Carnegie Steel Co. v. Byers

• Decision Date: 08 January 1907
• Docket Number: 1,573.
• Citation: 149 F. 667
• Parties: CARNEGIE STEEL CO. v. BYERS.
• Court: U.S. Court of Appeals — Sixth Circuit

149 F. 667

CARNEGIE STEEL CO. v. BYERS.

No. 1,573.

United States Court of Appeals, Sixth Circuit.

January 8, 1907

C. A Manchester, for plaintiff in error.

Charles Koonce, Jr., for defendant in error.

Before LURTON, SEVERENS and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

An action in tort for personal injury sustained by the plaintiff while in the service of the Carnegie Steel Company. There was a jury, and verdict for the plaintiff and judgment thereon.

The question upon which the case must mainly turn is whether there was any evidence from which the jury might reasonably find the plaintiff in error negligent. This question was saved by a motion, at the close of all the evidence, to instruct a verdict for the defendant below, and an exception reserved. The facts necessary to be stated are these: The defendant below is a steel manufacturing company. The plaintiff was an employe engaged about the mixer house in the operation of an electric locomotive. Cars, consisting practically, of great metal ladles, set on wheels, were used for carrying molten iron from the furnaces to the mixer house for further steps in its conversion into steel. These ladle cars were pulled from the furnaces, over railway tracks, to the mixer house by a steam engine. There it was the business of plaintiff to take one such ladle car at a time and pull it on to the platform of an elevator, sometimes called a 'jack,' which platform was crossed by tracks connecting with the permanent way from the furnaces. When such a ladle car filled with molten metal was properly set upon the platform of the 'jack,' the elevator, upon a signal, would raise it up to an upper floor, where its contents would be emptied and the car lowered in same manner and returned to the furnaces. This elevator was operated by hydraulic pressure; the admission of water being regulated by valves controlled by a lever upon the top floor, under the management of a fellow servant, whose business it was to raise or lower the elevator as needed. These valves were of a standard kind, known as the 'Aiken Valve.' When in normal condition, the full pressure of water would raise the loaded platform slowly and with a steady motion. The plaintiff's petition states that on October 27th, about 8 p.m., it became necessary for him, in the performance of his duty, to move his electrical locomotive across this elevator platform, it being at rest and that while doing so the platform, suddenly and with great force, and a jerky motion, rapidly arose from its position for some eight feet, thereby causing the front part of said locomotive to be raised with said jack, while the rear part was still upon the main track, whereby the said car was so tilted as to throw him with great force from his position in said locomotive, causing a severe injury. This result must have been a consequence of the operation of the lever controlling the power which operates the elevator, or of some defect in the valves by which water was admitted without the intentional movement of the lever opening and closing the valves. Confessedly, if the movement was due to the negligence of the employe in control of the lever, there would be no responsibility to the plaintiff, for it would be an injury due to the fault of a fellow servant. There was no evidence directly tending to show that the servant so in control of the lever had made any untimely movement. Indeed, he testified that at the time of the accident he was upon an errand in another part of the room, having left his lever at rest upon a center. Neither is there the slightest evidence of any defect in the lever, and no evidence tending to show that it might move automatically.

The specific negligence averred, and to which all of the evidence was directed, was that there was a defective valve, whereby water was permitted to pass through it, under pressure, in sufficient quantity to force the elevator up, and that the Carnegie Company had knowledge of such defective valve, or should have had knowledge if they had used due care in inspecting this elevator and its valves. Concerning the possibility that the lever above had been inadvertently or negligently handled, the circuit judge said to the jury that there was 'no direct evidence' of such manipulation, though he very properly added that 'the inference could be drawn from all the circumstances that it was in that way that the jack had been put in motion. ' In respect to the alleged defective valve, the court said:

'If from all the evidence in the case you are satisfied, by a preponderance of the evidence, that the cause of the elevation of the jack, resulting in the injury, was some defective condition of the valve, whereby water was permitted to pass through it under pressure, and that it was not caused by any movement originating in the lever on the third floor, then I say to you that the fact that the water did so enter the valves and in consequence of this the jack rose * * * will permit an inference of negligence on the part of the defendant; that is to say, the circumstances of the jack rising under these conditions would itself speak, as the law puts it, and amount to primary proof of negligence on the part of the defendant.'

Recurring to this, the learned judge later said:

'You are not permitted to guess or speculate as to the cause of the accident. The burden, as I said, is upon the plaintiff to show, by a preponderance of the evidence, what its cause was; but, if the plaintiff has shown such a condition of things as I have just referred to, then that shifts the burden to the defendant of showing, by a preponderance of the proof, that it was in the exercise of ordinary care.'

We shall not stop to consider the objections to this charge based upon the fact that the plaintiff was an employe, and that, as between servant and master, there is no presumption of negligence from the mere proof of the happening of this accident. In such a suit it is not enough to show that there was a defective tool or machine and that the injury was due to such defect. The servant must go further, and show that the defect was known to the master for a sufficient time to have enabled him to repair, or should have been known, if there had been due inspection according to the ordinary course of prudent employers. Texas & Pacific Ry. Co. v. Barrett, 166 U.S. 617, 17 Sup.Ct. 707, 41 L.Ed. 1136; Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Illinois Cent. Railroad Co. v. Coughlin, 132 F. 801, 802, 65 C.C.A. 101. In Cincinnati, etc., Ry. Co. v. South Fork Coal Co., 139 F. 528, 71 C.C.A. 316, 1 L.R.A.(N.S.) 533, we gave elaborate consideration to the circumstances under which the fact of negligence may be inferred from the nature of an accident, and noted the distinctions to be observed in applying the rule of res ipsa loquitur in suits between employers and servants and those in which liability to passengers or strangers is involved. It was not enough to show that this accident had occurred through an erratic and unexplainable rising of the elevator. That might have made a prima facie case of negligence in favor of a passenger or stranger; but the plaintiff was an employe, and the burden was upon him to show that this sudden erratic upward movement was due to some defect in the mechanism which was known, or should have been known, to the Carnegie Company, and which they had neglected to repair. The distinction referred to is pointed out in the cases cited above. The pinch of the case was, not only whether the plaintiff had shown a defective valve which might have produced such an unexpected and rapid movement as that described by the plaintiff, but also whether the defect was known or might have been known if ordinary care had been exercised.

The court denied a request to instruct a verdict for the defendant evidently upon the theory that there was evidence from which the jury might infer that the trouble was due to a defective valve, and that, if they found that to be so, the burden would shift to the defendant to show that the defect was not known or discernible by ordinary care. We find ourselves unable to discover evidence upon which a jury might reasonably ascribe plaintiff's injury to a defective valve. For this reason, it was error to refuse the instruction to find for the plaintiff in error. The plaintiff's pleading averred that the negligence of the defendant consisted in having 'negligently omitted to repair the spools of said jack and the parts thereto belonging, including the leathers thereof, and permitted same to become so worn and out of repair that they did not operate in the manner for which they were intended and as a result...