Thurmer v. Southern Ry. Co.

• Decision Date: 11 January 1956
• Parties: Carl THURMER v. SOUTHERN RAILWAY CO. 41 Tenn.App. 354, 293 S.W.2d 600
• Court: Tennessee Court of Appeals

Page 600

293 S.W.2d 600

Carl THURMER v. SOUTHERN RAILWAY CO.

41 Tenn.App. 354, 293 S.W.2d 600

Court of Appeals of Tennessee, Eastern Section.

Jan. 11, 1956 Certiorari Denied by Supreme Court June 26, 1956.

[41 TENNAPP 356] Duncan, Duncan & McGee, Knoxville, for plaintiff in error.

Key & Lee, Knoxville, for defendant in error.

McAMIS, Presiding Judge.

Carl Thurmer, an employee of defendant Southern Railway Company, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. to recover damages for personal injuries sustained when the plug of a 'by-pass' valve on the steam line of Passenger Train 41 flew out as the plaintiff was in the act of opening the valve. The trial judge, at the close of all the evidence, directed a verdict for defendant and plaintiff appeals.

After defendant moved to strike the bill of exceptions because not marked filed by the clerk of the Circuit Court, plaintiff, on suggestion of diminution of the record, brought up a certified copy of the rule docket of the Clerk showing that a bill of exceptions was filed in this case May 5, 1955. The bill of exceptions itself bears the imprint of a rubber stamp showing that it was filed on that date but not indicating by whom. We think the two documents fairly show that it was filed.

The bill of exceptions and exhibits therein referred to were approved by the trial judge on the same date. The exhibits, however, though marked filed by the Clerk during the trial, were not marked filed as a part of the [41 TENNAPP 357] bill of exceptions. It was not necessary that they be refiled under Code Supp.1950, Section 8967, Official Code Title 27, Section 104, providing:

'In suits at law removed to the Court of Appeals or Supreme Court, depositions read and exhibits introduced as evidence at the trial shall be a part of the record and need not be included in the bill of exceptions, but shall be reviewed and examined along with all other evidence.'

The declaration avers that when plaintiff was in the act of opening the valve the plug which screws in the top of the valve, due to the rusty condition of the plug and the fact that the threads were stripped and worn, blew off allowing steam to envelop him and causing the injuries for which he sues; that defendant knew or by the exercise of due care should have known of the defective condition of the plug; that notwithstanding the existence of this dangerous condition and the fact that plaintiff's duties required him to open the valve, defendant 'negligently permitted and caused steam to be in the steam conduits and the plaintiff avers that the steam was under a tremendous and unsafe amount of pressure'.

It is to be seen that the defendant is charged with three separate acts of negligence: (1) Defective and unsafe condition of the valve and particularly of the plug, (2) excessive pressure and (3) allowing the pressure to be on while plaintiff's duties required his presence in and around the valve. The third charge of negligence as to allowing pressure to be on does not specifically relate the act to the time when plaintiff was required to be near the valve but in the taking of proof it was treated by both parties as raising that issue.

[41 TENNAPP 358] The defendant filed a plea of the general issue and it was stipulated that both parties were engaged in interstate commerce at the time of the accident, August 21, 1952. The principal defenses are that defendant was operating according to approved standards; that the pressure was not excessive and that the car on which plaintiff was working belonged to the Norfolk & Western Railway Company and, if the valve was defective, it was due to a latent defect which no reasonable test or inspection would reveal.

The railroad passenger car in question was received by defendant at Bristol, Tennessee, from N. & W. on the morning of the accident. Regulations of the Interstate Commerce Commission required that it be inspected by defendant when it was received. At Bristol it became a part of Train Number 1 which arrived at defendant's station yards in Knoxville at about 10:00 A.M. It and two other cars were there cut out of Train 1 and placed on Track 1, near the yard steam line, to await the arrival of Train 41 due to arrive from Bristol (the east) at 2 P.M. While the cars were standing on Track 1, they were given a 'running inspection' and the steam was applied to the steam line of the cars for the purpose of noting whether there were any defects sufficient to cause the escape of steam. None was detected. The pressure at the yard plug, however, was not in excess of 70 lbs.

Train 41 arrived at the yard at about 2 P.M. and stopped on Track 2 which is parallel to Track 1 and south of it. Plaintiff's duties as a car inspector required him to inspect Train 41 beginning at the rear car and working forward. While he was thus engaged the two Diesel engines pulling Train 41 were disengaged and they and a switch engine moved forward to a point where Tracks [41 TENNAPP 359] 1 and 2 converge. They were then backed into Track 1 and coupled with the three cars cut out of Train 1. The car with the valve in question was then on the rear or eastern end of the string.

The two Diesels and the three cars then moved west beyond the point of convergence of the two lines and backed on Track 2 where they were coupled with cars of Train 41. As a safety measure and because no pressure was needed, the fireman acting on standing instructions cut the steam entirely off during this switching operation and did not cut it on again until he started backing in the final movement. He then set his gauge at 150 lbs. expecting pressure to build up while he was backing into the cars of Train 41. He testified that the last time he looked before the accident and after he had coupled with the cars the gauge stood at 90 lbs. When he saw steam escaping at the time of the accident he looked immediately and it still stood at 90. The record suggests that a break at the valve would cause the pressure to drop almost immediately at the gauge.

Plaintiff testified that after the three cars had been backed into the cars of Train 41, he went between the cars to cut the steam into the cars of Train 41 and attempted by hand to pull the lever of the valve on the N. & W. car but, because of the high pressure on the line, the lever jerked out of his hand. He then used a wrench to pull it down and when he did so the cap flew off allowing steam to escape with such volume and force that he was thrown back for a distance of 20 or 25 feet from the train. He testified that 'there was an awful pressure' on the line and 'it was just over charged, just too much steam'. He admitted that he saw nothing wrong with the valve or the plug prior to the accident. [41...