Va.N Ry. Co v. Andrews
| Decision Date | 13 January 1916 |
| Citation | 87 S.E. 577,118 Va. 482 |
| Parties | VIRGINIAN RY. CO. v. ANDREWS. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Montgomery-County.
Action by Maude L, Andrews, as administratrix of A. W. Andrews, deceased, against the Virginian Railway Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded.
Ellett & Phlegar, of Christianburg, Hall, Woods & Coxe, of Roanoke, and G. A. Wingfield, of Norfolk, for plaintiff in error.
A. P. Staples, A. B. Hunt, and W. L. Welborn, all of Roanoke, for defendant in error.
The right of the defendant in error, who was the plaintiff below, to recover damages for the death of her intestate was rested upon the grounds stated in a declaration containing four counts. The court sustained a demurrer to the fourth count, and, without objection, instructed the jury that there was no evidence to sustain the second count, so that the case was tried on the first and third counts.
(1) The first count alleges that the stay bolts supporting the crown sheet were made of defective material, that the workmanship was faulty, and that they had been weakened and rendered unsafe by previously having been burned. (2) And the third count alleges that the glass water gauge was out of repair and in an unsafe condition, the valves therein being stopped up with lime, trash, or other deposits, and improperly registered the quantity of water in the boiler. Both these counts are founded on an act of Congress approved February 17, 1911, entitled:
"An act to promote the safety of employes and travelers * * * by compelling common carriers engaged in interstate commerce to equip their locomotive with safe and suitable boilers and appurtenances thereto." 36 Stat. 913.
The following is an outline narrative of the salient facts: The engine which is the subject of investigation was one of 10 engines built for the defendant by the Baldwin Locomotive Works, which is one of the largest and most reliable manufactories of engines in the United States. At the time of the accident the engine was practically new, having been used for the first time in May, 1912. It was constructed with great care, both with respect to material and workmanship; and, during the course of construction, in every detail, was subjected to rigid inspection by experienced inspectors detailed by the defendant for that service. The specifications called for a crown sheet for the engine, with a margin of safety of 13.3 under steam pressure of 200 pounds. The engine was being operated with a steam pressure of 185 pounds, and, properly handled, was capable of withstanding a pressure of about 16 times the pressure to which it was subjected at the time of the accident. The inspectors tested the tensile strength of the materials used in the crown sheet and stay bolts before they were put in the engine, and found them of the required strength. After the engine had been completed, the boiler was thoroughly tested with water and steam, and likewise proved satisfactory. It was then washed out with soda and cleansed of grease, oil, and other foreign substances used in, and which collected during, the course of construction. The engine was practically in the control of plaintiff's intestate, and run by him during the entire time it was in operation. On November 11, 1912, three days prior to the accident, it was inspected by government inspectors under the act of Congress, which inspection showed that the engine boiler and appurtenances were in perfect condition. From the time of that inspection until the explosion, the engine was exclusively operated by Engineer Andrews. In the interval he had made two trips from Princeton, W. Va., to Roanoke, Va., and return, and had run the engine back to Roanoke. On November 14, 1912, at 9:30 p. m., he left the latter city for Princeton, pulling 3 loaded cars and 79 empties, and had proceeded about 18 miles on his journey when the explosion happened. In addition to theinspections provided for by the Boiler Act, the defendant enjoined upon the engineer the duty to inspect his own engine, and at the end of each run to make a written report of its condition. Accordingly, in obedience to that rule, when the engineer arrived at Roanoke on the morning of November 14th, he made his report that he had carefully inspected the engine and its appurtenances and found it in good condition, with the exception of certain unimportant defects, to which attention was called, and which were speedily repaired. There was no suggestion in the report of any defect in the crown sheet. Moreover, on the night of the accident, the hostler examined the crown sheet before turning over the engine to the engineer, and discovered no defects in it; and, after the engineer took charge of the engine, shortly before setting out from Roanoke, he again examined the crown sheet.
It thus appears from the undisputed evidence that at 9:30 p. m., the time of departure for Princeton, just one hour before the explosion, the defendant had complied with every requirement of the Boiler Act, and the locomotive engine, boiler, and appurtenances measured up to statutory standard.
After the explosion the engine was hauled to Princeton by another engine. The cab was boxed up, as required by the Boiler Act, and the engine, boiler, and appurtenances remained in the condition in which they were found after the explosion until November 16th and 17th, when they were inspected by two government inspectors sent out for that purpose by the Interstate Commerce Commission. These officials made their report, and also testified at the trial and proved that, apart from the injury caused by the explosion, the boiler and all its appurtenances, including the injectors which carried water from the tank to the boiler, and the glass water gauge were in perfect condition. These inspectors were furthermore of opinion that the explosion was unquestionably due to low water in the boiler. This opinion was concurred in by a number of other witnesses of wide experience in the observation of crown sheets blown down from low water in the boiler. Indeed, the consensus of opinion witnesses on both sides was that the crown sheet had been burned—that is to say, it had been heated with no water on top of it—though the expert witnesses for the plaintiff testified that the color of the crown sheet indicated that it had been burned prior to the time of failure, and had water on it when it actually failed. They were also of opinion that the presence of oil, or perchance some other foreign matter in the boiler, made it possible to burn the crown sheet though covered with water. But these theories were refuted by...
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