, should be viewed as if Phillips were suing Keelor for the damages.

Phillips fell off the engine because the pop valve lifted; the pop valve lifted because the steam pressure increased from 180 pounds to 205 pounds during the few minutes that Phillips was absent from his fireman's post; and the 25 pounds of increase in steam pressure during those few minutes was due to the condition and action of the fire during that same time. The record is devoid of any evidence tending to show the condition of the fire when Phillips left it; or to show from readings of the pressure gauge or otherwise prior to and at the time when Phillips left his post whether the pressure was falling or rising, or had been for some time remaining stationary; or to show whether Phillips had been shoveling in large lumps of coal which would tend to smother the fire, or had been heaping in coal dust which might as effectually inflame the fire as would powder. The record is devoid of any...