260 FEDERAL REPORTER, p. m., arriving at Toyah about 11:30 p. m., and remaining in Toyah Second. That it was the duty of the firemen of passenger engines in the employ of defendant to keep the cab of the engine clean, and to clean all that portion of the engine above the running board, to Keep the oil cans and lubricators filled with oil, and to generally obey orders of the engineer when the train was running. Third. That the defendant had at El Paso a roundhouse and repairing shops, and a machinist to inspect and repair the engines, and also had at Toyah a roundhouse, and a machinist to inspect and repair its engines, and that engines coming into each place were inspected and repaired before going out again. Fourth. When defendant's passenger engines arrived at El Paso, including the engine on which plaintiff worked, the engineer and fireman would get off, and leave the engine attached to the train at the depot, and the engine would then be taken charge of by the yardmen, and an employe called the "hostler" would detach the engine from the train, and take the same down into the yard to coal it, sand it, and do such other things as were necessary, except repair it, and then place the same in the roundhouse, where it would be cleaned by the servants other than the fireman in all its parts beneath the running board, and inspected by the machinist and repaired. The fireman would have ample time after the engine had been placed in the roundhouse to clean out the cab, wipe off his part of the engine and fill his oil cans and lubricators. engine would be taken from the roundhouse, and attached to the train, by the yardman or hostler, where the fireman and engineer would get on the train again to begin their trip. Plaintiff knew all this. Then the Fifth. There was no rule of the company that prohibited the fireman from getting on the engine for the purpose of filling his oil cans, etc., before it was placed in the roundhouse, nor was there any rule that specified a particular time when he should do this work, the only rule being that he was to have his engine in proper condiThere was a rule of the company tion to go out when its turn came. that the engineer and fireman of a passenger train should not be called for duty within, after they had come in on a trip. That the fireman could select any time that was most convenient for him to clean the cab, fill the oil cans, etc., and that while the engine was hot, and the oil warm, it was more convenient, and could be done in less time than after the engine was cooled off. Sixth. That passenger engine No. 90 has two steps on the right side. One of these steps is a loop fastened under the tender, and a person getting off the engine backwards would have this step on the left. The other step, which would be on his right, was attached to the rear part of the engine. This latter step, the proof shows, was loose. The gangway of the engine is where the tender and engine come together, and there is an opening on each side of the engine. These steps were used to get on and off the engine. The step which is claimed in this case to be defective is the step which is attached to the engine. This step consists of a shovel-shaped piece of iron, standing directly out from the engine, firmly fixed to a rod of iron about an inch in diameter, and about 18 inches long, which rod passes up through the iron casting at rear of engine, about 6 or 8 inches thick. A shoulder to this rod fits underneath the casting, and the part passing through above has threads on the upper end, upon which the nut is screwed firmly down on the casting, fastening the rod in the casting so that it will not move. This nut is about 2 inches square, and the thread on the rod extends 5 or 6 inches, thus making the rod extend above the nut, when the nut is properly screwed down,-and covering this extension above the nut is a tubular piece of brass arranged for ornament, which hides from view that portion of the nut immediately around the threads of the step bar. The step affixed to this bar is about 12 or 14 inches above the track, and the one affixed to the tender is about 6 inches higher. Seventh. On the 29th of November it was necessary to put a spring on the right side of the engine, and in order to do so this step had to be removed, in order to place a jackscrew under the rear of the engine; and in doing this the rod holding the step was taken out of the casting by unscrewing the nut described in paragraph 6, and the step was replaced on that morning at El Paso, before the engine started on its run to Toyah. In replacing the step the plaintiff assisted the machinist of defendant at El Paso (Rossiter) in tightening up the nut; and the same day the engine left El Paso, taking out a passenger train at the usual hour, 2:30 p. m., and made the run to Toyah. The machinist and plaintiff testified that the nut was properly screwed on at El Paso, and would not have become loose in a trip from El Paso to Toyah and return. Eighth. That at Toyah some repairs were made to the engine. Alex Mitchell, who was foreman of the shops and yards at Toyah, undertook to make these repairs himself. He had a couple of Chinamen assistants, who placed two jackscrews, one on each side of the front of the engine, and elevated the front. The Chinamen brought another jackscrew and put it down at the rear of the engine, near to this step above described, on the right side. of engine. That to put the latter jackscrews in place, to elevate the rear of the engine, it was necessary to remove this step. Plaintiff testified he saw a jackscrew on the ground near this step. Alex Mitchell, the foreman for defendant, testified: That he told the Chinamen to get the jackscrews, and under his direction they placed two jackscrews, one on each side of the front of the engine, but, without any instructions from him, they brought and put another jackscrew on the ground, near the step. That he was out of the roundhouse 5 or 10 minutes while the Chinamen were there, and that this jackscrew near the step was not placed under the engine, in position to elevate it, and that the step was not moved for the purpose of putting the jackscrew there, and that the nut on the step was not moved while the engine was at Toyah on that trip. That Mr. Young was the machinist at Toyah at that time, and that this was Sunday, the 30th of November, 1892; and he (Mitchell), believing that he was competent to do so, undertook to make the repairs needed on the engine himself, and jacked the front part of the engine up for the purpose of raising the pilot, and, finding that he could not accomplish the task of raising the pilot with the force at hand, by himself, he did not do the work necessary to raise the pilot or cowcatcher. That the report of the engineer in the book at Toyah provided for that purpose, reporting that repairs were necessary on his engine, on the 29th day of November, 1892, was: "Change water. Grind in blower. Put gasket in front joint of blower pipe. Raise the pilot." That "change water" means to let the water that engine came in on out, and put fresh water in. "Grind in blower" is to arrange blower so that the smoke will pass out at the stack, instead of coming out at the cab. Witness did this, which is a very small job. "Put gasket in front joint of blower pipe" was a very light job, and was done by witness. That to "raise the pilot" required witness to jack up the engine, and put gibs under the spring ends of the engine truck. The engine truck is near the front end of the engine. Did not do this, because it was a pretty big job, and he was doing the work by himself, with only the help of two Chinamen; and that the engine was all right to run as well as if it had been done, except the pilot was a little low, but it did not interfere with the safe running of the engine. Ninth. The engine left Toyah at the usual hour of 2 a. m. on the morning of the 1st of December, 1892, and arrived at the usual hour at El Paso, 10:30 a. m.; and plaintiff and engineer got off the engine several times, while it was standing, on the right side, and neither of them noticed anything the matter with the step. After they arrived in El Paso, they both left the engine attached to the train at the depot, getting off the engine on this right side, using this step, and went to their homes, and neither noticed anything wrong with the step. Tenth. A short time after the engine arrived in El Paso, the hostler, or a man whose duty it is to take it, coal it, etc., and put it in the roundhouse, took charge of it, detached it from the train, ran it into the yard, and set it on a transfer track, and left it there an hour or so; then took it to the coal cars, and left it there for the coal heavers to coal up, and it remained there an hour or more. The coal is placed in the tender, back of the engine, and piled up pretty high; and some of the pieces are a foot or 18 inches long, and 6 or 8 inches wide, and very heavy, and one of them, falling off the gangway, might strike the step. When the hostler went, later, to get the engine from the coal yards, the plaintiff was on the engine. The hostler ran the engine from where it was coaled, and was moving it to the proper position, near the sandhouse, to have the fire cleaned out. It was something near an hour from the time the hostler started to leave the coal yards before he got to the sandhouse, as he was detained by switches being closed. The plaintiff was on the engine during this time, cleaning up and filling his cans and lubricators, as the engine was nearing the place where the fire would be cleaned out; and two firemen cleaners were on the engine also, one of them in the gangway, and the other on the front of the engine. The engine was backing, and the fire cleaner on the engine was in the act of showing the hostler, by making a signal, where to stop the engine, and to clean out the fire. The engine at this time was moving very slowly,not more than three or four miles an hour, and the plaintiff had gotten off the gangway, and was standing on. the steps, with his face to the engine, and his left foot on the tender, and his right foot on the step which is heretofore described as attached by a rod to the rear of the engine; and the plaintiff, desiring to get out of the way of the fire cleaners as the engine passed the sandhouse, and for the purpose of stopping there, and waiting until the fire was cleaned out, stepped off the engine, in a careful and proper manner, that is, detaching his left hand and foot, and stepping down with his left foot, which was in the direction the engine was backing. The pressure of his right foot turned the rod to which the step was attached, in such a manner as to throw the step around, close to the rear driving wheel of the engine; and plaintiff's right foot slipped off the step, so that his right foot fell immediately under the driving wheel, and the engine continued to back. The wheel ran over a portion of his foot, and crushed it so that amputation became necessary. Eleventh. Plaintiff knew that there were servants and employes of the defendant for the purpose of inspecting and repairing his engine, and that the opportunity given to do this was when the engine was placed in the roundhouse at El Paso, and that at the time he fell and was injured the engine was not yet placed in the roundhouse, where it would be inspected and repaired. Twelfth. The cause of the turning of the step when plaintiff fell was on account of the nut heretofore described, on the top of the casting, not being taut, but it had become loose, leaving the rod to which the step was attached so it could be easily turned. It was the duty of the engineer who operates an engine to inspect and report all defects in repairs necessary on his engine, in a book kept for that purpose at each place, at the end of his run,-in this instance, at El Paso and at Toyah,-and on the day that the plaintiff was injured the engineer entered the following report at El Paso a few minutes after they arrived: "Pilot raising, and wash out engine" (that is, the pilot needed raising, and the engine should be washed out),-and he did not discover or report that the said step was loose, if it was loose at the time. Thirteenth. The defendant had proper and competent inspectors to inspect and repair engines in the yards at El Paso and Toyah, in addition to the inspections made by the engineers, and that at the time plaintiff was hurt the yard inspectors and mechanics had had no opportunity, under the routine and custom as to handling, coaling, sanding, cleaning, inspecting, and repairing engines as they arrived in the yards, to inspect or repair the engine upon which he was injured, and this plaintiff well knew. Fourteenth. Plaintiff's business in November and December, 1892, was fireman of a locomotive engine, and he had been engaged in that business about seven years. Fifteenth. Plaintiff did not know that said step on the engine was in a loose or defective condition at the time he stepped down. on the same and was injured. That the manner in which the plaintiff got off the engine, backwards, was a careful and prudent manner, he alighted in a careful and prudent manner, in the usual manner to alight from an engine, whether in motion or standing still, and that, if said step had been in repair, there was no danger in the manner in which plaintiff alighted from the engine. Sixteenth. Plaintiff testified that it was the custom of the firemen to go to their engines in the yard before they were put in the roundhouse, and do their work of cleaning such part of the engine as it was their duty to clean, and clean out and fill the lubricators and fill the oil cans; but, on being asked, he could not mention the name of any other fireman employed on defendant's passenger engines who did this, besides himself. He stated that his reason for doing this work on the engine at that time was that the weather was getting cool, and he had to strain his oil, and he would set his cans out in the gangway, near the engine, so that the warmth would make it easier and quicker work to handle the oil properly, whereas, if he had waited until the engine was in the roundhouse, the oil would have been somewhat chilled, and more difficult to handle, and that for some time previous he had been going on the engine and doing this work while the engine was in the yard, and before it had been placed in the roundhouse. Seventeenth. Mr. Wheeler, who is superintendent of terminal and foreman of the shops in El Paso, for defendant, the hostler Taylor, and the machinist Rossiter, employes in the defendant's yard and shops in El Paso, testified that plaintiff was the only fireman of a passenger engine that went upon his engine in the yard in El Paso to do his work before his engine had been placed in the roundhouse, and that they had known him to do so three or four times before the accident. Eighteenth. All the witnesses except the witness A. C. Wheeler, superintendent and foreman of defendant, testified that the nut above described, used to tighten the step, would not probably work loose, in making the trip from El Paso to Toyah and back, by the ordinary jar and running of the engine; that it might come loose by the step having struck against something. Wheeler testified that he was a competent machinist, having had experience of 20 years with engines; that the nut might work loose on said trip, but it was impossible to tell whether it would or not. Plaintiff testified that the step struck nothing in running that trip from El Paso to Toyah and return. It was proven that the nut and threads of the step rod were in good condition, and had not worked loose since the accident to plaintiff. |