[246 U.S. 121, 122] Messrs. F. G. Dorety, of Seattle, Wash., and E. C. Lindley, of St. Paul, Minn., for plaintiff in error.
Mr. James McCabe, of Seattle, Wash., for defendant in error.
Mr. Justice DAY delivered the opinion of the court.
Adaline Donaldson, as administratrix of the estate of Vance H. Thoms, deceased, brought suit in the superior court of Snohomish county, Wash., under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. . 1916, 8657-8665]), to recover damages for injuries received which resulted in the death of Vance H. Thoms, by reason of a boiler explosion upon one of the defendant's engines upon which decedent was employed as an engineer.
The charges of negligence, in the amended complaint alleged to have resulted in the injury and death of the decedent were: That the boiler on the engine was insufficient in that:
1. The button heads of the crown bolts of the boiler were excessively and unnecessarily large and consequently unduly exposed to the direct heat produced by the oil fuel used on the locomotive;
2. That the boiler was not provided with fusible safety plugs;- [246 U.S. 121, 123] 3. That scale was negligently allowed by defendant company, its officers and employes, to accumulate upon the crown sheet in the boiler.
The answer of the company denied negligence, and specifically set up the defense of contributory negligence and assumed risk on the part of the deceased. In the trial court the plaintiff recovered a verdict and judgment, and the judgment was affirmed in the Supreme Court of the state of Washington. 89 Wash. 161, 154 Pac. 133.
The ground of reversal principally urged here is that the testimony did not warrant a recovery by the plaintiff, and when properly considered required an instruction to the jury to find a verdict in favor of the company.
An examination of the record discloses that there was testimony tending to support the allegations of negligence set forth in the amended complaint. That the engine upon which the deceased was working had been a coal-burning engine but that at the time of the explosion the fuel used in its operation was, and for some time had been, oil. That the button heads on the bolts of the crown sheet at the top of the fire box (this sheet also formed the bottom of the water compartment over the fire box) were large ones when the engine was fired with coal, and were not changed with the change of fuel from coal to oil. That these button heads because of their size became overheated when oil was used for fuel, resulting in the deterioration and weakening of the strength of their material, and from the consequent giving away of the button heads, the crown sheet came down and the explosion resulted. There is also testimony tending to show that there was an accumulation of scale and a want of use of fusible plugs.
On the part of the company there was testimony tending to meet and refute that introduced by the plaintiff, and a considerable amount of testimony was introduced tending to show that the water in the boiler was too low, [246 U.S. 121, 124] thereby causing the explosion from the fault of the deceased engineer in allowing it to become so. There was testimony for the plaintiff to the effect that the water was not too low at the time of the explosion. The trial court submitted these issues to the jury, with the result that a verdict was found in favor of the plaintiff. The circuit court held that there was evidence sufficient to sustain the verdict, and refused to disturb it. The Supreme Court of Washington affirmed the judgment. In this situation it is enough to say that it is not the province of this court to weigh conflicting evidence. The record shows testimony supporting the verdict, and that is as far as this court enters upon a consideration of that question.
Complaint is made that the trial court failed to give an instruction requested by the company as to assumption of risk, and as to the effect of the federal Boiler Inspection Act.
Section 4 of the federal Employers' Liability Act (35 Stat. 65) provides:
That the federal Boiler Inspection Act was enacted for the safety of employes is obvious. Section 2 of that act (Act Feb. 17, 1911, c. 103, 36 Stat. 913 [8 U. S. Comp. Stats. 1916, 8631]) provides:
Counsel for the company at the trial upon assumed risk requested the following charge:
But the court charged upon this subject:
The charge requested is inconsistent with the provisions of section 4 of the federal Employers' Liability Act and section 2 of the Boiler Inspection Act. As given it is enough to say that it is more favorable to the company than the law requires. See Chesapeake & Ohio Ry. v. Proffitt, 241 U.S. 462, 468 , 36 S. Sup. Ct. 620.
The further contention is that the effect of this charge was to leave to the jury to determine the type of boiler construction, in respect to the use of the large button heads which are alleged to have made the engine unsafe to operate. And it is contended that there is testimony tending to show that the use of either the large or small kind of button heads was approved by the federal department of boiler inspection. Attention is directed to the testimony of an expert witness, offered by the defendant for the purpose of showing that low water was the cause of the explosion, in which he spoke of the use of the button heads of the larger and also of the smaller or taperhead kind, and was asked whether the United States government made certain requirements as to how boilers and engines should be constructed, to which he answered:
Asked whether the government inspects engines and locomotives in general, he answered, 'Yes, by the United States inspector.' and that there was a standard to which locomotives must be built in order to pass inspection. Asked as to the type of the crown bolt permitted, he answered that either type is acceptable when properly applied. It is evident that this testimony, whatever might be its effect, is far from showing an approval by governmentinspectors [246 U.S. 121, 128] of the use of the large type of button head upon an oil-burning engine.
Nor can we agree with the contention of the plaintiff in error that so long as the large button head had not been disapproved by the government inspector such fact is conclusive of the sufficiency of the type in use. We find nothing in the Boiler Inspection Act to warrant the conclusion that there is no liability for an unsafe locomotive, in view of the provisions of section 2 of the act, because some particular feature of construction, which has been found unsafe has not been disapproved by the federal boiler inspector.
Other errors are assigned, so far as they are open here we have examined these assignments and find in none of them reason for the reversal of the judgment of the Supreme Court of Washington, and that judgment is