Woodruff v. Yazoo & M.V.R. Co.

• Decision Date: 10 February 1914
• Docket Number: 2485.
• Citation: 210 F. 849
• Parties: WOODRUFF v. YAZOO & M.V.R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

210 F. 849

WOODRUFF v. YAZOO & M.V.R. CO.

No. 2485.

United States Court of Appeals, Fifth Circuit.

February 10, 1914

Marcellus Green, Garner Wynn Green, and Marcellus Green, Jr., all of Jackson, Miss. (Ackland H. Jones, of Woodville, Miss., of counsel), for plaintiff in error.

Mayes &amp Mayes, of Jackson, Miss. (C. N. Burch, of Memphis, Tenn., of counsel), for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

This cause comes to this court upon a writ of error to the District Court of Mississippi at Jackson, to review a judgment for the defendant, rendered on a directed verdict in an action to recover damages for personal injuries consisting in the loss of an eye, which the plaintiff's intestate and husband received, while engaged in the employment of the defendant as a railroad locomotive engineer, by the explosion of an indicator tube of the lubricator of the engine he was in charge of. The action was brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)). The original plaintiff was the injured employe; he died before judgment, and the cause was revived in the name of his wife as administratrix.

Two errors are assigned:

(1) The court erred in not rendering judgment quod recuperet upon finding the issue on the first plea ofabatement for the plaintiff, and in permitting the defendant to plead to the merits. We think the court below properly permitted the defendant to plead over to the merits, after overruling its plea in abatement. The issue presented by the plea was substantially one of law rather than one of fact, conceding that even in the latter case it would have been proper to deny the defendant the right to answer over. 1 Encyc.Pl. & P 30, and cases cited. Kendrick v. Watkins, 54 Miss 495, relied on by plaintiff in error, asserts that a judgment quod recuperet is proper only when a plea in abatement, presenting an issue of fact, as distinguished from an issue of law, has been overruled. The plaintiff in error should take nothing by her first assignment.

(2) The second assignment is based upon the action of the court below in sustaining the defendant's motion for a peremptory instruction and in giving and not refusing the same. The original plaintiff, J. H. Woodruff, was, at the time of his injury, and for many years had been, a locomotive engineer in the employment of the defendant. When injured he was running between Woodville, Miss., and Slaughter, La., in charge of a freight engine and engaged in interstate commerce. His engine was equipped with what is known as a Nathan No. 8 lubricator which had four glass tubes, three called feed tubes, and one an indicator tube. The original tubes were furnished to the railroad company by the manufacturer with and as a part of the lubricator. They were tested by the manufacturer under a test which indicated that their tensile strength, as was true of all the parts of the lubricator, was such that they were able to withstand a pressure of 300 pounds to the square inch. When the lubricators came from the factory, the glass tubes were protected by a tin shield with perforations, which extended around the tubes, to keep the glass from flying in case of explosion. On the engine the plaintiff's intestate was running when injured, the tin shield, with which the factory had equipped the lubricator, had been removed, and a wire coil had been substituted for it around the tube that exploded. The substitution had been made a considerable time before the accident, and the plaintiff's intestate knew of the substitution and of the greater comparative danger from the substituted appliance, as compared with the original, in the event of an explosion. This appears without dispute from the record. With such knowledge of the character of and risk from the substituted appliance, the plaintiff's intestate continued in defendant's employment and in the use of the dangerous appliance for a time long enough to have charged him with the assumption of the risk of the danger arising from the substituted appliance. This also appears without conflict from the record. It is clear that the court, so far as the negligence of the defendant was predicated upon the substituted cover for the indicator tube, properly instructed the jury to find for the defendant, if the defense...