Burch v. Louisville Car Wheel & Ry. Supply Co.

• Decision Date: 17 January 1912
• Citation: 146 Ky. 272,142 S.W. 414
• Parties: BURCH v. LOUISVILLE CAR WHEEL & RY. SUPPLY CO.
• Court: Kentucky Court of Appeals

142 S.W. 414

146 Ky. 272

BURCH v. LOUISVILLE CAR WHEEL & RY. SUPPLY CO.

Court of Appeals of Kentucky.

January 17, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, 3d Division.

Action by Willis Burch against the Louisville Car Wheel & Railway Supply Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Affirmed.

McQuown & Beckham and Herman Morris, for appellant.

Henry Burnett, for appellee.

CLAY C.

Appellant Willis Burch, while at work in the foundry of appellee Louisville Car Wheel & Supply Company, was enveloped by burning slag and molten iron which fell from the cupola, and badly burned. He brought this action to recover damages. At the conclusion of his evidence, the court directed a verdict in favor of appellee, and judgment was entered accordingly. To review the propriety of this ruling, this appeal is prosecuted. Appellant based his action on two grounds of negligence: First, failure to furnish safe tools and appliances with which to work; second, failure to furnish him a reasonably safe place in which to work.

The facts developed by appellant's evidence are in brief as follows: At the time of the accident, appellant was about 40 years of age. He had worked for appellee about 12 years at its other foundry on Jefferson street in the capacity of "cupola tender." He was employed in the same capacity at the foundry where he was injured, and had been working there about five or six weeks, and knew how to do the work. His wages were $2.50 per day. Among his duties were "to fix up the cupola, pick it out, daub it up, put in the bottom, and light it up." He then turned on the blast for the purpose of melting the iron ore. The molten iron was then let out into iron buckets, and he superintended this work, which continued throughout the day until late in the afternoon. It was then his duty to let out of the cupola the remaining slag and other molten material. To do this it was necessary to open the bottom of the cupola which consisted of two iron doors that folded back in an upward direction. The doors were held in place by three vertical iron bars which rested on the floor immediately underneath the cupola, and which were placed in position by appellant each morning before the cupola was filled with coke, sand iron ore, etc. Two of these vertical bars the appellant would remove by unscrewing them. The third bar rested on a wedge and when this bar was removed, the doors would swing open and the molten material would come out. To remove the third bar appellant was supplied with an iron rod, or pole, 17 1/2 feet long, and hooked at one end. This he would place around the vertical bar, and pull the latter from off the wedge. The room where appellant was at work was 23 feet wide. When he made the pull, he would run rapidly out of the door in order to escape injury from molten iron, steam, smoke, and flame which would spread out over the floor. On the occasion of the accident, appellant had unscrewed two of the uprights. He then placed the iron hook around the bottom of the remaining upright bar, went to the end of the iron pole, gave a jerk and ran out of the room. The doors hung and did not open. Appellant then returned and picked up the iron pole, the hook on which was still around the vertical bar. When he picked up the long iron pole, the door came open, and before he could get out of the way, he was covered with molten iron. In using the pole, he made use of the only means provided for opening the doors of the cupola. Appellant called the attention of the superintendent to the dangers...