* *

for it.".

11. DAMAGES 131(3)-VERDICT OF FOUR THOUSAND DOLLARS FOR PERSONAL INJURIES

NOT EXCESSIVE.

For a compound fracture of arm a verdict of $4,000 in favor of plaintiff, who before the injury was earning $125 a month as locomotive fireman, is not excessive; plaintiff not having been able to resume work as fireman at the time of trial 21⁄2 years after the accident.

You have to take the patient's word pressure passed through it carrying away the
dirt. This blowing off was a momentary
The
process lasting but a second or two.
lever being released, the valve should settle
back into its place at once. Appurtenant to
this blow-off cock and on the outside of the
boiler was a discharge pipe about 2 inches
in diameter and about 18 inches in length.
Through this pipe steam and water was dis-
charged under a pressure of 180 pounds. For
the purpose of deflecting such discharge and
thereby protecting the roadbed, the lower
end of such discharge pipe was turned hori-
zontally at right angle to the perpendicular
part. In order to hold such pipe securely
in its position under the great pressure of
steam, it was necessary that it be securely
clamped.

Appeal from District Court, Marshall
County; B. F. Cummings, Judge.

Action for damages under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. §§ 8657-8665]) for personal injuries. The plaintiff was an engine fireman and sustained a compound fracture of the arm. The defense was in substance a general denial. There was a verdict for the plaintiff for $6,250, which was reduced by the trial court to $4,000. The defendant appeals. Affirmed.

On the occasion in question, the valve, having been opened by the lever of the engineer, failed to close. The engineer manipulated his lever without success. The plaintiff got down from the engine, taking with him a long-handled pick with which he attempted

C. H. E. Boardman, of Marshalltown, for to tap the valve. The supposition was that appellant.

M. M. Joyce, of Minneapolis, Minn., S. A. Anderson, of St. Paul, Minn., F. E. Northup, of Marshalltown, R. B. Alberson, of Minneapolis, Minn., and J. E. Holmes, of Des Moines, for appellee.

EVANS, J. The specification of negligence was that the blow-off cock of the engine, upon which the plaintiff was working, was defective as to its valve and as to its discharge pipe appurtenant thereto, in that the valve stuck and failed to close automatically, and in that the discharge pipe was not securely fastened by an appropriate clamp, so that the pressure of the escaping steam from the blowoff cock forced it out of position and threw a part thereof against the plaintiff's arm.

On the morning in question, the engine started at Mason City for its run to Monmouth, Ill. The plaintiff boarded it as fireman at 9:15 at Marshalltown, his run being from Marshalltown to Monmouth. At Gilman, the third station from Marshalltown, the engineer experienced trouble with the blow-off cock, in that the valve thereof wholly failed to close, whereby the steam and water of the boiler was rapidly escaping.

some substance had got under the valve and prevented it from settling into its seat. While the plaintiff was making his attempt, the pressure of the steam upon the discharge pipe drove it out of its position and dislodged a part of it and threw it with great violence against the plaintiff. This is the general outline of the facts of the accident. The contention for plaintiff is that the blow-off cock was in a defective condition. Such alleged defective condition was twofold:

(1) That the valve was defective in that it did not close.

(2) That the discharge pipe was not securely fastened to its place so that it failed to withstand the pressure to which the bldwoff process necessarily subjected it.

The defendant denied the negligence, denied the alleged defects, denied that the defects, if any, were the proximate cause of plaintiff's injury, and especially pleaded that the plaintiff's own negligent acts were the sole cause of his injury.

[1, 2] I. The first error assigned as a ground of reversal is that the verdict was contrary to the instructions and without support in the evidence. In support of this assignment, the defendant contends, not only The blow-off cock was a device for enabling that no defective condition was shown as to the engineer to blow out the dirty sediment the appliances and that the defects, if any, which settled in the mud-ring of the boiler. were not the proximate cause of the injury, The mud-ring was the lowest point in the but that it affirmatively appears that the boiler and was intended to catch the set- plaintiff's own negligent acts were the sole tlings. In the bottom thereof was an open- cause of the injury. The plaintiff testified ing which was covered with a steel valve. that the engineer said to him when he startThis valve was held in its seat by the pres-ed with his pick, "You can't get it," or, "Don't sure of the steam. A lever was so connected go near it." The engineer testified for the with it that the engineer could lift the valve defendant that he did not know that the by the application of force. When it was plaintiff had left the cab. It is urged by dethus lifted, the steam and water under great fendant that the blow of the pick by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(175 N.W.)

In

Section 1. Equipment of Locomotives with Safe Boilers and Appurtenances. "That section two of the act entitled 'An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances teen hundred and eleven, shall apply to and inthereto,' approved February seventeenth, nineclude the entire locomotive and tender and all parts and appurtenances thereof." 38 Stat. 1192.

plaintiff was the cause of the displacement 1916. It was later amended by an act passed of the discharge pipe, and that such dis- on March 4, 1915 (38 Stat. 1192), as chapter placement would not have occurred if the 169, which now appears as section 8639a of plaintiff had withheld the blow. It is also such United States Compiled Statutes. urged that he put himself wrongfully in this act appears the following provision: the place of danger in violation of the orders of the engineer. These contentions are based upon inferences which are drawn from the evidence. The evidence is by no means conclusive thereon. There was sufficient basis in the evidence for a finding by the jury that these appliances were in a defective condition. Even the witnesses for the defendant who testified to an inspection immediately following the disaster disclosed that they found the blow-off cock and the clamp loose. We shall presently set out the federal statute which has an important bearing upon this Section 2. Locomotives-Use, Unless with Safe point. Not only does the evidence fail to after the first day of July, nineteen hundred and Boilers, Unlawful-Inspection. "That from and show conclusively that the accident was eleven, it shall be unlawful for any common the sole result of the wrongful act of the carrier, its officers or agents, subject to this act plaintiff, but the jury could have properly to use any locomotive engine propelled by steam found therefrom that his conduct was not power in moving interstate or foreign traffic wrongful at all. The failure of the valve to unless the boiler of said locomotive and appurteclose created a grave emergency. The steam nances thereof are in proper condition and safe to operate in the service to which the same is and water were rapidly escaping, and it was a question of only a brief time when the low- put, that the same may be employed in the active service of such carrier in moving traffic ering of the water in the boiler would ex-without unnecessary peril to life or limb, and pose its crown sheet. Danger of explosion all boilers shall be inspected from time to time was imminent unless something was done quickly. Unless the valve could be restored to its function, it would be necessary at once to extinguish the fire under the boiler. We see little ground, therefore, for holding as a matter of law that the activities of the fireman under such circumstances were wrongful or negligent.

[3, 4] II. Complaint is directed to instruction 9 given by the trial court. This was as follows:

"You are further instructed that under the law the defendant was bound to furnish to the plaintiff a locomotive boiler, at the time in question, which was safe to be used, both as to the boiler and as to its appurtenances, and to keep and maintain the same in such condition at all times so as not to expose the plaintiff to any hazard or risk."

It is urged that this instruction ignored the question of negligence and was contradictory to the other instructions given. It is true that the federal Employers' Liability Act makes negligence the basis of the employer's liability. The trial court so instructed the jury. It is true also that such act and the federal Safety Appliance Act enjoin certain specific duties upon the employer, a breach of which is declared to be unlawful and punishable. Such breach, therefore, constitutes negligence.

One of the federal Safety Appliance Acts is generally known as the Locomotive Boiler Act. It was enacted February 17, 1911, as chapter 103 of the Laws of 1911 (36 Stat. 913), and now appears as sections 8630-8639 of the United States Compiled Statutes of

in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." U. S. Comp. St. §

8631.

The Employers' Liability Act, as enacted April 22, 1908, and later amended, now appears as sections 8657-8665 of the United States Compiled Statutes of 1916. In this act appears the following:

Section 1. Liability of Railroads for Injuries to Employés. "That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then of the next of kin dependent upon such employé, such employé's parents; and, if none, then of for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

ployé. "That in all actions hereafter brought Section 3. Contributory Negligence of Emagainst any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employé or where such injuries have re

It will be seen, therefore, that instruction 9 of the trial court which is complained of was conformable to these federal statutes as construed by the highest court. The conflict between this instruction and the other instructions given on the subject of negligence is apparent and not real. Where the wrong of defendant is predicated upon the breach of a penal statute, it is deemed negligence as a matter of law. In such a case, it is quite immaterial whether the term "negligence" be used or not for the purpose of submission to permissible. In the light of the evidence ina jury.

troduced by the defendant on the same sub[6] III. One ground of reversal is assigned¦ject, the evidence was not prejudicial, even if

(175 N.W.)

it had been erroneous. Dr. Nichols, testify-tablished circumstantially, and by legitimate ining for the defendant, testified as follows: ferences from the evidence.

2. ASSAULT AND BATTERY 92-PROOF OF the question of intent, and it was proper for the

prosecuting witness to testify that there was In a prosecution for assault with intent to trouble between him and the accused over an inflict a great bodily injury, intent may be es-espionage matter during the war.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

Appeal from District Court, Greene Coun- [ 2x4, 3 or 4 feet above the floor-some of the ty; M. E. Hutchison, Judge.

witnesses put it more than that; others, less. of the studding from defendant. According Wattonville was standing on the other side to defendant's witnesses, the brick hit the studding a little to one side of Wattonville, and fell at the foot of the studding; that, after defendant threw the brick, Wattonville went out of the door. Defendant's evidence tends to show that Wattonville was standing about 4 feet from the studding; other witnesses put him closer. Defendant was stand

Defendant was indicted by the grand jury of Calhoun county, charging him with the offense of assault with intent to inflict a great bodily injury. Upon application of the defendant, the cause was transferred to Greene county, where a trial to a jury was had, and a verdict of guilty of the crime charged was returned, and sentence and judgment pronounced. The defendant appeals. Affirmed. C. H. Van Law, of Marshalltown, for appel-ing some 4 or 5 feet higher than Wattonville. lant.

H. M. Havner, Atty. Gen., J. F. Lavender, Co. Atty., of Rockwell City, and E. G. Graham, Co. Atty., of Jefferson, for the State.

The testimony for the state is that, when defendant told Wattonville and Wygandt that he did not want them there on their property, Wygandt said to Wattonville to look out, that defendant was going to throw the brick; that Wattonville and Wygandt turned and started out of the back way, the way they had enter

of an eyewitness, which indicates the tendency of the state's testimony. He says:

*

PRESTON, J. The assault is alleged to have been made with a brick thrown by the defendant at the complaining witness, Wat-ed. We shall set out a part of the testimony tonville, and which did not hit the mark. At the time of the transaction in question, the defendant was pastor of the First Evangel"I saw Mr. Wattonville's head just coming ical Church of Pomeroy, Iowa. The church up through the stairs on the stairway, and Mr. was then engaged in the construction of a Schumann was standing up on this runway, and church building. The construction work was Mr. Wattonville came in, up in the auditorium, in charge of a building committee, of which and Mr. Schumann reached over on the floor defendant was chairman. Appellant con- that was right next to where he was standing, tends that he was in charge of the building, and picked up a brick, I didn't hear him say in the name of the building committee. The anything, but I saw him square to hit them, evidence was such, however, that the court throw at them; and the fellows turned back properly instructed the jury that it was for and running he threw at them. The brick did to go away; and while they were turning back them to determine whether the defendant or not hit Mr. Wattonville-it hit a 2x4. I examthe contractor was in the lawful custody and ined the 2x4 afterwards. On the 2x4, about control of the building, as it was then being 3 or 4 feet off the floor, there was a big nick constructed, and which had the right to for- in the side of it. I did not see what became bid the entrance of the prosecuting witness, of the brick after it hit the 2x4. * At Wattonville, in the church at the time in the time the brick was thrown, Mr. Wygandt question. The act complained of occurred was down farther on the stairway, pretty near about 10 o'clock in the morning of Novem- to the door, I should judge. Mr. Wattonville was just going downstairs, and the stairs was ber 2, 1918. The complainant and one Wy-just an ordinary stairs, and he had to be right gandt met on the street, and one of them suggested that they go to the church that was being built. The church was located on a corner of the intersection of two streets, and the two men went around to the back of the church, and entered at a grade entrance, which would take them into the basement. They then went up a flight of stairs, which would bring them to the main auditorium. As they entered, defendant was on a staging, or scaffolding, from 6 to 10 feet high. According to defendant's testimony, Wattonville [1-8] 1. It is contended by appellant that and Wygandt were about 12 or 14 feet dis- the evidence is insufficient to sustain the vertant from defendant, and had advanced a dict, in that there is no proof of any specific step or two into the auditorium at the time intent upon the part of the defendant to inthe brick was thrown. Other witnesses place flict a great bodily injury. It is, of course, them closer. According to some of defend- true, as contended by appellant, that it is ant's witnesses, as Wattonville and Wygandt necessary to a conviction that the intent, as came up the stairs leading from the grade well as the assault, must be established. entrance, defendant told them not to come This may be, and of necessity must be, in in, and stay away; that he didn't want them most cases, established circumstantially, and there on the property. In the construction by legitimate inferences from the evidence. some 2x4's had been placed; they were about | No injury was inflicted upon complainant by 15 inches apart; the brick hit and dented a defendant; but that is not necessary, to con

up beside the 2x4, or else he couldn't have got downstairs. At the time the brick hit the 2x4, he was not over a foot away from it."

Another witness testifies that Wattonville was retreating, and had retreated when the brick was thrown. We do not deem it necessary to set out the evidence more in detail. There was such a dispute as to make a jury question as to the matters complained of, and which will be referred to later.