Birmingham Furnace & Mfg. Co. v. Gross

• Decision Date: 01 December 1892
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM FURNACE & MANUF'G CO. v. GROSS.

12 So. 36

97 Ala. 220

BIRMINGHAM FURNACE & MANUF'G CO. v. GROSS.

Supreme Court of Alabama

December 1, 1892

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action under the employers' liability act by R. S. Gross administrator of the estate of Julius N. Weiss, deceased against the Birmingham Furnace & Manufacturing Company for causing the death of plaintiff's intestate. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint as originally filed contained six counts. By amendment two counts (7 and 8) were added to the complaint. The defendant demurred to these counts on the ground that they were barred by the statute of limitations. This demurrer was overruled. The defendant demurred to the several counts of the complaint. The demurrer to the fifth count was confessed by the plaintiff, and said count was stricken from the complaint. The other demurrers were overruled. The defendant pleaded the general issue and contributory negligence. The third plea was in the following language "And for further answer to said complaint the defendant says that plaintiff's intestate was guilty of contributory negligence." The plaintiff demurred to this plea on the ground that it was too general and indefinite and did not state the facts which constituted contributory negligence. This demurrer to the third plea was sustained. The defense of contributory negligence was set up by other pleas.

E. K. Campbell, for appellant.

Lane & White, for appellee.

HEAD J.

Under the decisions of this court the second count of the complaint sets forth with sufficient certainty a cause of action under subdivision 1, § 2590, Code, and the demurrer to it was properly overruled. The third plea was manifestly bad. It states simply that plaintiff's intestate was guilty of contributory negligence, without averring that such negligence contributed proximately to the injury. The demurrer was properly sustained. The demurrers to the pleas of the statute of limitations to seventh and eighth counts, which were introduced by amendment, were properly sustained. The matter introduced by the new counts was within the lis pendens. Railroad Co. v. Chapman, 83 Ala. 453, 3 South. Rep. 813.

This is an action under the employers' liability act against the appellant for negligently causing the death of appellee's intestate, Julius N. Weiss. The appellant was engaged in operating an iron furnace, and Weiss was engaged as its master mechanic, whose duty it was to see that the furnace and all its machinery were kept in proper repair and condition. One Thompson was foundry man, and had general charge and control of the operation of the furnace. P. Hogsett was the general manager of defendant, having the superior control and management of its business generally. In operating the furnace, air is forced by the engines in pipes through what are called the "stoves," and thence into the furnace, making the blast. The air enters near the base of the furnace, and blows towards the top. This forces the smoke and gas through the top of the furnace if the contrivance in the furnace called the "bell" is open, (lowered.) If the bell is closed, (raised,) the smoke and gas escape by means of a large pipe, three or four feet in diameter, called the "downcomer," which is attached to the furnace near its top, and extends down wards, connecting with the stoves and boilers by means of flues. When the gas reaches the stoves it is burning, and serves to heat to a high degree the cold air forced into the stoves, and this hot air passes into the furnace, and makes the blast. When the gas reaches the stoves through the "downcomer," there are valves called "chimney valves," through which the gas and smoke pass, and are liberated through the smokestack. The smokestack at defendant's furnace is about 140 feet high. Attached to the "downcomer," near where it is connected with the furnace, is a cylinder about 32 inches in diameter, called the "bleeder." This bleeder extends directly upward to the height of about 12 feet above the top of the furnace, and its use is to act as an escape valve in case the "downcomer" gets too full of gas. When that is the case, the gas flows into and fills the bleeder. The bleeder is surrounded by a heavy iron cap, called the "damper," weighing 200 or 300 pounds. This damper is raised, to allow gas to escape from the bleeder, by means of a lever attached to it, which works on a bolt through the arm of the lever. The arm extends out horizontally several feet. At its end furthest from the damper is a chain extending to the ground, by means of which the damper is raised and the bleeder opened by workmen below. The top of the furnace near where the bleeder is attached to the "downcomer" is about 18 feet in diameter, a part of which is taken up with a platform about 4 feet wide, on which the men feeding the furnace run the cars of ore and coke. Here a solid railway of iron, about 4 feet high, surrounds the furnace. The edge of the bleeder is about 6 inches from the edge of this railing.

It was shown that sometimes, when the furnace was in operation, the weight of the chain suspended from the arm of the lever above referred to, would raise the damper at the top of the bleeder, and cause the gas to escape, and produce a disagreeable noise, and sometimes the force of the gas flowing from the "downcomer" into the bleeder would produce a similar result. This noise was very disagreeable to the persons about the furnace, though it did not impair in any way the operation of the furnace. Weiss complained that it interrupted his sleep at night. The deceased, Weiss, and foundry man, Thompson, had, within a period of a month or more before Weiss was killed, talked about the noise, and Weiss had several times remarked that the first time the furnace stopped he was going to remedy it; and it was suggested that it could be done by shortening the arm of the lever. On the 17th day of June, 1887, Thompson stopped the furnace three or four hours, to enable him to repair some of the valves on one of the stoves, and when it stopped, Weiss, aided by some of the furnace laborers, went up to the bleeder to remedy the defect which caused the noise. They reached the arm of the lever at the top of the bleeder by means of ladders, which they rested on the platform above described, and leaned against the bleeder. The ladders were held firmly by some of the hands, so as that they could be safely ascended. Weiss, with assistance of the hands, ascended to the arm of the lever, took it off, and sent it down to the blacksmith shop, where it was, in a short while, shortened by the smith, and sent back. Weiss then, with like assistance, carried it up to its place, properly adjusted it, and, as he was in the act of putting in a key to hold it in place, remarked, "I cannot stand it up here," and started down the ladder, and, as he made the first step, fell to the ground, a distance of some eighty feet, and was killed. There was evidence tending to show that gas was then escaping from the bleeder, and that he was affected and caused to fall by it. After Weiss had first ascended to the top of the furnace, and before he took the arm of the lever off, he called down to Thompson, who was then working on the valves he had stopped the furnace to repair, to know if he, Weiss, might close the bell in the furnace, and Thompson replied that he might. The bell was then open, and could be closed only by appliances operated at the top of the furnace, where Weiss then was. Weiss had no authority to close the bell without Thompson's permission, and, obtaining that permission, he closed it, and proceeded with his work. It required about 20 minutes to take off the arm of the lever, and about as long to replace it. There was evidence tending to show that when the bell and the chimney valves below were both closed the gas would fill the bleeder, and when the bell or the valves were open the gas would find escape in other ways, and not fill the bleeder. It was shown, however, that under all conditions some gas would go into the bleeder, and was likely to escape therefrom at any time to a greater or less extent. Weiss was an old and experienced master mechanic, knew all about the construction of furnaces and the accumulation of gas, and its different means of escape under the different conditions. Thompson was likewise experienced as a foundry man, and possessed like knowledge in reference to gas. The evidence was without conflict that Weiss had exclusive control of the mechanical department, and that in keeping the plant and machinery in order he had command of the necessary materials supplied by the company, and of the carpenter and other laborers employed there, whenever their aid was necessary in the performance of his duties as master mechanic. He was the only person skilled in his department, and of the manner and means of performing his duties he was complete master, subject, in respect thereto, to the orders...