Rigg v. Chicago, B. & Q. R. Co.

• Decision Date: 02 June 1919
• Docket Number: No. 20113.,20113.
• Citation: 212 S.W. 878
• Parties: RIGG v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Supreme Court

212 S.W. 878

RIGG v. CHICAGO, B. & Q. R. CO.

No. 20113.

Supreme Court of Missouri. Division No. 1.

June 2, 1919.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by George L. Rigg against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

H. J. Nelson, E. M. Spencer, and M. G. Roberts, all of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

RAGLAND, C.

This is an action to recover damages for personal injuries received by respondent while working as an engine wiper for the appellant in its roundhouse at Hannibal, Mo. It comes here on appeal from the Buchanan circuit court.

At and prior to the time of respondent's injury it was the practice of appellant to have the boilers of its locomotive engines washed in its roundhouse upon the incoming of the engines from trips on the road. The method pursued was this. The fire was knocked from the fire box while the engine was still outside of the roundhouse, and it was then run in under its own steam and stopped over a pit about 60 feet in length, about 3 feet in width and about 3 feet in depth. It required a pressure in the boiler of at least 40 pounds to move the engines, and sometimes the pressure was as much as 120 pounds when the engine reached its place in the roundhouse. After the engine reached its place, the next thing to be done was, in the vernacular of the roundhouse operatives, to "bust" it; that is, get the steam out of the boiler and thereby remove all pressure. This was done by attaching one end of a hose to what is called the "blow-off pipe" of the boiler and the other to a system of piping in the pit that connected with a large vat outside of the roundhouse that received the steam and hot water called a "sump." A valve in the blow-off pipe, known as the "blow-off cock," was then opened and all the steam and hot water was blown from the boiler into the sump. The engine was then "busted" and ready for the boiler washers. A card indicative of that fact was hung on its side. On all of the apappellant's locomotive engines that were washed in its roundhouse at Hannibal there were a number of washout plugs, usually six, located in the barrel of the boiler along the bottom line of the fire box. Through the orifices made by removing them the mud and sediment was washed out of the boiler. The washout plugs were never removed until the engine was "busted"; otherwise, the hot water and steam would have been ejected with tremendous force by the pressure in the boiler.

Just immediately before his injury respondent was in a pit under an engine cleaning oil cups on the eccentric rods. While he was so engaged one of appellant's boiler washers, preparatory to washing the boiler, removed a washout plug in the boiler of an engine that had not been "busted," and which was standing over a pit parallel with that in which respondent was working and about 10 feet distant therefrom. The washout plug so removed was on the side of the boiler next to where respondent was, and he was severely scalded and burned by the water and steam.

The petition predicates the right of recovery on three alleged negligent acts: (1) Removing the washout plug without first having removed the steam; (2) removing the plug without having taken any precaution to ascertain whether the steam had been removed; and (3) removing the plug without having given warning to plaintiff or other employés working in and about the engine.

The answer admits that Simon Anderson "a servant of the defendant employed to fill engine boilers with water removed the washout plug from the boiler of an engine standing upon an adjacent and parallel track close to the one upon and under which plaintiff was at work; admits that there was a high pressure of steam in the said engine at the said time, and that the said steam and water escaped through the opening made by said washout plug, and was thrown upon the plaintiff and he was thereby burned and scalded; but the defendant avers the fact to be that said Anderson, in removing the said washout plug, was acting entirely beyond and outside of the scope of his duties." etc.

The court in its principal instruction, given at the request of plaintiff, hypothecated the plaintiff's right to recover on their finding defendant guilty of all three of the acts of negligence averred in the petition.

The plaintiff laid his damages at the sum of $100,000. The jury returned a verdict in his favor, assessing his damages at $25,000. The trial court required a remittitur of $10,000 and judgment was rendered for $15,000. Other facts necessary for an understanding of the questions involved will be stated in connection with their consideration.

Appellant makes two assignments of error. First, the giving of the plaintiff's principal instruction, and, second, the failure of the court to grant a new trial because the verdict is so excessive as to be indicative of passion and prejudice on the part of the...