Fairbanks, Morse & Co. v. Walker

• Decision Date: 27 March 1908
• Docket Number: 2,611.
• Citation: 160 F. 896
• Parties: FAIRBANKS, MORSE & CO. v. WALKER.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F. 896

FAIRBANKS, MORSE & CO. v. WALKER.

No. 2,611.

United States Court of Appeals, Eighth Circuit.

March 27, 1908

Plaintiff and two others engaged in taking down certain machinery were ordered by their foreman to roll a five-inch rim by wheel weighing between 1,800 and 2,200 pounds, to a point where it could be hoisted from a basement. Plaintiff and his fellow workmen were intelligent, and made no complaint that the number of men allotted was insufficient to do the work, but proceeded to roll the wheel on the concrete floor until the wheel encountered the raised surface of a water pipe partially buried in the floor, when the lower part of the wheel slid laterally along the pipe and fell on plaintiff's leg, causing the injuries complained of. The surface of the floor was exposed when they began work, and the partially buried pipe was plainly observable until it was covered with water and grease that came from the machine they were dismantling. Held, that the neglect of plaintiff and his fellow servants rather than the lack of sufficient men to perform the work, was the proximate cause of his injury, and that defendant was not negligent in failing to provide a sufficient number of workmen.

Albert Walker sued Fairbanks, Morse & Co., a corporation, for damages for personal injuries sustained in its service. The negligence charged was that defendant failed to provide a sufficient number of workmen to do the work in which plaintiff was engaged when injured. It was averred that the service reasonably required 'the active work of at least four men or more. ' The defense was a general denial contributory negligence, and assumption of the risk. The facts were these: The defendant sent four men, including the plaintiff and a foreman, to remove an engine from the basement of a building. The engine was dismantled, and one of the fly wheels and other parts were moved across the engine room and hoisted out by means of block and tackle. In all this work the plaintiff participated. The accident occurred while plaintiff and two of the men were engaged in rolling the second fly wheel over the basement floor to the point of hoist. The foreman having directed them to move the wheel over went to the floor above to get the block and tackle ready. The wheel was six feet in diameter, had a five-inch rim, and weighed from 1,800 to 2,200 pounds. It stood upright when the men started to move it. The plaintiff was at one end and walked backward as the wheel rolled another man was at the other end and walked forward, while the third walked at the side of the wheel grasping the spokes to steady it. When they were rolling it, the wheel encountered the raised surface of a water pipe partly buried in the concrete floor, the lower part slid laterally along the pipe, and plaintiff and one or both of his associates moved to the falling side and tried to support it but were unable to do so. Plaintiff was then so near another engine in motion he could not escape and the...