Colorado Fuel & Iron Co. v. Cummings

• Decision Date: 09 November 1896
• Parties: COLORADO FUEL & IRON CO. v. CUMMINGS.
• Court: Colorado Court of Appeals

46 P. 875

8 Colo.App. 541

COLORADO FUEL & IRON CO. v. CUMMINGS.

Court of Appeals of Colorado

November 9, 1896

Appeal from district court, Pueblo county.

Action by Richard Cummings against the Colorado Fuel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed.

John M. Waldron and D.C. Beaman, for appellant.

Arrington & McAliney, for appellee.

BISSELL J.

This is an action for personal injuries. In September, 1892, the appellant, the Colorado Fuel & Iron Company, was operating a rolling mill in Pueblo, wherein Cummings, the appellee, was employed, and at which he was injured on the 30th of the month. It is exceedingly difficult, if not impossible without the aid of the photographs which were furnished the court, to describe to one who is unfamiliar with a steel mill the exact situation of the circumstances under which the appellee was hurt. With this limitation the case will be stated.

Located at one end of the mill, or at a point somewhat remote from the roller, is a soaking pit, from which steel ingots 5 or 6 feet long, and weighing some 2,800 to 3,400 pounds, are taken and run on a tramway of rolls to the table of the machine, which is called a "roller," and by which the ingot is rolled through a various set of rolls of progressive sizes, until it has been greatly lengthened, and, from being square, has become a long, flat piece of steel. The rolls are fastened in a frame, beneath which is a table on which the ingot rests. The table receives its motion through a system of cog wheels, and the bed of it consists of rolls which carry the ingot forward underneath the rolls themselves; and the joint action of the rolls proper, as well as those of the table, carry the ingot through the machine. It is then brought back to its former position, under that or another roll further along in the machine. There seem to be two sources of power, the motion of the cogs being furnished by an engine, and the upward pressure of the table by an independent hydraulic machine. It is unimportant in what form the power is provided. At all events, the table is raised and lowered by hydraulic power and, when it first receives the ingot, it is substantially level with the floor of the mill, and raised several feet therefrom, when the ingot is to be subjected to pressure and the action of the rolls. The framework of the machine is called its housing. Along the side of the table there is a steel guard, bolted onto it, which prevents the ingot from sliding off, and which projects quite a distance above the common level of the rolls, though it is fixed at the edge of the table, and within the inner line of the cogs themselves. The machinery is under the direction and control of the "leverman" or "motorman," as he is indiscriminately called. He stands at a lever in the rear of the machine, which controls the hydraulic power, and he also manages the steam power which otherwise runs and operates the roller. The helper's station is near the framework of the machine. Ordinarily, he is out of sight of the motorman under whose direction he is while he is discharging his duties. These seem to be to keep the ingot in place, to see that it enters the rolls properly, and to keep the machinery free from the flakes or scales which are constantly made and put off from the ingot as it is subjected to pressure. These scales, of course, fall directly under the rolls, and gather about what is called a "shoe" inside the housings, and along the framework or platform below which sustains the weight of the machine when it is lowered. Above the rolls there is a pipe which discharges water onto them when they are in motion, to preserve a uniform temperature, and prevent them from getting exceedingly hot. The water is discharged from the pipe through a valve, which is opened or closed by the helper, either as directed by the motorman according to the defendant's testimony, or, as the appellee says, as he may judge the situation to require it. There is considerable controversy in regard to the way in which the mill is lighted up, and as to a necessity for the electric light which is sometimes used, and which was charged by the plaintiff to be out of order, and the occasion of his accident. Some year or more prior to the accident, the company had put in an electrical plant, and had an electric light near the soaking pit, and some distance from the roller where Cummings was working. The works had been operated for many years without artificial light, other than what was furnished by torches. The light which always came from the furnaces when they were in operation, and that furnished by the ingot, so lighted the vicinity, according to the testimony of one of the witnesses, that you could see to pick up anything 10 or 12 feet away from the roller. The witnesses differ as to the condition of the electric light at the time of the happening of the accident. The plaintiff asserted it went out, and others that it burnt brightly. The conclusions of the jury were probably with the plaintiff. According to the general testimony, the electrical plant had been for many months in a bad condition. The light went out frequently, sometimes every few minutes, and sometimes some six or eight or a dozen times in the course of a night. The plaintiff had been working there during all this time, and had full knowledge of the condition of the plant in this respect. According to Cummings' story, they had run three ingots through the roller prior to the accident. This made what he called a "heat." After a heat, the roller would usually remain idle for 15 minutes or more. According to his story, he discovered the water was not running freely through the valve, and he stepped with his left foot onto the guard, grasped a rod with his hand, and started to raise his right foot to place it on the guard, whereby he could reach the valve, and open it, when the machinery suddenly started. Because of the extinguishment of the light, he was unable to see where he put his right foot, and it was caught by the cogs, his big toe cut off, and the foot otherwise mashed, which necessitated its amputation between the toes and the instep. He charges the accident was caused by the extinguishment of the light, which rendered it impossible for him to see. Witnesses differ respecting the condition under those circumstances; those for the defense testifying that the light from the furnaces, which were running, although the doors were more or less closed, and from the heated bars and ingots which were either on the shears table or at the pit, furnished light enough to enable anybody to do their work without the aid of an electric light. A good many witnesses testified work had been done for years without any other aid than light coming from these sources.

The plaintiff's knowledge of the defective condition of the electrical plant is conceded. To escape the force of that knowledge, he testified to a conversation with Mr. Ellsworth, whom he termed the "electrician," which, in substance, was that he met Ellsworth when on his way to work that night, and asked him how the lights were. Ellsworth's response was that they were all right, and, if he made as much tonnage as the lights would show him, he was all right. The plaintiff stated he relied on this statement, and believed that the lights would be satisfactory. He makes no attempt to show a complaint on his part, and a promise on the part of the corporation to remedy the difficulty. According to Cummings' own story, he got on the frame to regulate the valve, without any order from the motorman, and without informing him in any way that he intended to do that particular act. The defendant's witnesses testified substantially that the helper was under no obligation to attend to the water except on direction of the motorman. Whether this be or be not true, it is uncontradicted that he should not have proceeded to step on the machine to adjust the valve without informing the motorman of his intention. If he proceeded otherwise, he did it at the peril of his life, for the motorman took no notice whatever of the helper in running the machine, except as he might be informed by the helper of his purpose to do some particular thing which required the machinery not to run. The plaintiff states he got no order, and that he did not communicate with the motorman, and indicate his purpose to adjust the valve. The injury, according to Cummings' story, came from the starting of the machinery while he was doing this act. The cogs ran with great rapidity, from 100 to 300 revolutions a minute, and, of course, the plaintiff was in very great danger when he stepped onto the framework of the table if the machinery started up. The theory of the defense was--and there was testimony which tended that way--that he was kicking scales out from under the cogs, and that, when the table was lowered, it caught his foot. We are not concerned what the fact may be, because it is on other bases that the cause must be reversed.

One of the principal contentions of the appellant is that there is a variance, pronounced, irreconcilable, and fatal, between the allegations of the complaint and the proof which the plaintiff offered. It is insisted that, ever under our Code there has been no such wide departure from the rules by which parties are governed as to permit the plaintiff to allege one state of facts as his cause of action, and recover on proof of another. As a general proposition, this is undoubtedly true, though the old rule is not so strictly enforced under our Code as it was at the common law...