Pryor v. Chicago, R.I. & P. Ry. Co.
| Decision Date | 27 November 1934 |
| Docket Number | 22982. |
| Citation | 39 P.2d 563,170 Okla. 158,1934 OK 686 |
| Parties | PRYOR v. CHICAGO, R.I. & P. RY. CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 27, 1934.
As Corrected Jan. 11, 1935.
Syllabus by the Court.
1. In cases arising under and based upon the Federal Employers' Liability Act (35 Stat. 65, c. 149, U.S. C., title 45, c. 2 [45 USCA § 51 et seq.]), and the Federal Boiler Inspection Act, § 2 (36 Stat. § 913), as amended June 7, 1924 (43 Stat 659, U.S. C., title 45, § 23 [45 USCA § 23]), the decisions of the federal courts construing those statutes relative to the kind and amount of evidence required to show liability for damages by the carrier are controlling.
2. The record examined, and held, that in this case the plaintiff's evidence is insufficient to show a violation by defendant of the Federal Boiler Inspection Act, and further, that the evidence is insufficient to show a causal connection between the condition of the appliance in question, whatever that condition may have been or however that condition may have arisen, and the death of plaintiff's decedent.
Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.
Action by Viola Pryor, administratrix of the estate of Cleve Pryor deceased, against the Chicago, Rock Island & Pacific Railway Company. From a judgment sustaining a demurrer to plaintiff's evidence and dismissing the action, plaintiff appeals.
Affirmed.
Morrison, Morrison & Morrison and Ledbetter, Stuart, Bell & Ledbetter, all of Oklahoma City, for plaintiff in error.
W. R. Bleakmore, John Barry, W. L. Farmer, and Robert E. Lee, all of Oklahoma City, for defendant in error.
This action was commenced in the district court of Pottawatomie county, Okl., by Viola Pryor, as administratrix of the estate of her deceased husband, Cleve Pryor, against the Chicago Rock Island & Pacific Railway Company, to recover damages for the death of her husband while in the employ of the defendant. The trial court sustained a demurrer to plaintiff's evidence, and dismissed the action, and the plaintiff appeals.
The action is based on the Federal Employers' Liability Act of 1908, 35 Stat. 65, c. 149, U.S.C. title 45, c. 2 (45 USCA § 51 et seq.), and the Federal Boiler Inspection Act of 1911, 36 Stat. 913, § 2, as amended June 7, 1924, 43 Stat. 659, U.S.C. title 45, § 23 (45 USCA § 23). The defendant admits that it is a corporation operating a line of railway as a common carrier in interstate commerce, and concedes that the acts of Congress mentioned govern the case.
The amended petition of plaintiff alleges that the proximate cause of the death of plaintiff's decedent was the faulty operation of an injector on the locomotive of which he was fireman at the time of his death; it being alleged that the appliance mentioned was defective in violation of the Federal Boiler Inspection Act, and that the deceased, while leaning out of his cab window in an endeavor to get the alleged defective injector in good order, was struck on the head and instantly killed by girders on the side of a bridge on defendant's line of railroad. It is also alleged in the amended petition that a valve in the water tank in the tender of the locomotive was defective, in that it was attached by means of a loose wire instead of bolts to a rod, which condition caused the valve to operate improperly and obstructed the flow of water from the tank through the injector into the boiler. It was also alleged that foreign substances had collected in the water tank, clogging the orifice through which the water flows into the injector and from thence into the boiler. It was further alleged by plaintiff that defendant was negligent and failed to provide a safe place of work for plaintiff's decedent by reason of the fact that there was a clearance of only 22 inches between the sides of the bridge on which the deceased was killed and the cab window of the locomotive on which he was riding, and that it was necessary for the deceased to lean out of his cab window at least 26 inches in order to observe the operation of the alleged defective injector, and that as he did so he was killed by being struck by girders at the side of the bridge.
The defendant answered by a general denial and by pleading that the deceased's death was caused solely by his own negligence and want of care, and pleading further assumption of risk with respect to the clearance on defendant's bridge.
The evidence on the part of plaintiff, in brief, is as follows:
Cleve Pryor, plaintiff's decedent, for many years prior to July 12, 1926, the date of his death, had been employed as a fireman by the Rock Island Railway Company. For several years he had been on the regular passenger run between Booneville, Ark., and Shawnee, Okl. On the morning of July 12, 1926, Fireman Pryor, plaintiff's decedent, and Engineer Martin, at Booneville, Ark., received engine No. 831, drawing west-bound passenger train No. 111. The locomotive was equipped with two injectors of the type known as the "simplex"; it appearing by the testimony of experienced railroad men that this type of injector is standard equipment. An injector on a locomotive is a device by which water is drawn from a water tank located in the tender by means of steam drawn into the injector from the boiler, which creates a vacuum, starting the water to run from the tank into the injector proper and from thence it is forced into the boiler. On this locomotive there were two injectors, one located on the right or the engineer's side of the cab and the other on the left or the fireman's side, and the testimony is that all locomotives of that type are now so equipped with two injectors. It is usual for only one of the injectors to be used at a time. The engineer is charged with the duty of seeing that all appliances in his locomotive are properly operated and to see that the boiler is properly kept filled with water through the injectors. It was the practice on the Rock Island Railway and by Engineer Martin and Fireman Pryor to use generally the injector on the left side of the locomotive, which was operated by the fireman. When Engineer Martin and Fireman Pryor took the locomotive at Booneville, Ark., to start on their run to Shawnee, Okl., on the morning of the fatal accident, they made an inspection and found everything in good order. They particularly inspected and tested the injectors and found them working properly. Their train proceeded from Booneville to a place known as Penola about 2 miles east of Fourche Maligne bridge, which is located about 3 miles east of Wilburton, Okl. During all of this time Fireman Pryor was operating the injector on his side of the cab and the engineer was not using his injector. At the point about two miles east of the bridge, Pryor seemed to have difficulty in getting his injector to work, and Engineer Martin says Pryor called to him, saying, "Billie, put on your injector." The engineer testified that he immediately put the injector on his side of the cab in operation. He said that he then observed Fireman Pryor still working with his injector, and says that he called to the fireman and said to him, "Leave the injector alone, Charley, and we will see what is the matter with it when we get to Wilburton." Pryor was leaning out of his cab window to observe an overflow pipe extending from the injector down through the cab floor and curving outward to the side of the locomotive underneath and back of the cab window. When the locomotive reached the bridge at Fourche Maligne, and while the locomotive was on the bridge, Engineer Martin observed Fireman Pryor slumping back into the cab. The engineer immediately stopped the locomotive while still on the bridge and went to the assistance of the fireman. He found Pryor's head and face covered with blood and ascertained that he had been killed instantly by being struck on the head, presumably by some object on the outside of the cab, and the engineer testified that it must have been one of the steel girders at the side of the bridge. The head brakeman was then placed on the engine as fireman, and Engineer Martin ran the train to Wilburton, where the body of Pryor was taken off and placed in the baggage car. The train was then run a few miles further to Haileyville, where Engineer Martin was relieved by another engineer and fireman. At Haileyville, mechanics of the defendant railway company were called, and, after an inspection of the injector on the fireman's side, finding it to be hot and not capable of being operated properly, this injector was removed and placed in the leg or pocket of the water tank in the tender. The injector on the engineer's side of the locomotive was then removed and placed on the fireman's side, and the train was then run into Shawnee, where the injector that had been removed was taken to the machine shops of the defendant at Shawnee. Engineer Martin and other employees of the defendant railway company were called as witnesses by the plaintiff, and testified that on the locomotive on which the fatal accident occurred an overflow or discharge pipe extended downward from the injector through the floor of the locomotive cab, and then curved outward to the edge of the locomotive, so that the overflow or discharge from this pipe was thrown into the atmosphere.
Several witnesses testified that a common method of ascertaining whether or not the injector was properly operating by drawing water from the tank in the tender through the appliance to be injected into the boiler was for the operator to observe whether there was any overflow or discharge of water and steam from the overflow pipe under the engine; it being testified that, if there is a considerable overflow, it is an indication that the water is not being...
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