Warning v. Thompson

• Decision Date: 12 May 1952
• Docket Number: No. 42539,No. 1,42539,1
• Parties: WARNING v. THOMPSON
• Court: Missouri Supreme Court

Page 335

249 S.W.2d 335

30 A.L.R.2d 1176

WARNING v. THOMPSON.

No. 42539.

Supreme Court of Missouri, Division No. 1.

May 12, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 9, 1952.

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for appellant.

Trusty, Pugh & Green, S. L. Trusty, Guy W. Green, Jr., Kansas City, for respondent.

LOZIER, Commissioner.

This is a Boiler Inspection Act (herein called the Act) case. Secs. 22-34, 45 U.S.C.A. Plaintiff (herein called plaintiff) had a $60,000 verdict. To avoid sustention of defendant's motion for new trial, plaintiff remitted $15,000. Defendant (herein called defendant) appeals from the $45,000 judgment.

The issues here are: defendant's liability under the Act; causation; giving and refusal of instructions; admission of evidence; improper cross-examination and argument; and excessiveness.

The Act provides: 'It shall be unlawful * * * to use * * * any locomotive unless said locomotive * * * and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service * * * without unnecessary peril to life or limb, * * *.' 45 U.S.C.A. Sec. 23.

The appurtenance involved is the sanding apparatus. The one-ton capacity sand dome is on the boiler. The sand falls into two simultaneously operated sand traps on each side of the boiler. Within each are two traps for use in forward and backward movements, respectively. Each large trap has plugs in the side and, on the top, a hollow screw cap with an interior babbit. Inside the large trap is a compressed air pipe. Air is controlled by a valve in the cab. The air forces the sand upward against the cap's ceiling, and then downward, through pipes, to the wheels.

Rule 120 of the Interstate Commerce Commission is: 'Sanders.--Locomotives shall be equipped with proper sanding apparatus which shall be maintained in safe and suitable condition for service, and tested before each trip. * * *'

Rule 120 does not create liability. The Act requires the I. C. C. to promulgate rules fixing standards of use of locomotives and their appurtenances. Such rules become integral parts of the Act. For our purposes here, after the promulgation of Rule 120, the Act itself read: 'It shall be unlawful to use any locomotive which is not equipped with proper sanding apparatus or sanding apparatus which is not maintained in safe and suitable condition for service.' See Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411; Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.

Plaintiff had been defendant's employee for many years. On April 26, 1948, and for 3 1/2 years prior thereto, he was engineer on a passenger train, the Sunflower, between Wichita, Kans., and Pleasant Hill, Mo. The distance is 237 miles. There were about 30 scheduled stops, 5 of which were between Pleasant Hill and Fort Scott, Kans. The others were between Fort Scott and Wichita. The Wichita-Pleasant Hill-Wichita run ordinarily used from one-half to two-thirds of the dome's sand capacity. The supply was not replenished at Pleasant Hill, where there were no facilities for such purpose.

Plaintiff used Engine No. 6420 (which he had used twice before in April) on the east run the night of April 24-25 and on the return run. He left Pleasant Hill about 10:10 p. m. April 25. It was not then raining, but started to rain before he reached the state line southwest of Rich Hill, Mo., and northeast of Fort Scott. There was a short shower, then a 'pretty hard rain and it then turned into a drizzle or a mist and later into a fog.'

Plaintiff noticed that the engine wheels were slipping in starting and locking in stopping. He used the air valve but 'couldn't get any sand,' although the air pressure was working. This 'got worse on leaving Durand [Kans.]; I couldn't hardly do anything with the engine, she just slipped.' Between Durand and Reece there was 'moisture in the air and it was quite foggy from Eureka to Reece.' During the Reece stop, he left open the air valve 'and got down on the ground to see if there was any sand coming out * * * of the sand pipes that lead down to the rail. * * * There was some air coming out * * * [the air] was working all the time. * * * I went prepared [with an 18-20 inch wrench and a flashlight, as it was still dark]; I went along and tapped these pipes to see if any wet sand had got into the bottom of the pipes. They were open and there was a little air coming out, and I knew the only thing to do was to go up to the sand trap because it had to be wet up there, which was the only thing that would obstruct it. * * * When the sand [in the traps] gets wet it packs down and air will blow down in the way of the nozzle [in the traps] * * *; so there would be a small opening through which the air would go.' After he tapped the pipes and 'felt some air coming through * * * I started to go up over the pilot to get to the' catwalk and the sanders. 'I went up that way * * * because the superintendent one time in a safety meeting said that was the safest way to go up there at any time. * * * I went up there to clean the wet sand out of the trap.' The pilot's steps were wet and there were 'considerable insects on the front of the engine.' Plaintiff's gloves had become wet when he tapped the pipes. He was unable to grasp the smoke rail firmly, fell off the pilot and was injured. The evidence of both parties was that, when plaintiff fell, he was pursuing the customary and required method, viz.: leave the air on, tap the pipes (and remove any obstruction therein) and, if the sand still does not come through, climb over the pilot to the catwalk, unscrew the plugs and caps and eliminate the wet sand.

Plaintiff did not claim that there was 'any defect in this engine around the front where I fell, the pilot beam and in the vicinity on that engine * * * that is, so far as the pilot beam, the steps and those things are concerned, they were all right. The thing that caused me to slip or trip was the moisture or the bugs, the insects or my wet gloves, the combination of those things there at the time. * * * I started up there to go into the sand trap because I had checked the sand at the bottom and there was not sand coming out of the pipes. * * * If the sand dome was empty, I wouldn't get any sand * * * but you would have a strong blast of air coming out of the pipe at the bottom, because there wouldn't be anything to obstruct the air at all from the time it left the air pipe [in the trap]. * * * If there is a full blast of air coming out of the pipes at the bottom, then there is no sand in the dome; but if there is just a little bit of air coming out, it is because the wet sand has got the air obstructed in the trap and you know the sand is wet. * * * I looked under the engine and saw that there was no sand on the rail on the other [front] side. * * * There was no sand coming through at all. * * * I never actually saw into the dome * * * either before or after this thing occurred. * * * In my experience in wet weather with this class engine, with this engine, I have had to clean out the sand trap with wet sand and I knew in my mind it was wet.'

In plaintiff's experience and to his knowledge, the air blows the sand against the cap; 'that in time will wear the whole top of the plug out of the threads, clear off, * * * on the side where it blasts against it and the top.' The sand gets on the threads and tends to 'cut' them when the plugs are screwed or unscrewed. 'This moisture gets in on account of the worn condition of the threads and caps.'

Several retired engineers and a machinist corroborated plaintiff as to: sand eroding the cap and cutting the threads; sand becoming wet on a run; and the methods of testing to determine if the sand in the traps is wet and of removing such wet sand. So did defendant's employee witnesses. Everett, assistant master mechanic, had seen caps 'with threads almost cut in two.' Totten, who inspected sanders, had seen wet sand removed and defective caps repaired. Hotchkiss, who repaired sanders, had found sanders 'stopped up' when he 'was unable to find any leaks from the outside.' Hotchkiss made the 'outbound' inspection on Engine No. 6420 on April 24. Neither he nor Totten recalled any caps on that engine's sanders with holes in them. Hotchkiss and Everett made a special inspection of that engine's sanders on April 28. On both occasions, they 'were working all right' and there were 'no leaks' in the caps. That engine's sanders were inspected about 11:30 a. m., April 26, and 'were working.'

A hostler takes over the engine at the end of a run and drives it to the roundhouse. En route, the water, coal and sand are replenished. No record is kept of sand put in the dome. Inspection is then made at the roundhouse. The engine inspector makes an 'outbound' inspection before the engine is taken out.

Defendant's records showed that, seven times between January 1, and April 24, 1948, engineers turning in Engine No. 6420 had signed reports to 'clean out sanders,' 'open up sanders' or 'check sanders.' As plaintiff recalled, he had complained to Everett about that engine's sanders around April 19 or 20. Under a company rule, the engine inspector was required to enter 'clean out sanders' on every work report. Totten said that he entered such orders as a matter of routine, even 'if the sand was moving in the traps'; and that after plaintiff was injured, he (Totten) had been ordered not to make such entries, unless he found that 'the traps were not working.'

Defendant first contends that plaintiff did not make a submissible case in that the evidence did not show that the sanding apparatus on Engine No. 6420 was defective; and that defendant is not liable for the mere failure of the apparatus to function. There was ample evidence from which the jury could have inferred that the sanders' caps...