Bolton-Pratt Co. v. Chester
| Decision Date | 03 February 1914 |
| Docket Number | 2548. |
| Citation | 210 F. 253 |
| Parties | BOLTON-PRATT CO. v. CHESTER. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Howell Roberts & Duncan, of Cleveland, Ohio, for plaintiff in error.
R. B. & A. G. Newcomb, of Cleveland, Ohio, for defendant in error.
Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.
Judgment having been entered for $5,000 on the verdict returned in favor of the defendant in error (hereinafter called the plaintiff), the plaintiff in error (hereinafter called the defendant) prosecuted error to secure its reversal. The case is now for decision.
The case was tried under the act of April 30, 1910 (101 Ohio L 195), section 6245-- 1 of which provides that contributory negligence on the part of an employe shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison, but that the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employe; and that all questions of negligence, contributory negligence and assumption of risk, shall be for the jury under the instruction of the court.
The disclosures most favorable to the plaintiff appearing on the record are sufficiently stated as follows: The sacks of cement, some of which, weighing 90 pounds each, fell upon and injured the plaintiff, had been piled or corded about two weeks prior to the accident by a servant experienced in work of that character within three to five feet of and parallel with the reinforced concrete building then in process of erection, and, to tie or bind them together to secure them against falling, were, as is usual in such cases, so placed that about the half of each sack of the several layers (except the first) overlapped the sack beneath. As the sacks were not entirely filled with the soft and yielding material the binding effect was heightened by each overlapping sack fitting over and depressing the one beneath, in which depression the overlying sack rested. When thus properly stacked, the pile is not liable to fall from the removal of sacks, if they be removed, as is customary, layer by layer, beginning at the top, unless its condition has been in some manner so disturbed as to throw it out of plumb. The pile was about 14 feet long, about 4 to 5 feet wide, and from 5 to 8 feet high, and for protection from the weather was covered with tarpaulin or canvas, which, where the ground was level, was weighted down with bricks. In the basement of the building close to the wall nearest the sacks were a concrete mixer and hoisting engine used to mix and lift the concrete to the upper portions of the building, the operation of which quite noticeably jarred the building and less perceptibly the adjoining ground. The jarring of the ground will cause sacks, placed as those in question were, to settle and the cement to creep or shift towards their ends. The pile will consequently become weakened and liable to fall, if it was originally out of plumb or is put so by the settling, or if the sacks on account of being poorly tied are opened by the increased pressure of the settling cement, thereby permitting it to escape and the pile to incline or shift. About an hour before the accident occurred the defendant's superintendent found the tarpaulin off of one corner of the pile and replaced it. The pile then appeared to be 'all right,' but he did not test it to determine its condition or to know whether it had shifted or not. It was raining then, and also at the time the plaintiff was injured. The plaintiff, who was a carpenter and as such had been employed by the defendant for about three months in building wooden forms to receive the concrete and was wholly inexperienced in the handling of cement and was given no instructions in that respect by the defendant, was directed by its superintendent to assist the laborers who were engaged in carrying sacks to the workman who was emptying them into the concrete mixer, and also to pile and count empty sacks. Neither he nor his fellow workmen threw back the canvas covering from the north end of the pile from which the removal of the sacks was in progress. After carrying a couple of sacks to the mixer, which was about two feet to the north and four feet distant adjoining the building, he began to count empty sacks which lay between the building and the stack of cement about midway from its ends. While thus engaged, with his back turned toward the corded sacks, a number of them fell upon and bruised him, inflicting a severe, disabling, and permanent injury to his right...
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