Byers v. Carnegie Steel Co.

• Decision Date: 25 February 1908
• Docket Number: 1,712.
• Citation: 159 F. 347
• Parties: BYERS v. CARNEGIE STEEL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

159 F. 347

BYERS v. CARNEGIE STEEL CO.

No. 1,712.

United States Court of Appeals, Sixth Circuit.

February 25, 1908

This case is here for the second time. The plaintiff, an employe of the defendant in the operation of an electrical locomotive, was injured by the sudden rising of a hydraulic elevator or 'jack,' used in defendant's plant in carrying cars of molten metal from the furnaces to the mixer. The method of operation of the elevator, and the manner in which the accident occurred, are described in the opinion of this court upon the former review. Carnegie Steel Co. v Byers, 149 F. 667, 82 C.C.A. 115, 8 L.R.A.(N.S.) 677. Upon the former trial as well as upon the second, it clearly appeared that the sudden rising of the elevator must have occurred through either an actual manipulation of the lever, or a defect in the valves regulating the admission of water. Upon the former trial there was no evidence that the elevator had ever risen before the time of the accident except under actual manipulation through the lever. There was no direct evidence of any defective condition of the valves. On the contrary, the testimony on the former trial indicated that an upward movement of the elevator, due to defective valves, would not be so sudden and swift a rise as described by plaintiff. There was affirmative and uncontradicted evidence that an inspection of the valves had been made at 8 o'clock of the morning of the accident, the spools examined, new leathers put on, and the valves left in such condition that they could not leak, and that this condition of the valves was shown by actual test at that time. The testimony of the alleged reported working loose of the spools at 6 p.m. (two hours before the accident) was disputed by the millwright and one of the assistants alleged to have taken part in the examination thereof. The testimony on the part of the assistant (the only one who testified to such examination) was that he found nothing wrong with the spools. The testimony was affirmative that the valve worked normally for hours before the accident and that it worked normally immediately after the accident, and without repair.

The trial court instructed the jury that the circumstance of the rising of the elevator as shown would permit an inference of negligence upon the part of defendant, and throw upon defendant the burden of showing that it was in the exercise of ordinary care. It was held by this court that under the circumstances appearing in the record the doctrine of res ipsa loquitur did not apply; that the burden was upon the plaintiff to show that the sudden and single erratic upward movement of the elevator was due to a defect in the mechanism which was known, or should have been known, to defendant, and which it had neglected to repair; that there was no evidence justifying an inference that the movement of the elevator was due to a defective valve and that such defect was known, or might have been known, by ordinary care in inspection; but that under the evidence the cause of the accident was wrapped in doubt and mystery, the indications pointing strongly to a premature movement of the lever by the servant who had charge of the operation of the lever. Judgment was reversed and a new trial ordered.

Upon the second trial the defendant introduced no testimony. The testimony presented by the plaintiff was uncontradicted that a sudden rise of the elevator, such as shown in the evidence could have occurred only through either a manipulation of the lever or a working loose of the spools; that when the valves were in normal condition, they would hold the elevator stationary when the lever was at center, and that an automatic rising of the elevator would be impossible when the lever was either at center or at 'extreme reverse.' The only workmen who, so far as the evidence shows, could have touched the lever testified, without contradiction, that it had not been touched by them since it was last sent down five minutes before the accident. This testimony was more complete than that offered on the former trial. The testimony was also express and uncontradicted that, by reason of the alleged varying pressure of the water under ordinary circumstances, a loose working of the spools would have a tendency to cause the elevator to rise suddenly in the same manner it is testified to have risen at the time of the accident. There was no evidence of an inspection or testing of the valves on the morning of the accident, nor of the renewal of the leathers thereof, nor of the condition of the valves at that time, nor that the latter worked normally immediately after the accident. The testimony of the reported working loose of the spools at 6 p.m. (two hours before the accident) was undisputed. The testimony of the assistant millwright, Seaborn, tended to show that nothing was done by way of attempting to correct the reported looseness except to grease the spools, and that these spools were, after being greased, put back and the water turned on, and a call given to the operator above that the elevator was ready for use. There is no testimony as to the actual condition of the spools at 6 o'clock, except that Seaborn-- who says it was not his duty to examine the spools--states that he saw nothing wrong with them. There is no affirmative testimony indicating that any examination of the leathers was had. The testimony of an expert, Popovich, was to the effect that greasing the spools would have no tendency to overcome their loose-working, as the great pressure of the water when turned on (600 to 750 pounds to the square inch) would immediately cut off the grease; that a test by listening was necessary after the spools were replaced to determine whether they worked loosely. Seaborn testified that no test was made after the spools were put back to determine whether they were still loose. The plaintiff introduced the uncontradicted testimony of one Harrof, the operator in charge of the elevator in question, by day and night turns, 'week about,' for about three months before the accident, to the effect that for two or three months before the accident the machine was in such defective condition that even when the elevator was down and the lever in 'extreme reverse' (as when the elevator was being lowered), the elevator would not always stay down; that on three occasions within the two or three months next preceding the accident, when the lever was so at 'extreme reverse,' the elevator, without warning and without it or the lever being touched, jumped up suddenly and rapidly for a distance of two feet or more, the lever flying back past the center; that one of these occasions was about two or three months before the accident, another two weeks later than the first, and the third but a short time before the accident. The witness further testified that during these two or three months before the accident he had when on duty, for the purpose of preventing the sudden rising of the elevator, been in the habit, on his own motion and on his own sole authority, of tying the lever to the railing which went around the shaft by means of a rope which he got for himself; that he was not 'supposed' to use a rope, and that no other precaution was provided for preventing the rising of the elevator; that on three occasions previous to the accident, and within two or three months immediately preceding it, this rope had caught fire through sparks from the mixer or converter and had been burned off, and that Harrof had each time supplied its place by a new rope. Harrof was not on duty at the time of the accident. No rope was in use at or for several hours before the accident. The testimony of the witness Harrof was not introduced on the former trial. The testimony as to plaintiff's ignorance that the elevator was subject to such sudden rise, or that the machinery was in any way defective or out of repair, as well as of his freedom from negligence, is undisputed. The trial court directed a verdict for defendant.

Charles Koonce, for plaintiff in error.

C. A. Manchester, for defendant in error.

Before SEVERENS and RICHARDS, Circuit Judges, and KNAPPEN, District judge.

KNAPPEN District Judge (after stating the facts as above).

If the evidence of the operators of the lever, to the effect that it had not been touched since the elevator was lowered five minutes before the accident and the lever then left at extreme reverse, is to be believed, any inference that the sudden starting was due to a premature movement of the lever on the part of the operator, and thus through the negligence of plaintiff's fellow servant, was excluded. If the testimony of the expert Popovich is likewise to be...