Alabama & V. Ry. Co. v. White ( 1913 )

Beed, J.,

delivered the opinion of the court.

Appellee recovered judgment against appellant for one thousand five hundred dollars as damages resulting from injury suffered by him in being scalded on his anide and leg by hot water from the “overflow pipe” under an engine. On the day he was injured appellee was fireman on an engine pulling a freight train from Vicksburg to Jackson and back. When the train reached Clinton on the return trip, a hot box was discovered under the engine. Appellee was directed to remedy the trouble. When be started under tbe engine, be found tbat water was trickling from tbe “blowback pipé,” or “ash pan blower pipe.” He went in under tbe engine between tbe “blow-back pipe” and tbe “overflow pipe.;” It appears from bis testimony tbat there was room for bim between tbe two pipes. He states tbat water from tbe “blowback' pipe” struck bim in tbe face, and tbat be then threw bis foot up under tbe “overflow pipe,” and was scalded by tbe hot water pouring from it on bis. ankle. .

In tbe declaration tbe right to' recover is based upon tbe defective condition of tbe engine.. We do not see tbat tbe proof sustains this claim. It is- shown tbat tbe ap-pellee bad been in tbe railroad service some sixteen or seventeen years; tbat be was an experienced fireman, having served as such for ten years; that he was capable of running an engine, and was well informed regarding its construction and equipment. He testifies tbat before tbe train left Yicksburg on tbe day of tbe accident be cleaned about tbe engine, oiling it and filling bis water tank, and tbat tbe engine was then in good shape to make tbe trip; tbat be saw nothing wrong with it on tbe way to Jackson, and, as far as be knew, it was all right when it left Jackson; tbat be discovered a “hot box” at Clinton, and tbat it was bis duty to cool tbe box. Tbe engineer testified tbat be examined tbe engine before leaving Yicksburg and found it in good condition. He also testified that there was no defect in tbe ‘ ‘ overflow pipe. ’ ’ Appellee does not claim tbat be was injured by tbe water from tbe “blowback pipe” striking bis face. His claim, it will be noted, is tbat be was scalded by tbe water from tbe ‘ ‘ overflow pipe. ’ ’

Tbe railroad company is only required to provide reasonably safe and sufficient instrumentalities for its servants in the performance of their work. Tbe following rule is given in tbe case of Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605: A corporation is under obligation to use “ such watchfulness, cantion, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise.” Ordinary and reasonable care and diligence is all that is required. The only testimony tending to show defective condition in the engine was the statement by the appellee that the overflow pipe was “not supposed to leak, unless you put on the injector,” and that the engineer was not manipulating the injector when he was burned. The other testimony in the case was to the effect that all “overflow” pipes discharge hot water.

In the case of Hope v. Railroad Co., 98 Miss. 822, 54 South, 369, it was decided that “the master is responsible to the servant only for injuries received through his negligence, and the burden of proving such negligence is upon the servant, to the same extent that it is upon all other plaintiffs seeking to recover on the ground of negligenc» ”

It is further decided in the case of Hope v. Railroad Co., that, “when a servant is injured by reason of a defect in a tool or appliance furnished him by the master, one of the essential elements of negligence on the part of the master is knowledge, actual or constructive, of the existence of the defect in the tool or appliance; consequently the burden of showing such knowledge is upon the servant.” If there was a defect in the pipe, appel-lee has failed to show by sufficient proof that appellant had knowledge of the existence of the defect. From the testimony it does not appear to have existed when the engine left Yicksburg or while at Jackson. If the defect developed in transit, the first opportunity to discover it was when appellee went under the engine. Appellant could not have known of it earlier.

Appellee has failed in his proof in this case. The peremptory instruction in favor of appellant should have been given.

Reversed, and judgment here for appellant.

Reversed.