Chicago & Alton Railroad v. DuBois

Mr. Justice Boggs delivered the opinion of the Court. Various theories as to the cause of the explosion were indulged by the different witnesses who were allowed to express opinions thereon as experts. These conclusions, are based upon examinations made of the fragments of the engine and its boiler and beyond that nothing was known or proven as to such cause. The preponderance in point of numbers of such expert opinions is that the explosion occurred because the boiler was insufficiently supplied with water, whereby the crown sheet of the fire box of the boiler was left bare of water and became over-heated, softened and weakened, and gave way to the pressure of the steam or generated superheated steam, which exploded. The theory of the appellee and also of the lesser number of the expert witnesses is that the sheet of steel, of which the inside wall of the right hand side of the fire box of the boiler was composed, was insufficient in point of thickness, strength and quality, and that a number of stay bolts, which were intended to hold it and the outside side sheet of the fire box firmly together, and to give strength to both, were broken, and that the explosion occurred because the sheet of steel gave way to the pressure of the steam. "We have carefully read all the testimony and considered all that has been said in the briefs of counsel, and in the course of the thorough and exhaustive oral arguments with which we were favored in this and the cases of the representatives of the fireman and forward brakeman, and are profoundly impressed with the conviction no one can with any assurance of certainty declare the cause of the explosion, and that the testimony, when all fairly and impartially considered, lacks probative force to engender belief in the mind as to such cause, and only serves to excite conjecture and surmise. Moreover, if it could be said the theory of the appellee was supported by the testimony, yet liability on the part of the company to respond in damages would not exist unless it further appeared the company was guilty Of' negligence with, respect to the alleged deficiencies of the side sheet or stay bolts, and of this proof is lacking. The company built the engine in its machine, shops, and the negligence alleged as to the insufficiency of the side sheet is that the sheet of steel of which it was composed was so badly eaten away and reduced in thickness, strength and quality by rust, which had gathered upon it, that it was unfit and insufficient tor the purpose, and that it was an act of negligence to use it in the boiler. That there was rust upon the steel was clearly proven, but, it as clearly appeared, rust is frequently if not usually found to a greater or less extent upon such metal, and without injury to its strength or fitness, and it did not appear from a preponderance of the evidence there was any more than what boiler makers denominated “the usual run of rust ” upon the sheet. The company, as it necessarily must have done, committed the work of constructing the boiler to boiler makers and its workmen in its locomotive shops. These workmen were in charge of a foreman or superintendent, and it appeared without dispute this foreman and the boiler makers were competent and skilled workmen, and had had many years experience in the actual work of constructing locomotive engines. The sheet of steel was selected by the foreman. He examined it, caused the rust to be removed from it—deemed it sufficient, and it does not appear any one engaged in the work thought or suggested to the contrary. King, the witness upon whom appellee chiefly relied to establish the sheet was injui’ed by rust, accompanied the foreman when the sheet was selected, and he and Ayersman, the other witness, whose testimony is likewise relied upon by the appellee, saw the-rust removed from the sheet, and both voluntarily assisted in preparing,the steel to be placed in the boiler without dissent or suggestion as to its sufficiency. Others of the boiler makers and workmen who saw the sheet, some of whom assisted in cleaning it of the rust, and others who afterward prepared it to go in the boiler, in the way of marking the places for the stay bolts, drilling holes in it for such bolts, hammering and riveting the heads of the bolts, etc., testified that in their opinion and judgment the sheet was sound and in good condition to be used in the boiler. Even if the testimony of King and Ayersman ought to be accepted, as against the greater number of the workmen whose testimony is opposed to theirs, upon what hypothesis nan it be declared the company was guilty of negligence % All that could be said would be that competent, experienced, skilled and careful workmen and the foreman erred in matter of judgment. This, even if it had been proven, falls short of negligence. Hor do we think it proven the company was negligent with respect to the alleged broken stay bolts. And here we may pause to remark, it is quite uncertain how many of such bolts were broken before and how many by the explosion. It appeared without contradiction th at stay bolts frequently break while an engine is in motion upon the road, and for this reason every engine is supplied with an excess of such bolts in order that it may be operated with safety though a number of bolts are broken, and that engines are frequently operated without danger though many stay bolts have become broken. Indeed it seems it is infrequent to find an engine with all its stay bolts sound after an extended trip upon the road. Experience and prudence have led boilermakers, engineers, and others competent to form an intelligent opinion upon the subject, to the adoption of a rule that locomotive engines should be examined monthly for broken stay bolts. An inspection of the boiler of this engine in question was made six days before the explosion, by Mathew Owen, a workman upon boilers of locomotive engines, of many years experience. He had been engaged for nine years as inspector of stay bolts for the appellant company. He went inside this boiler, applied the hammer test (confessedly the best known mode of examination) to the bolts, and he testified that the engine left his charge without a broken stay-bolt in the boiler. The only question raised as to his competency to perform the work was, it is insisted he admitted he could not hear perfectly in one ear, and that a test by the hammer depends upon the sense of hearing. His testimony was his hearing “ was not goof but not very bad, and was good enough to hear the sound made by sti’iking the end of a stay bolt with a hammer and determine whether the bolt was sound or broken.” The evidence does not warrant an imputation of incompetency or negligence to this workman. The operation of locomotive engines is necessarily attended with danger to those who take employment to manage and control them. The law does not make railway companies insurers against such danger, but the obligation of the company is that reasonable care or skill shall be exercised to make and keep the engine safe. Hnless it is made to appear by proof that this obligation has not been kept, liability to respond in damages does not attach, however serious and sad the calamity or great the affliction and loss of those who suffer from it. The judgment is reversed and the cause will not be remanded. The clerk will incorporate in the judgments the following findings of facts in the foregoing case: The court, upon consideration hereof, doth find that the evidence herein fails to show the company was guilty of the negligence alleged in the declaration in respect of the construction and keeping in repair said locomotive engine boiler, but that said appellant company used due care in that behalf. And the court doth further find, the evidence herein fails to disclose what was the cause of the explosion of the boiler of said locomotive, and that the cause of the explosion is unknown.