Coker v. Monaghan Mills

• Decision Date: 27 December 1902
• Citation: 119 F. 706
• Court: U.S. District Court — District of South Carolina
• Parties: COKER v. MONAGHAN MILLS et al.

119 F. 706

COKER v. MONAGHAN MILLS et al.

United States Circuit Court, D. South Carolina.

December 27, 1902

Staley & Bowman, Hoke Smith, and H. C. Peeples, for complainants.

H. A Toulmin amend Edmund Wetmore, for defendants.

BRAWLEY District Judge.

The plaintiff brought her action in the court of common pleas for Greenville county against the Monaghan Mills. This complaint was amended by making the Flynt Building & Construction Company, a corporation of the state of Massachusetts, a party defendant also. This last-named corporation filed its petition for removal into this court on the ground that there was a separable controversy. The prayer of this petition was granted, and an order passed for the removal. When the case came here the defendant the Flynt Building & Construction Company filed a demurrer to the complaint as not setting out a cause of action against it. Before this demurrer came up for a hearing, the plaintiff asked leave to amend her complaint, as hereinafter stated. To reach a conclusion on this motion, a summary of the complaint as it was filed here is necessary.

After stating the corporate character of the defendants, the complaint proceeds: On January 28, 1901, the Monaghan Mills owned a certain brick building, three stories high, which it had constructed for the manufacture of cotton goods, in which it was having c manufacture of cotton goods, in which it was having certain machinery and other appliances placed. The end of this building was not built of brick, but closed with a wooden partition, so that in the future the building could be enlarged. Alongside of this wooden end the Monaghan Mills had constructed a stairway leading from the bottom to the top floor, with doors being swung on the inside of the building on the right. Persons having occasion to go from the ground to either floor were permitted and accustomed, if they desired, to use this stairway and these doors for this purpose. The door was unlocked and the stairway free. That on the said day of January the intestate of plaintiff was in the employ of the Sacco & Petty Machine Shops, a corporation which had sold to the Monaghan Mills certain machinery, and was under contract to place such machinery in said building as the Monaghan Mills should direct. That at the instance and request of the Monaghan Mills the said Sacco & Petty Machine Shops on that day directed plaintiff's intestate to go to the mill and report for orders. That plaintiff's intestate did go as directed, with tools and overalls and lunch, reported to the defendant the Monaghan Mills, and was instructed by it to place certain machinery on the third floor of said building. That the intestate never had been in the building before, knew nothing of the conditions inside of it, and defendants failed to apprise him of said conditions, or warn him of any danger incident to approaching or entering the third floor by that stairway or door. That just inside the building, opposite to and within a few inches of the said door, was an open space or elevator shaft, through which the elevator of the defendant, the Monaghan Mills, could ascend and descend from and to the lowest floor. This shaft had no fencing, railing, or other protection around it, and was so close to the door that any one entering the door, and unaware of its existence, in one step would fall into it. That on that day the intestate, when directed by the Monaghan Mills to go on the third floor and place machinery thereon, went up the stairway, unaware of the danger, opened the door, took one step forward, and fell into and through the elevator shaft to the floor below, and was instantly killed. It will be observed that so far the complaint alleges that the ownership of this building by the defendant the Monaghan Mills; its contract with the Sacco & Petty Machine Shops to place machinery in this building; that plaintiff's intestate was in the employ of this latter company, and instructed to report to him to put this machinery on this third floor; that, pursuant to these instructions of the Monaghan Mills, he went to the third floor, without warning or notice, and fell through the elevator shaft; there being no averment or suggestion that the Flynt Building &amp Construction Company knew of him or his purpose, or his instructions from the Monaghan Mills. The complaint then for the first time mentions the Flynt Building & Construction Company, as follows:

'That the defendant Flynt Building & Construction Company had the contract, so plaintiff is informed and believes, of erecting the said building, and turning the same over to the defendant Monaghan Mills complete; and under the terms of the said contract, so plaintiff is informed and believes, it was also the duty of this defendant to see that the said premises were safe and suitable, the elevator shaft securely guarded; and, under the terms of its contract with the said Monaghan Mills, it is also liable to this plaintiff for any damages which she may be entitled to recover in this action for the acts of negligence alleged in this complaint.

'But for the defendants' negligence, plaintiff's intestate would not have been killed on that occasion, and, in addition to the other acts of negligence

...