
    No. 642
    ALDRICH v. ERIE RD. CO.
    U. S. Appeals, 6th Circuit
    No. 4042.
    Decided Nov. 10, 1924
    465. ERROR—Party may not allege, in the withdrawal of a question from jury, where his own testimony, not claimed to have been mistaken, rendered such question immaterial.
    225. CHARGE TO JURY—Not erroneous, where, taken from contract, it was to be found that, company’s failure to perform its duty in one or more of the respects accepted, caused the explosion.
    Attorneys—Anderson, Lamb & Jenkins, Youngstown, for Aldrich; Cook, McGowan, Bushnell & Burgess, Cleveland, for Company.
   MACK, C. J.

Edson Aldrich was an engineer for the Erie Railroad Co. and brought an action against the company in the Dist. Court of the U. S. for the East. Div. of the Northern Dist. of Ohio, for damages for injuries sustained by reason of an explosion of a boiler in a locomotive which Aldrich was operating. The action was based on the alleged failure of the company to comply with the provisions of the safety Appliance Act and Federal Boiler Inspection Act, and to make proper, sufficient, and timely inspection.

It seems that both Aldrich and his fireman testified that gaskets had rotted and crumbled away, and if there had been timely inspection the accident would never have occurred. Witnesses for the company testified that the gaskets were inspected after the explosion and were found to be in good condition.

It was shown that if there was not sufficient water in the boiler, dry heat would melt or fuse a metal disc so that the water and steam could be enabled to run into the fire box causing noise and smoke to attract attention. The operators of the locomotive testified that they heard or saw nothing to indicate that the disc had fused. Inspectors for the company testified that inspection of the ufxplosion showed that said disc must have fused properly. The jury rendered a verdict for the company.

Error was prosecuted and Aldrich claimed that error existed in the trial below because of the fact that the trial judge withdrew from consideration of the jury any question of a defective water gauge, for the reason that the evidence failed to show any causal connection between the alleged defective condition of the gauge and the explosion. Error was also alleged in the lower court withdrawing the question of inspection from the jury. The court held:

1. As shown by the testimony, if tests were made with the water cocks less than a half minute before the explosion, it is difficult to see that the presence or absence of the water-glass, could have any causal connection with the explosion or the injuries of Aldrich resulting therefrom.

2. Inspection was not a real issue in the ease. The company’s duty could not have been satisfied by proper inspection. It was higher. Under the Safety Appliance Act it was to furnish safe appliances, and the trial judge so charged.

3. No error in the instruction that the jury must determine from the evidence what was the cause of the explosion. In the context the charge means that, before holding the company liable the jury must find, the explosion due, in whole or in part, to the company’s failure, in one or more of the matters alleged to perform its duty.

4. No error in the refusal of court to give instructions requested by Aldrich. Judgment affirmed.  