Drew v. Western Steel Car & Foundry Co.

• Decision Date: 29 November 1911
• Citation: 174 Ala. 616,56 So. 995
• Parties: DREW v. WESTERN STEEL CAR & FOUNDRY CO.
• Court: Alabama Supreme Court

56 So. 995

174 Ala. 616

DREW v. WESTERN STEEL CAR & FOUNDRY CO.

Supreme Court of Alabama

November 29, 1911

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by Arthur Drew against the Western Steel Car & Foundry Company. Judgment for defendant, and plaintiff appeals. Affirmed.

McClellan and Somerville, JJ., dissenting.

Niel P Sterne and Tate & Walker, for appellant.

Willett & Willett, for appellee.

SOMERVILLE J.

Plaintiff sued to recover for personal injuries, and the case was submitted on the following agreed statement of facts, which was all the evidence:

"On the 15th day of March, 1909, plaintiff was an employé of defendant. While engaged in the regular course of his employment, he sustained injuries by ammonia gas escaping from an ammonia tank, which was being broken by the steam hammer of defendant. Plaintiff's injuries confined him to his bed and incapacitated him from working for three weeks, weakened his eyesight, and caused him to be short-winded. This ammonia tank had been taken from a pile of scrap iron on defendant's yard, and the ammonia tank and scrap iron had been on defendant's yard for about two years. That defendant was in the habit of purchasing for its rolling mill large quantities of scrap iron, and had purchased this ammonia tank as scrap iron, together with a lot of other scrap iron, and it had been in the scrap pile on defendant's yard, as stated, for something over two years; that the defendant had just before this accident broken up as scrap iron several other ammonia tanks similar to the one which injured plaintiff and found nothing in them and nothing wrong with the same.

"The tank in question was a 9-inch tank about 6 1/2 feet long, and was charged with ammonia gas, a substance dangerous when allowed to escape. It was not known, however, to defendant, or any of its agents or employés that it was charged with ammonia gas or any other substance. No inspection had been made of it; nor had any inspection been made of the other ammonia tanks which had been broken up as scrap iron. The ammonia tank in question had been taken from the scrap pile and placed on the steam-hammer anvil by order of Lee Coker, who was intrusted with superintendence in that respect by the defendant. The employés started to mash or break up this ammonia tank into scrap iron in the usual manner, by placing one end on the steam-hammer anvil, with the other end resting on the sawhorse. The men who placed the tank on the sawhorse and anvil stepped back to get out of the range of the flying particles of iron, and the man operating the steam hammer struck the tank a light blow with the hammer. There was no noticeable effect from the blow, except a slight flattening of the end of the tank, but when the hammer was raised the ammonia or gas gushed out, shooting the tank out from under the anvil and around in a semicircle to a point about 30 feet from the hammer, and on the opposite side from that on which it was resting when struck. The ammonia was scattered during the flight of the tank, and plaintiff was injured as a result of the escaping ammonia from the tank. The tank in question and others which were broken up were of the kind in which ammonia gas is ordinarily kept, although they were all purchased by defendant as scrap iron, to be used as scrap iron, and had been put in the scrap-iron pile on defendant's yards."

The complaint formulates the charges of negligence on the part of the defendant, through its superintendent in charge of the work, in the following terms: "(A) He ordered the plaintiff and others to put said ammonia tank on said hammer, to be broken thereby, when he knew, or ought to have known, that the said tank was dangerous and liable to explode or emit dangerous chemicals or gaseous substances when struck by said hammer. (B) He negligently had said tank placed on said hammer, to be broken thereby, without informing himself as to whether or not the same was liable to explode or emit dangerous chemicals or gaseous substances when struck by said hammer. (C) He negligently had said ammonia tank placed on said hammer, to be broken thereby, when the same was dangerous and liable to explode or emit dangerous chemicals or gaseous substances on being struck, of which dangerous nature of said tank the said Lee Coker knew, or ought to have known, of the same by the exercise of reasonable diligence. (D) He negligently ordered said ammonia tank to be placed on said hammer, to be mashed thereby, and negligently failed to examine the same, and to ascertain whether or not it was charged and liable to explode or emit dangerous chemicals or gaseous substances on being struck. (E) He negligently had said ammonia tank placed on said hammer, and the same struck by said hammer, when he knew, or ought to have known, that the said tank was likely charged with ammonia or other highly explosive substance, and that the striking of the same with the said hammer would likely injure those close by. (F) He negligently had said ammonia tank placed on said hammer, and the same struck by said hammer, without testing or inspecting the same to see whether or not it was charged, and without knowing whether or not the same had been so inspected or tested."

The record is silent as to what pleas were interposed by the defendant, and we presume the submission was on a plea of the general issue. The trial court gave to the jury the general affirmative charge for the defendant, and there was judgment accordingly. Thus the only question here is whether the evidence offered, there being no dispute as to the facts, was of such a character as to prima facie show negligence on the part of the defendant employer, or to permit any rational inference favorable to that view.

The general rule, often affirmed by this and other courts, is thus stated: "If the facts are disputed, or, if not disputed, the existence of negligence is an inference, which as mere matter of discretion and judgment, may or may not be drawn from them, the question must be submitted to the jury." A. G. S. R. R. Co. v. Jones, 71 Ala. 487. And, again: "In cases of doubt, where the facts are disputed, or where different minds may reasonably draw different conclusions from the same undisputed facts, the question of negligence vel non is a question of fact for the determination of the jury; but, when the facts are undisputed, and the inference to be drawn from them is clear and certain, it is a question of law for the decision of the court." L. &...