Sparkman v. Wabash R. Co.

• Decision Date: 08 June 1915
• Docket Number: No. 13999.,13999.
• Citation: 191 Mo. App. 463,177 S.W. 703
• Parties: SPARKMAN v. WABASH R. CO.
• Court: Missouri Court of Appeals

177 S.W. 703

191 Mo. App. 463

SPARKMAN v. WABASH R. CO.

No. 13999.

St. Louis Court of Appeals. Missouri.

June 8, 1915.

Appeal from Circuit Court, Monroe County; Wm. T. Ragland, Judge.

Action by Samuel Sparkman, Jr., against the Wabash Railroad Company. From order granting a new trial after verdict for defendant on the ground that error had been committed in giving instructions for defendant, it appeals. Reversed and cause remanded, with directions to reinstate the verdict and enter judgment for defendant thereon.

J. L. Minnis, of St. Louis, and David H. Robertson, of Mexico, Mo., for appellant. Phillips & Phillips, of Moberly, A. T. Stuart, of Paris, and M. J. Lilly, of Moberly, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant as a locomotive engineer. On November 9, 1910, while plaintiff was in charge of a locomotive engine of the defendant drawing a train of freight cars and proceeding from Hannibal to Moberly, in this state, the fire box of the engine "let down," causing an explosion, whereby plaintiff was slightly burned upon the wrist, and it is claimed that later, by reason of the explosion, his hearing became affected. It appears that the plaintiff had driven this engine with a train of freight cars from Moberly to Hannibal on the previous evening, and that at 1:20 a. m. on November 9, 1910, he began the return trip to Moberly. He had proceeded but about 12½ miles from Hannibal when the explosion occurred. The petition alleges that defendant negligently provided plaintiff with a locomotive that was dangerous, defective, and unsafe for use, in that—

"the crown sheet of said engine and the fastenings by which it was held in place were weak, defective, and insecure, and liable to break and give way, thereby causing the boiler of said engine to explode."

The testimony adduced by plaintiff to support these allegations of the petition will be noticed later. Plaintiff's evidence shows that the engine left Hannibal with both the tank and boiler full of water, and tends to show that sufficient water was kept in the boiler to cover the crown sheet above the fire box until at least a few minutes prior to the accident. The testimony of plaintiff and the fireman respecting the stage of the water in the boiler shortly prior to the explosion need not be stated. While it is to the effect that there was water over the crown sheet within a few minutes of the explosion, it does not appear to be inconsistent with the theory of the defense that in running down hill, after ascending an upward grade for about eight miles, the water ran forward in the boiler, and because of insufficient water therein the crown sheet was left uncovered, causing it to be burned out. And much testimony was adduced by defendant relative to the condition of the engine after the explosion, and expert opinions thereupon, tending to show that the crown sheet burned out and, dropped from the stay bolts because it was not kept covered with water. The trial, before the court and a jury, resulted in a verdict for the defendant. Thereafter the court sustained plaintiff's motion for a new trial upon the ground that error had been committed in giving three instructions for defendant. These instructions, numbered 1, 2, and 5, are as follows:

"(1) The court instructs the jury that the burden is upon the plaintiff in this case to establish, to the reasonable satisfaction of the jury, by the greater weight of the evidence given in the case, that the plaintiff was injured by reason of defective radial stays in the crown sheet of said engine, and that by reason of said defective radial stays, and from no other cause, said crown sheet gave way and caused the explosion, and that plaintiff was injured thereby and, unless the plaintiff has so proven to your satisfaction, you will return a verdict for the defendant.

"(2) The court instructs the jury that you cannot consider any defect in any part of the fire box of said engine, except such defects as the evidence shows were in the crown sheet at the time of or prior to the explosion, and you will disregard all evidence in the case as to any defective stay bolts or radial stays in any other part of the engine, except in the crown sheet; and, unless you believe from the, evidence in the case that the explosion occurred as the result of defective radial stays in said crown sheet, then you will return a verdict for the defendant."

"(5) The court instructs the jury that if you are unable to determine, from the evidence in the case, the cause of said explosion, or if it appears as reasonable to you that said explosion was the result of water becoming low on or around said crown sheet as that it may have been due to defective radial stays in the crown sheet, then you will return a verdict for the defendant."

Plaintiff's main instruction, following the lines of his petition, authorizes a recovery if the jury find that the explosion was caused by the negligence of defendant in furnishing plaintiff with an engine which was defective and unsafe for use by reason of the crown sheet and the fastenings thereof being weak, insecure, etc. This includes defects, if any, in the crown sheet itself as distinguished from the "fastenings" thereof, i.e., the stay bolts or radial stays. Defendant's instructions, on the other hand, withdraw from the consideration of the jury any defective condition of the crown sheet separate and apart from the radial stays thereof. Defendant's instruction No. 2 does permit a consideration of defects in the crown sheet, but only in the radial stays therein as though such stays formed a part of the crown sheet.

Though the petition is broad enough to cover defects in the crown sheet generally, it was proper to confine the issue to the specific defects alone which the evidence tended to establish. For no matter how broad the petition may be, the instructions should submit only the specific negligence developed on the trial by the evidence adduced. See Feldewerth v. Railroad, 181 Mo. App. loc. cit. 640, 164 S. W. 711; Miller v. United Rys. Co., 155 Mo. App. 528, loc. cit. 546, 134 S. W. 1045.

The immediate question for consideration, therefore, is whether or not there is any evidence in the record to authorize the submission to the jury of any defect in the crown sheet apart from defective stay bolts. The crown sheet is that portion of the boiler directly above the fire box of the engine, forming the roof of the fire box. Because of the great pressure upon it from above, and the fact that the fire is immediately beneath it, the crown sheet is supported by a great many bolts, or rods, extending through it and fastened into the boiler above, termed stay bolts or radial stays. It appears that there were more than 400 of these in this crown sheet, the heads thereof being about four inches apart in the roof of the fire box.

There is no evidence of any crack or other like specific defect in the crown sheet; and the only testimony that lends any color of support to respondent's contention in this regard is that of the witness Hopson, who was a boiler maker in the employ of the defendant at the time in question. He testified that he had examined this engine in Moberly, in the forenoon of November 8, 1910 the day prior to the explosion. When askew as to the condition in which he found it, he answered:

"I found five broken stay bolts and about six bolts pulling through the sheet."

His further testimony touching the matter is as follows:

"Q. How many did you say you found broken? A. Six broken. Q. And whit was the condition of the others you found? A. Heads pulling through the sheet, heads pulled off, just like the heads pulled off the sheet, through the sheet. Q. (Mr. Robertson) You said heads pulled off? A. Yes, sir."

The evidence shows that the crown sheet dropped off from the heads of more than 100 of these bolts at the time of the explosion; but there is no evidence, unless it be that of the witness Hopson, tending to show that prior, thereto any of these heads were "pulling through the sheet." The argument advanced in support of the court's action in granting the new trial is that the testimony of the witness Hopson, to the effect that he found some of the heads of these stay bolts pulling through the sheet, is some evidence of a defective condition of the crown sheet itself; i.e., that if the heads of some bolts— the witness says six—were pulling through the sheet, this would mean a weakening of the crown sheet itself as distinct from the stay bolts. We have carefully considered this testimony, and do not see how it can be said to constitute any evidence that there were defects in the crown sheet as a thing separate and apart from the stay bolts. The argument that the ends of these bolts, extending down through the crown sheet, with heads on the lower side thereof and serving to form a part of the roof of the fire box, constituted a part of the crown sheet, and that a defect in the heads or ends of the bolts would consequently be a defect in the crown sheet, avails nothing here; for to the extent that the ends or heads of the stay bolts may be said to constitute a portion of the crown sheet, the jury were at liberty to consider defects in the crown sheet under the instructions given. The question is whether the foregoing testimony tends to prove that the crown sheet was otherwise defective.

It is argued that by "neads pulling through the sheet" this witness meant that heads were being sunk into the sheet itself, thereby weakening the latter and rendering it defective. Of this it may be said that while the testimony of this witness is not altogether clear, there is nothing in our judgment to indicate that he meant to say that he found heads which, while remaining in their original form, were being pulled up through the sheet, thus making depressions therein of the size of the heads themselves. The rounded head of...