Chobanian v. Washburn Wire Co.

• Citation: 33 R.I. 289,80 A. 394
• Parties: CHOBANIAN v. WASHBURN WIRE CO.
• Decision Date: 14 July 1911
• Court: Rhode Island Supreme Court

80 A. 394

33 R.I. 289

CHOBANIAN

v. WASHBURN WIRE CO.

Supreme Court of Rhode Island.

July 14, 1911.

Blodgett, J., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge.

Action by Ohannes Chobanian against the Washburn Wire Company for personal injuries. Judgment for plaintiff, and defendant excepts. Exceptions overruled, and case remitted, with directions.

Francis I. McCanna and Barney & Lee, for plaintiff.

C. M. Van Slyck and Frederick A. Jones, for defendant.

JOHNSON, J. This is an action brought to recover damages, as appears in the writ, dated August 2, A. D. 1906, and returnable to the superior court, Providence county, September 11, A. D. 1906, for personal injuries sustained by the plaintiff while m the employ of defendant on the 20th day of April, A. D. 1905, through the negligence of said defendant.

The plaintiff, Ohanues Chobanian, was injured about 2 a. m. on the 20th day of April, A. D. 1905, at the plant of the defendant, in Phillipsdale, R. I., where he was employed. He was about 30 years of age at the time, and had been in this country about three years. Plaintiff entered the employ of defendant a few months after he came to this country, as a yardman, and, after working for said defendant about seven or eight months, left to take a position elsewhere. After being away about a year, he returned to work for the defendant, and was in its employ about a year when he received the injuries herein referred to.

At the time he was injured, he was working in a pit, in what is called the "open hearth" room, in defendant's steel plant, and was inexperienced in that kind of work. This is a long, large, rectangular-shaped building with earthen floors, and contains two earthen pits in which cast-iron ingot molds are set to receive pourings of steel from the furnaces, which are located just south of and above the pits. These two pits are known as pit No. 1 and pit No. 2. The plaintiff was injured while at work in pit No. 2.

In the bottom of the pit, resting upon the dirt, were round iron plates, upon which the molds were set when lowered into the pit for the pouring. There were four plates in a row, extending widthwise of the pit. The molds used were about five feet in height, and weighed about 1,950 pounds each. The mold in its construction tapered from top to bottom; the top being larger than the bottom. When set on the plate in the pit, it rested upon its smaller end; the upper end coming slightly above the top of the pit. Each mold had two trunnions on opposite sides, located about one-third the way down from the top. When the steel was ready for a pouring, the bottom, or smaller end, of the mold was closed by inserting a sort of square-shaped clay brick into it, and wedging it in, if too small, with wooden wedges, which were put in between the mold and the brick.

About 35 feet above the pit was located a traveling crane, from which, by means of chains or falls, two hooks were suspended. The crane operator, whose name was August Johnson, was located in the crane basket, which was connected with the traveling part of the crane. These hooks, which were made by the defendant in its blacksmith shop, were open hooks, and grasped the mold by the trunnions and swung it into the air and over into the pit, where it was to be set.

The pit gang consisted of five men. The names of these men were Charles J. Johnson, the subforeman, Victor Benson, Gustave Anderson, Harry Leary, and Ohannes Chobanian. This was the usual number that comprised the pit gang, and each man received the same amount of pay. Two men who had worked in the pit gang had left shortly before Chobanian was injured, and Leary and Chobanian, who theretofore had been working outside as yardmen, were sent in to take their places, in order to bring the pit gang up to the regular number of five. The work of these men was to set molds, put bottoms in molds, clean the pit, and work of that character, and each man took his turn.

Plaintiff was in the pit, setting ingot molds preparatory to the pouring, when injured. The work of the person setting was to stand in the bottom of the pit and guide the mold as it was lowered into the pit by the craneman, so that it would rest properly in its place upon the iron plate in the bottom of the pit. The molds that were being lowered into the pit to the plaintiff had passed through a heating that night, and plaintiff used bagging to protect his hands when placing the molds in position. He had set five molds and was setting the sixth one, which would be the second mold in the second row, when he was injured. The craneman had lowered this sixth mold, and when it rested upon the plate the trunnions upon that mold were not in line with the trunnions upon the mold next to it. The plaintiff signaled the craneman to raise the mold a little, so as to align it. The craneman then raised the mold, and when he lowered it the second time the brick was out of the bottom of the mold upon the plate, the mold struck upon the brick, the hooks came off the trunnions, and the mold toppled over upon the plaintiff, who was between the mold and the side of the pit, and the upper end of the mold fell upon plaintiff's right arm and pinioned it against the side of the pit. The weight of the mold crushed the arm, and the heat of the mold burned the arm to the bone, before the mold could be removed. As the hooks had come off the trunnions when the mold fell over, the craneman was powerless to handle the mold, or to move it from off the plaintiff's arm, until two of the other pitmen jumped into the pit and affixed the hooks to the trunnions, and the mold was then removed from the plaintiff's arm. The plaintiff was taken to the Rhode Island Hospital, where his arm was amputated that day.

The case was tried before Mr. Justice Rathbun and a jury in the superior court, on the 29th day of April and the 2d, 3d, and 4th days of May, 1910. The jury returned a verdict for the plaintiff for $11,916.

On the 9th day of May, 1910, the defendant filed its motion for a new trial, on the following grounds: (1) That said verdict was against the evidence and the weight thereof. (2) That the damages assessed were excessive. Said motion for a new trial was heard by the said justice on the 25th day of June, 1910, and was argued by counsel for plaintiff and defendant, and on the 17th day of September, 1910, was denied. Thereupon the defendant filed its bill of exceptions, which sets forth exceptions to the rulings of the superior court in the following particulars: (1) Overruling the demurrers of defendant to plaintiff's amended declaration. (2) Denying the motion of defendant to strike out the additional counts to plaintiff's declaration. (3) Admissions of testimony. (4) Refusals to rule and charge, as requested by defendant. (5) Decision denying defendant's motion for new trial.

The amended declaration is in eight counts, which may be stated as follows: The first count alleges that the plaintiff was in the employ of the defendant as a common laborer, in a certain room, to wit, a factory of the defendant at East Providence, and in the course of said employment and at the request of the defendant was working near a certain steel mold, which was attached to an overhead truck by means of wire cables, and which was lowered by said defendant and placed in an upright position on the floor of said room, and while the plaintiff was so engaged and exercising reasonable care and without any fault of the plaintiff, the said mold fell from its upright position on the floor of said room near where the plaintiff was working, as aforesaid, the cause of which fall was to the plaintiff unknown, which fall the plaintiff had no cause or reason to anticipate, or prevent; but which fall was caused by some defect in said mold or in the supports to or connections with the same, of which the defendant knew, or but for the want of reasonable care and diligence would have known, which defect was caused by the negligence of the defendant, and by reason of said fall said mold was violently forced and thrown upon the plaintiff, and by means thereof he was injured. The second count is practically the same as the first. The third count alleges an insecure brick base in connection with the mold, which became loose and fell out of the mold, causing the mold to fall. The fourth count alleges an insecure brick bottom placed in the mold by means of certain wedges, so that the bottom became liable to fall out when the mold was being lowered, and cause the mold to fall over. The fifth count alleges negligence in fastening the crane to the mold by hooks, whereby the crane was enabled to become prematurely unfastened from the mold, permitting the mold to fall over while being lowered. The sixth count alleges negligence in using hooks in connection with the crane. The seventh count alleges failure to warn plaintiff, who was inexperienced, of the dangers and risks of his employment in connection with the molds, setting forth said dangers and the knowledge of the defendant and the ignorance of the plaintiff relative thereto. The eighth count alleges the failure to provide plaintiff with a safe place in which to perform his work, setting forth the ignorance of the plaintiff and the knowledge of the defendant as to the same.

The defendant's demurrers, heard by Presiding Justice Sweetland, were argued by counsel and were overruled as to all counts, except the sixth count. The rescript is as follows: "Sweetland, P. J. The declaration sufficiently alleges the work the plaintiff was engaged in at the time of receiving the alleged injury. The different counts of the declaration, excepting the sixth, sufficiently allege negligence in the defendant and set out the defendant's negligence with as much particularity as should be required of the plaintiff in the circumstances alleged. The court cannot say, as a matter of law, from the allegations of the...