Alpha Portland Cement Co. v. Curzi

• Decision Date: 13 January 1914
• Docket Number: 135.
• Citation: 211 F. 580
• Parties: ALPHA PORTLAND CEMENT CO. v. CURZI.
• Court: U.S. Court of Appeals — Second Circuit

211 F. 580

ALPHA PORTLAND CEMENT CO. v. CURZI.

No. 135.

United States Court of Appeals, Second Circuit.

January 13, 1914

[Copyrighted Material Omitted]

This was an action brought to recover from an employer for an injury suffered by his employe.

The plaintiff at the time of the injury complained of was 18 years of age and was in the employment of the defendant in a cement mill owned and operated by the latter at Martin's Creek in Pennsylvania. There was installed in the mill as a part of the plant a vertical conveyor, lift or hoisting machine, consisting of an endless chain with metallic pan-shaped shelves attached thereto and used for the purpose of hoisting dry cement from one level to another. This vertical conveyor or lift, between 50 and 60 feet high, was inclosed in a shaft, and the shaft had become partially filled at the bottom with dry cement so that the lift could not be operated without removing the cement. The defendant's superintendent directed the plaintiff to enter the shaft at the bottom for the purpose of removing the cement. While he was at work in this place removing the cement by means of a shovel and bucket, he received the injury for which the action was brought.

The lift consisted of two endless chains running over sprocket wheels at the top of the shaft and under other sprocket wheels at the bottom of the shaft. At the time of the accident the lift had not been fastened to make it secure. The lift, as the plaintiff stood on it or climbed on it started and carried him up to the top of the shaft, and his right arm passed between the conveyor chain and one of the wheels on which the chain turned, and was crushed and had to be amputated. The jury awarded him $10,000.

Everett, Clark & Benedict of New York City (Edward Grenville Benedict and Louis H. Porter, both of New York City, of counsel), for plaintiff in error.

Hobart S. Bird, of New York City, for defendant in error.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

This is a common-law action brought by an employe who was set to work in a place alleged to have been unsafe. The plaintiff, a minor and inexperienced, was without knowledge of machinery. No warning of the danger to which he was exposed was given; neither were any instructions issued. He was ordered to clean out the bottom of the elevator shaft and remove the cement which had accumulated in it.

The elevator had not been connected with the other machinery in the mill. The weight of the cement and the buckets on the back side of the chain being from 20,000 to 29,000 pounds in excess of the weight on the opposite side of the endless chain, the elevator, not having been connected with the machinery, was bound to move and the endless chain revolve to a state of equilibrium unless blocked or fastened, as soon as the cement in the boot was sufficiently removed to release it. It was the custom in such cases to chain the elevator or block it by means of beams or bars before sending men down into the shaft on such an errand as the plaintiff was ordered to perform. No such precaution was taken in this case, and, when the plaintiff had sufficiently removed the cement from the boot to release the chain, it began to move and the plaintiff was caught in it and the accident followed.

In Smith v. Baker (1891) A.C. 325, at page 362, Lord Herschell said in the House of Lords:

'It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.'

And in Williams v. Birmingham Battery & Metal Co., L.R. 2 Q.B.Div. 338, 345, Romer, L.J., said that:

The authorities 'appear to me to establish the following propositions as to the liability at the common law of an employer of labour. If the employment is of a dangerous nature, a duty lies on the employer to use all reasonable precautions for the protection of the servant. If by reason of breach of that duty a servant suffers injury, the employer is prima facie liable.'

In the United States, also, it is established beyond controversy that at common law it is the positive duty of the employer to furnish his employe with a reasonably safe place in which to work. Armour v. Hahn, 111 U.S. 313, 4 Sup.Ct. 433, 28 L.Ed. 440; Welle v. Celluloid Co., 175 N.Y. 401, 67 N.E. 609; Rincicotti v. John S. O'Brien Contracting Co., 77 Conn. 617, 60 A. 115, 69 L.R.A. 936; Libby v. Banks, 209 Ill. 109, 70 N.E. 599; Foster v. New York, etc., R. Co., 187 Mass. 21, 72 N.E. 331; Finnerty v. Burnham, 205 Pa. 305, 54 A. 996; Collins v. Harrison, 25 R.I. 489, 56 A. 678, 64 L.R.A. 156; Geno v. Fall Mountain Paper Co., 68 Vt. 568, 35 A. 475.

The employer, in the absence of a statute, does not insure the employe's safety, but is required to exercise such ordinary care and diligence as may be reasonable in view of the work to be performed and 100 U.S. 213, 25 L.Ed. 612; Westinghouse Electric, etc., Co. v. Heimlich, 127 F. 92, 62 C.C.A. 92; Glenmont Lumber Co. v. Roy, 126 F. 524, 61 C.C.A. 506; Choctaw, etc., R. Co. v. Holloway, 114 F. 458, 52 C.C.A. 260; Probst v. Delamater, 100 N.Y. 266, 3 N.E. 184; Thompson v. American Writing Paper Co., 187 Mass. 93, 72 N.E. 343; Burns v. Delaware, etc., Tel., etc., Co., 70 N.J. Law, 745, 59 A. 220, 592, 67 L.R.A. 956; 26 Cyc. 1102.

This duty of the employer to furnish a safe place in which to work is a positive obligation resting on him and which he cannot escape by delegating the responsibility to another. Texas, etc., R. Co. v. Barrett, 166 U.S. 617, 17 Sup.Ct. 707, 41 L.Ed. 1136; National Steel Co. v. Lowe, 127 F. 311, 62 C.C.A. 229; Kirk v. Sturdy, 187 Mass. 87, 72 N.E. 349; Pursley v. Edge Moor Bridge Works, 168 N.Y. 589, 60 N.E. 1119; Ide v. Fratcher, 194 Ill. 552, 62 N.E. 814; Newton v. Vulcan Iron Works, 199 Pa. 646, 49 A. 339.

Whether a place is safe or unsafe may depend in some degree upon the work which is to be undertaken as well as upon the age and experience of the one who is sent there to undertake it. In this case the employer knew or should have known that the conveyor or lift would move by the weight of the buckets as soon as sufficient cement was removed from the boot to release it, and that when that occurred, as it was bound to occur in the course of the work, the place would be dangerous unless the conveyor was blocked or fastened and he failed to block or secure it. And he knew or ought to have known that the young man he had ordered to do this work was without knowledge of machinery or the danger that was involved in the undertaking.

In view of what was to be done in the shaft and of the danger which was involved and would inevitably arise unless the conveyor was secured and because it was not secured, we do not think this court should hold that the plaintiff was furnished a reasonably safe place in which to work. It was an unsafe place, made unsafe by the defendant's own negligence.

The defendant's contention is that its negligence, if it was negligent, may be disregarded because when the plaintiff began his work the conveyor could not move being held by the cement and therefore the place was safe and only became unsafe by the plaintiff's own act in removing the cement and that he assumed the risk of his own acts. But surely it cannot be said that he assumed a risk the danger of which was unexplained to him although it was known to his employer and was in fact due to that employer's own failure to take proper precautions not to expose his servant to a needless and unnecessary risk. The law does not lend countenance to such a theory. It is more reasonable to imply a contract on the part of the master not to invite a servant into unknown dangers than it is to imply one on the part of the servant to run the risk of dangers that he neither knows nor suspects. Cooley on Torts, p. 1109. But if it be conceded that the place in which the plaintiff was set to work was a reasonably safe place and that the master's duty was fully met at the time the plaintiff began his work, this would not necessarily help the defendant. For it is equally a master's duty to keep the place safe except as the conditions may be changed by the very work which the servant is required to do or by his manner of doing it. Cooley on Torts, p. 1113.

We do not lose sight of the principle that where a place is originally safe and becomes unsafe only as the work progresses and in consequence of the manner in which it is done the master is ordinarily not responsible. Devlin v Phoenix Iron Co., 182 Pa. 109, 37 A. 927; Mullin v. Genesee Electric, etc., Co., 202 N.Y. 275, 95 N.E. 689; Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 P. 515; Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S.E. 509. The defendant's difficulty is that this principle is not applicable to the facts of this case. If a man is employed for example in a quarry to blast rock, and in the course of his blasting is injured by the fall of a rock from the face of a ledge, then the principle the defendant invokes may be applicable. In such a case the injury is not due to the negligence of the man's employer. The danger to which the servant is exposed is the direct result of his own operations and is a danger necessarily incident to the work he is engaged in and is a danger which he appreciates and assumes. See Mielke v. Chicago R. Co., 103 Wis. 1, 79 N.W. 22, 74 Am.St.Rep. 834. And such may be the case where men are injured working in gravel pits and in sand banks where the conditions and surroundings are constantly changing as a direct result of the servant's operations and where the...