ATCHISON, T. & S. F. RY. CO. v. HINES, 211 F. 264

CALL, District Judge. This suit was filed in the District Court of the United States for the Western District of Texas, at El Paso, Tex., by Harry K. Hines, the defendant in error, against the Atchison, Topeka & Santa Fé Railway Company, the plaintiff in error, claiming damages growing out of personal injuries sustained by said Plines, who was employed as fireman by the said corporation.

It is alleged in his petition that the said corporation, the railroad company, had a line extending through the states of California, Arizona, and New Mexico, and into the state of Texas, and was engaged in such business as an interstate carrier of goods and passengers; that on or about November 7, 1911, he, as a locomotive fireman in the service of the said corporation running between Barstow, Cal., to Parker,Ariz., was called to take a train as fireman from Parker to Barstow, and that while preparing the engine for the trip the water glass suddenly broke, causing a piece of glass to strike him in the eye; that the engine prior to said time was being used by the defendant in interstate traffic, and that it was the duty of' the railroad company to furnish him with an engine and water glass attached thereto thattwas in a reasonably safe condition; that it failed to do so; that the water glass on his engine, by reason of long use or manner of inspection and repair, 'had become out of order and dangerous; that it was improperly and unskillfully fastened and maintained by reason of old, defective, and worn joints, or, by reason of the unskillful manner in which it and its appliances were placed on the engine, it was caused to leak and air was permitted to enter the boiler through the same, ánd that by reason thereof it was caused to explode; that if said water glass had been in a reasonably safe condition and skillfully placed and maintained on the boiler, and the joints properly fastened, it would have been airtight, and would not have leaked either water or steam, .and would have been reasonably safe; that the defendant and its" authorized agents, prior to the happening of this accident, knew that this water glass was old and defective and was leaking both water and steam, or by the exercise of ordinary care could have known these facts; that, while he was preparing the engine for the trip, he discovered that the water glass was leaking water or steam, or both, and that it became his duty to repair the same, and while making the inspection discovered that a nail had been inserted in the screen, or through the screen, which he endeavored to pull out,-whereupon the screen surrounding the water glass fell off, at which time the water glass exploded; that this screen is used to surround the water glass for the purpose of protecting employés on the engine, in the event it should explode; and that when properly fastened and maintained this screen is a protection from flying glass, and in not securely fastening the same with screws and lugs, instead of with a nail, that the corporation was guilty of negligence; that at the time of the accident he was assisting in transporting interstate shipments of goods and passengers between California and Arizona, and by reason of the exploding of the glass was injured.

The defendant answered by a general denial, and pleaded specially that, if the plaintiff was injured at the time and place alleged, the same was brought about by his own contributory negligence, and that he was furnished with á water glass properly protected by a wire screen or shield; that it was not his business to fix or deal with the water glass without first reporting the matter to the engineer in charge; and that he was further guilty of contributory negligence in that the proper way to fix the water glass, if it was leaking, was to first cut off the steam and water in the pipes or valves leading to the water glass and drain the same so that there would be no pressure and no chance for it to explode; that he failed to take this precaution and negligently removed the screen or shield before turning off the water and steam; and further that by reason of these facts plaintiff assumed the risk of the dangers encountered from which the injuries were received.

The case on these issues proceeded to trial, and a verdict and judgment was rendered in favor of Hines against the corporation for the sum of $10,000. The defendant corporation, after the testimony was in and argument made to the jury, at the proper time asked three special instructions. The first two special instructions were refused by the court, and the ■third given; the court giving also a general charge. The testimony in this case shows without contradiction that had the screen remained upon the glass the explosion would not have damaged Hines, the plaintiff.

He says himself that, had the glass exploded when the screen was around it, there would have been no chance for him to have been hurt.

The uncontradicted evidence shows further 'that these glasses break from no accountable reason, and the plaintiff, Hines, was aware of this fact; that where a glass becomes leaky, either of water or steam, the proper way to repair the leak was to have first turned off the steam at the top and the water at the bottom and drained the glass, and then removed the screen and repaired the glass; and that the plaintiff, Hines, was aware of this; and that had he proceeded in this mannef no injury would have occurred to him.

Charge No. 2, which was refused in this case, reads as follows: “Tori are instructed that if you believe from the evidence that the water shield incasing the water gauge was fastened with a nail, and you believe that that nail safely fastened it so long as it was left alone, then, if you believe from the evidence that the plaintiff was negligent in pulling out the nail without first turning off the steam valve and the water valve and opening the drain cock, you are instructed to find for the defendant.” It seems to us that this charge ought to have been given by the trial court.

The issue was made that the nail did not properly fasten the shield. That was one of the issues made in the case by the pleadings, and it should have been submitted to the jury in such a way that the jury might determine that issue in arriving at what was the proximate cause of the injury. It is true that, the court gave special instruction No. 3, asked by the defendant, but that instruction-went only to the extent of submitting to them the question as to whether the nail safely fastened the shield.

This instruction No. 2 goes further and submits to the jury that issue as well as the other issues contained therein, which directly challenged the question of whether the plaintiff was guilty of negligence in so pulling out the nail and dropping the screen and leaving the glass unprotected at the time he was hurt, and .before taking the proper precautions to make the water glass harmless.

For if this screen was securely fastened and held by the. nail and no damage could have happened to Hines had he not first removed the screen by taking out the nail, before making the glass harmless, by turning off the steam and water and draining the glass, then his act in removing the nail before taking precautions, usual and necessary in such cases, which precautions were well known to him, was the direct and proximate cause of the injury sustained.

And in this connection it must be borne in mind that the court charged the jury that if this nail securely fastened the screen the company had not violated the law by not having a screw or lug. The mere fact of a leaky water glass, under all the testimony, if properly screened, cannot, we think, be construed into a defective boiler or appliances. Such a state of affairs is to be looked for at any time, happening for no apparent reason, and one remedied in perfect safety by the fireman of the different engines daily.

It is impossible for this court to say whether, if that charge had been given, the jury would have found for the plaintiff. It is an issue at least that ought to have been submitted. The particular issues attempted to be submitted to the jury in this charge are not covered by the general charge of the court, nor by the special charge given at the instance and request of the defendant; ■ and it was error in the trial court not to have given the charge asked.

For this reason the judgment of the lower court is reversed, and the cause remanded, with instructions to grant a new trial and proceed with said cause in pursuance to the views herein expressed.