Cash v. Casey-Hedges Co.

• Decision Date: 16 February 1918
• Citation: 201 S.W. 347
• Parties: CASH v. CASEY-HEDGES CO. et al.
• Court: Tennessee Supreme Court

Page 347

201 S.W. 347

CASH v. CASEY-HEDGES CO. et al.

Supreme Court of Tennessee.

February 16, 1918.

Certiorari to Court of Civil Appeals.

Action by J. A. Cash, administrator of G. W. Cash, deceased, against the Casey-Hedges Company and others. Judgment for defendants, and plaintiff appealed to the Court of Civil Appeals, where judgment was affirmed as to defendant Lenoir City and reversed as to other defendants. Plaintiff and named defendant and defendant J. B. McCrary Company bring certiorari. Affirmed.

Penland & Ogle, of Knoxville, and J. E. Cassady, of Loudon, for J. A. Cash. Breazeale & Breazeale, of Lenoir City, and Webb & Baker, of Knoxville, for Lenoir City. Sizer, Chambliss & Chambliss, of Chattanooga, for Casey-Hedges Co. Chas. H. Smith and Chas. T. Cates, Jr., both of Knoxville, for J. B. McCrary Co.

FENTRESS, J.

This action was brought by the administrator of G. W. Cash, who was fatally injured by the fall of a smokestack, against Casey-Hedges Company, J. B. McCrary Company and the town of Lenoir City to recover damages for the alleged negligent killing of the intestate. At the close of the plaintiff's evidence the trial judge directed the jury to find a verdict for all the defendants and the plaintiff appealed to the Court of Civil Appeals, where the judgment was affirmed as to Lenoir City and reversed as to the other defendants.

The town of Lenoir City contemplated the erection of a water and sewerage system and employed the J. B. McCrary Company to act as engineers and to superintend the construction of same for which it was to have been paid a percentage of the cost. The municipality also entered into a contract with the Casey-Hedges Company whereby the latter agreed to furnish and erect for it two boilers and a smokestack. After the work had progressed to some extent the contract between Lenoir City and McCrary Company was changed so that the latter undertook to complete the then unfinished portion of the improvements. However, the McCrary Company did not, in any respect, control the manner in which the Casey-Hedges Company did its part of the work.

On the day he was killed the deceased was employed as a brick mason by the McCrary Company, under its foreman Wilson, in building a wall around the two boilers which had theretofore been erected by the Casey-Hedges Company. At about 25 feet from the place where Cash was laying brick, the Casey-Hedges Company, through its foreman Hannah and his laborers, was endeavoring to erect, upon a foundation constructed for the purpose, a smokestack 60 feet long and 4 feet in diameter, the weight of which was approximately 4,000 pounds.

At the time of the accident Hannah and his men were elevating the smokestack to a vertical position, by means of what is called in the record a "gin pole," to which was attached a pulley, through which ran a rope and at the end of the rope there was an iron or steel hook. A rope had been tied around the stack and to this rope the hook was attached, and it was proposed to lift the smokestack from the ground by pulling upon these ropes. It is stated in the record that by reason of the fact that the gin pole was too short, it was necessary to place the rope, which went around the stack, between the middle and the lower end of the stack. In order to keep the upper end of the stack from overbalancing the lower end, the center of gravity being below the middle of the stack, iron doors and beams, weighing about 1,000 pounds, were attached to the lower end of the stack, making its entire weight, with attachments, about 5,000 pounds.

Cash was employed that morning 1 hour and 20 minutes before the accident occurred which resulted in his death. When he went to the place to go to work, one end of the smokestack was on the ground and the other was on an elevation 10 or 12 feet high. He observed what was contemplated to be done and remarked to one Long, another bricklayer, that it looked "a little risky." "I reckon they know their business or we would not be here working." The proof shows that perhaps an hour after this, Hannah, the foreman of Casey-Hedges Company, in speaking to his crew, said: "Look out, boys; there is no telling what might happen." The record does not show that Cash heard this warning, nor does it appear that Hannah notified him otherwise of the danger. However, about 20 minutes before the stack fell, and perhaps when most of the weight of the stack was upon the equipment, Cash became apprehensive, and stated to Wilson, the foreman of his employer, that he thought what was being done was dangerous. Evidently the situation justified apprehension, as one of the witnesses in the record testified that he had gone to the place for the purpose of obtaining employment, but, when he saw the situation, he did not ask for a job because he thought the place was dangerous. In response to the statement of Cash that he thought what was being done was dangerous, Wilson replied that it was safe and thereupon Cash resumed his work.

About 20 minutes after this conversation occurred the stack fell, inflicting injuries upon Cash from which he died. The fall was caused by the breaking of the hook. An inspection of the hook, after the fall, showed that there was an old defect in it. It is improbable, however, that it would have held the weight put upon it if it had not been defective, as one of the witnesses, having some knowledge of such matters, testified that it was one inch in diameter and that the capacity of such hooks was 2,000 pounds.

The plaintiff has filed a petition for certiorari and assigns error to the action of the Court of Civil Appeals in affirming the judgment as to Lenoir City; and J. B. McCrary Company and Casey-Hedges Company have likewise filed petitions for certiorari and assigned error to the action of the Court of Civil Appeals in reversing the judgment of the circuit court as to them. All of the petitions were granted and the case was argued in this court.

As to Lenoir City we think the suit should have been dismissed.

We cannot say that the erection of smokestacks, similar to the one in this case, is necessarily dangerous when done with care by persons who have skill in such matters, and the record does not show that the municipality knew Casey-Hedges Company was incompetent or that it controlled the methods or appliances adopted by the latter in performing the work. McHarge v. Newcomer, 117 Tenn. 595, 100 S. W. 700, 9 L. R. A. (N. S.) 298; Davis v. Lumber Co., 126 Tenn. 576, 150 S. W. 545; Powell v. Construction Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925.

As to Casey-Hedges Company it is quite plain that it was under the duty of warning every person sufficiently near to the stack to be struck in the event it fell. In 29 Cyc. 474, it is said:

"Where one is performing some act which is likely to be dangerous to persons in the vicinity, it is his duty to warn such persons of the danger;" furthermore, the "notice must be sufficient to apprise the persons notified of the danger."

The danger of the collapse of the stack increased as it was elevated. The fact that Hannah, the foreman of this defendant, told his crew to be on the lookout, as he did not know what might happen, shows that he feared the smokestack might fall. He knew that Cash was engaged in laying brick and not in a position to observe what was being done.

If it be admitted that the deceased was guilty of contributory negligence in working in a position which had the appearance of danger, still this will not excuse the defendant from liability where it constantly increased his peril, knowing that the deceased did not appreciate the danger and was not in a position to avert the accident and its consequent injury. Such conduct is mildly characterized as gross negligence; it is rather willfulness or wantonness. What was said by this court in Railroad v. Roe, 118 Tenn. 611, 102 S. W. 343, is so apt here that we quote at some length from the opinion:

"In Railroad v. Pugh, 97 Tenn. 627, 37 S. W. 555, this was said: `The rule at common law and in this state still is that any contribution to any injury which directly produced it would bar the action in any case where statutory provisions to the contrary do not apply.' * * *

"This rule is entirely consistent with that other, under which a party will not be `excused from liability for an injury which he inflicts on another on the ground of the earlier negligence of the latter, when, aware of the latter's exposure to peril, he omits ordinary and reasonable care to avoid the injury. When the observance of this care would have prevented the hurt, failure in that regard is actionable wrong. It is so, not only because such negligence is the proximate occasion to the injury, but for the stronger reason that it indicates wantonness, and for this the law affords no excuse.' Railroad v. Williford, supra [115 Tenn. 122, 88 S. W. 178]; Whirley v. Whiteman, supra . In the first one of the cases last cited this court quoted with approval from an opinion of the Supreme Court of Alabama, in Ga. Pacific R. Co. v. Lee, 9 South. 233, 92 Ala. 270, as to the failure of a defendant to make an effort to avoid an injury which he sees is imminent to the party who has been guilty of some negligence in placing himself in a perilous position, as follows: `Such failure, with such knowledge of the situation and the probable consequences, and omission to act upon the dictates of prudence and diligence to the end of neutralizing plaintiff's fault and avoiding disaster, notwithstanding his lack of care, is, strictly speaking, not negligence at all; but it is more than any degree of negligence, inattention, or inadvertence. It is that recklessness or wantonness, or worse, which implies willingness to inflict the impending injury, or willfulness in pursuing a course of conduct which will naturally or probably result in disaster, or an intent to perpetrate a wrong.'

"Judge Cooley, in the work already referred to, ...