Flaig v. The Andrews Steel Co.
| Decision Date | 16 December 1910 |
| Citation | 141 Ky. 391 |
| Parties | Flaig v. The Andrews Steel Co. |
| Court | Kentucky Court of Appeals |
Appeal from Campbell Circuit Court.
HORACE W. ROOT and B. F. GRAZIANA, for appellant.
FRANK V. BENTON, for appellee.
Appellant, Charles Flaig, sued appellee company to recover damages for an injury sustained while in its employ as a laborer. Three grounds of negligence are set up in the petition — failure of the defendant to furnish plaintiff a reasonably safe place in which to work, failure to provide him reasonably safe tools with which to work, and failure to warn him of the dangers incident to his employment. The answer put in issue each allegation of negligence, and pleaded contributory negligence on the part of plaintiff. This plea was traversed in the reply.
Upon the trial but two witnesses testified as to how the injury occurred. These were plaintiff and one Charles McGraw, who was operating the machine where plaintiff was at work when injured. At the time of the injury plaintiff had been in the employ of the defendant company for eight days, doing such odd jobs as were assigned to him around the mill. At the date of his employment it was understood that as soon as an opportunity presented itself he was to work in the blacksmith shop. but up to the time of his injury no opening had occurred for him there.
On the morning of August 17th he was directed by the master mechanic to work at a small shear which was engaged in cutting short bars of steel, his business being that of an off-bearer of such bars. After having worked at this machine for something like two hours, he was told to work at another machine where thirty-foot bars were being cut; and it was after he had been working between an hour and a half and two hours at this machine that he sustained the injury complained of. The table on which the thirty foot bars were being run out extended from the shear over a pit, some eight feet wide, eighteen feet long, and about ten feet deep, near its center, so that the pit was open or exposed on each side of this table at a point near the shears. This pit was used as a dumping place for the hot bars as they were cut by the shears, it being the practice of the company to have the hot bars dropped into a receptacle in this pit, and, when the receptacle was filled, a crane would be lowered and chains fastened to the receptacle and it would be lifted out of the pit and carried to other portions of the building and emptied. The crane was so adjusted that it could be lowered into the pit on either side of the table. Plaintiff's particular duty while at work at this table, was to see that the long bars, as they were run out under the shear, were kept straight on the table. In order to enable him to do this he was furnished with an iron rod, some four feet long, and bent at one end as indicated in the following figure:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
When the bar would bend outward he would hook his rod over it and pull it towards him, and when it would bend toward him he would put the end of the rod against the bar and push it from him. If, for any reason, the bar failed to come through far enough under the shear, he together with other employees would, by the use of a grab hook, pull the bar through the desired length; and if it came through too far, so as to bring the end beyond the shear or knife which was to cut it off, it was his duty to hook his rod over the end of the bar and pull it back, while another employee raised the other end slightly so as to enable it to pass under the shear. The table upon which these bars were being run out was at about an elevation of four inches below the shears. Four bars would run through at one time, each bar being about 8 1/8th inches in width and 2-5ths of an inch thick. Several such layers would be run through and cut before they were removed.
After plaintiff had been thus engaged for something like an hour and a half, a bar passed too far under the shear, and the man who was engaged in operating the shear called to plaintiff to pull it back. He hooked his rod over the end of the bar and pulled in the proper direction. The hook slipped off of the end of the bar, he lost his balance and fell into the pit and was seriously injured in his legs and feet.
It is the theory of the plaintiff that his rod was caused to slip from the bar of steel by the elevation of the end of the bar next to the shear, although it is not clearly shown that at the time of the accident, the end of the bar next to the shear had been elevated at all. It was shown that if it was elevated it was not elevated more than 2½ inches at the most, and the evidence shows beyond contradiction that the elevation of a bar of hot steel twenty-three feet long (which was the length of the bar upon which he was pulling), at one end will have no appreciable effect upon the bar at the other end, for the reason that the elasticity of a bar of this character and thickness is such that it would not leave the table beyond a point four feet from the end which was being raised. Upon this showing it is contended by plaintiff that if the rod was not caused to slip from the bar by the elevation of the end thereof next to the shear, then it was because the raising of that end from one side caused the bar to shift at the other end toward the opposite side.
There is no proof, however, to support this theory, for it is not shown that the end of the bar against which plaintiff was pulling did shift in the slightest. All that the proof does show is that he took hold of this end of the bar with his hook, that he pulled, and it slipped therefrom. The place where plaintiff was engaged at work was within 3 1-2 or 4 feet of the pit into which he fell. Just what caused the hook to slip from the end of the bar is not shown. Whether it was due to the fact that the end of the bar was round, so that the hook would not take hold readily, or whether plaintiff threw his weight against the rod before he had secured a firm hold on the end of the bar, or whether it was caused by the movement of its other end by his helper or co-worker, is a matter of speculation. Neither plaintiff nor McGraw were able to say whether the end of the bar next to the shear had been raised or not. But conceding that it had, this could scarcely have caused the hook to slip from the other end of it, for it was shown by actual demonstration with a cold bar of this length, which is less elastic than a hot bar that the elevation of one end as much as 4 1-2 inches has no appreciable effect whatever upon the other end. Neither could the prying up of one end of the bar have caused the far end thereof to move laterally, for it was in between other bars on the table and could not have moved as much as an inch either way.
The proof shows that the rod with the hook on the end of it was a suitable tool for the business and the kind in general use at the mill for the purposes for which it was employed. It was not shown to be defective in any particular, although plaintiff testified that he believed that, from his experience with tools around blacksmith shops etc., a tool better suited for the work could have been made. He made no objection to the use of this tool, nor did he testify at the trial that it was not a suitable tool for the work which he was required to do with it; but simply that he believed a tool better suited for the work could be made.
At the time of the injury plaintiff was about forty-nine years of age, and had worked many years around rolling mills and blacksmith shops. He had been engaged in this plant for eight days. He knew of the presence of the pit; knew that the table at which he was working extended across the pit; knew and understood the purposes for which it was used; and knew that if he fell into it he was liable to be hurt. The employment given him was in itself neither difficult, complicated nor hazardous, and to one of his age and experience in the mill and blacksmith business and in the use of tools and handling of iron, was not such as needed or required explanation or warning; for he testifies that he understood fully that if he fell into the pit he would be injured. He could not have fallen into it but for the fact that he lost his balance. The injury occurred in broad daylight, at a place where there was nothing to obstruct his view.
On this showing the trial court peremptorily instructed the jury to find for the defendant, which was done, and of that ruling plaintiff complains and prosecutes this appeal.
Before entering upon a consideration of the main question, we will dispose of appellant's complaint that the trial court abused its discretion to his prejudice in not permitting him to ask of his witness, Charles McGraw, leading questions. This complaint is based upon the theory that McGraw was a hostile witness, and therefore he should have been permitted to have asked leading questions in order to properly present his case. The...
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