Opinion
No. 52.
December 9, 1929.
Appeal from the District Court of the United States for the Western District of New York.
Action at law for personal injuries by John F. Fredericks against the Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.
In the course of his employment as a fireman on one of the defendant's switching engines in the yard at Elmira, N.Y., the plaintiff fell from a running board while trying to close a drain cock and was severely injured. He was the only witness who described how the accident happened. He testified that at about 1:15 o'clock on the morning of February 21, 1928, when the water in the boiler was low, the injector on the engineer's side failed to work, and that he was told by the engineer to start the injector on the fireman's side of the engine. He did so. He then noticed that a pet cock in the water supply pipe running from the tank to the boiler along the outside of the engine was open. This pet cock was close to and above the running board, at a point a little more than half the distance from the front of the cab to the front of the engine. It was there to drain the pipe to prevent freezing, and was properly open, before the injector was started, to take care of such drainage. The weather at the time was very cold. To enable the injector to work as it should, however, and to prevent steam and water escaping, where it would freeze and make the side and front of the engine slippery and dangerous, the plaintiff went from his cab out along the running board to shut the drain cock. The engine was standing still. He knew when he stepped out upon the running board that it was somewhat icy and slippery, because of water which had dripped from the pet cock and frozen before the injector was started, and when he was trying to close the valve he knowingly stood upon some of the ice. The valve had a small metal handle at one side of the pet cock, which was designed to be turned by hand to shut off the water. The plaintiff stood on the running board facing the engine and drain cock, and at first tried to close the valve with one hand, while steadying himself with the other hand on a grab rail along the engine a suitable distance above and parallel to the running board for use by one walking along or standing on the board. He was unable to close the valve with one hand in this way. He then let go the grab rail and, stooping, placed one hand on the pet cock and its fitting above the valve handle. He could do this, because the pet cock, itself about two inches long, was screwed into the end of a connecting pipe, which was about three inches long and which had its other end screwed by two or three threads into the under side of the water supply pipe, so that the drain cock hung down in all about five inches from the supply pipe toward the running board. With one hand on the pet cock and its fitting and the other on the valve handle, he tried again to close the valve. This time his pull loosened the pet cock or the fitting, the evidence is not very clear which, so that it turned and shot up about two inches into the pipe, and caused him to lose his balance and fall to the ground.
Other evidence in the case was to the effect that neither the pet cock nor the fitting was loose after the accident. The parties agree that the plaintiff was engaged in interstate commerce when injured. He was a strong, heavy man, weighing over 200 pounds. The evidence was undisputed that the injector was of a type known as a lifting injector, and was one of the types (though not the only kind) in common use on the defendant's engines, and on engines used by standard railroads in that vicinity, and that the only feasible place to put the drain cock necessary to be used with this type of injector was in the lowest point of the supply pipe, where the discharge from it would be above the running board and visible from the cab, as this pet cock was placed. Attempts to carry the drainage below the running board were shown to have resulted in blocking the drain cock by freezing.
Stanchfield, Collin, Lovell Sayles and Halsey Sayles, all of Elmira, N.Y., for appellant.
Mortimer L. Sullivan, of Elmira, N.Y., for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
In view of the evidence, we must assume that the location of the drain cock was safe and proper. Baltimore Ohio Railroad Company v. Groeger, 266 U.S. 521, 45 S. Ct. 169, 69 L. Ed. 419.
Being placed there to be closed by hand, however, it was the duty of the defendant to see that it was fitted to the engine and maintained in such a way that the application of manual force by an employee, whose duty it was to close it, would not pull it loose in the attempt to do his work. It was to be expected that the valve in a drain cock from which water dripped in cold weather might freeze and stick, and it was also to be expected that an employee, trying to close it under such conditions, would pull as hard as he thought necessary within the limit of his strength. After trying to close it with one hand, it was perfectly natural for the plaintiff to use both, when, as here, the valve and fitting was so constructed that he could use both hands. It is idle for the defendant, after employing the plaintiff for this work, to try to excuse itself for the condition of the fitting by saying that its servant was too strong and heavy for the job it set him to do.
Common knowledge is sufficient to establish the fact that a pet cock, for the use to which this one was put, can easily be made, fitted, and maintained in such a way that, if the valve in it cannot be closed by hand, neither the drain cock nor fitting will be broken loose by an attempt at manual closing. To have such a drain cock fitted to the engine in a way that the use of both hands was invited, required it to be put there, so that it would withstand a two-hand pull in order to comply with the Boiler Inspection Act as amended (45 USCA § 22 et seq.), to require the appurtenances of the locomotive to be in proper condition and safe to operate. St. Louis, Iron Mountain S.R. Co. v. Taylor, 210 U.S. 294, 28 S. Ct. 616, 52 L. Ed. 1061. And for injuries due to defendant's failure to comply with this law the plaintiff may recover, without showing the defendant to have been negligent. Texas Pacific Railroad Company v. Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 874; Wabash R. Co. v. United States (C.C.A.) 172 F. 864; San Antonio A.P. Railway Company v. Wagner, 241 U.S. 476-484, 36 S. Ct. 626, 60 L. Ed. 1110.
But the evidence was conflicting about the condition of the drain cock and fitting, and with the defendant's evidence strongly indicating that nothing was loose after the accident we cannot take it for granted that the jury found the appliance defective because of insecure fastening.
The plaintiff also claimed that the engine was defective because of the unsafe location of the drain cock, and the defendant requested the court to charge "that the jury cannot find the engine defective on account of the location of the frost cock." Instead of complying with this request, the court left the question of safe location to the jury, with some general remarks to the effect that it should not consider purely mechanical arrangement, but should determine whether the appliance was safe to operate, and proper and safe for the service in which it was to be used. When, as in this case, the evidence was overwhelming that the drain cock was located in the only place that it could be put and work properly, and that such location was of necessity uniformly used on lifting injectors by railroads in the territory where the plaintiff was hurt, it was error to permit the jury to call into play its own ideas as to a safe and proper location, and allow it to find the engine defective because the drain cock was not placed, perhaps, where the jury thought it should have been put. N.Y.C. H.R.R. Co. v. Banker (C.C.A.) 224 F. 351-355; Baltimore Ohio Railroad v. Groeger, supra. The defendant was also entitled to have its request to charge complied with, to the effect that, if the engine was not otherwise defective, the plaintiff assumed the risk of the location of the drain cock, as well as that, in the absence of any defect in the engine, the plaintiff assumed the risk of injury due to the ice on the running board, which he knew was there when he went out and stood upon it. Tuttle v. Detroit, G.H. M. Ry. Co., 122 U.S. 194, 7 S. Ct. 1166, 30 L. Ed. 1114.
Judgment reversed.