Harrison v. LE MYERS CONST. CO.

• Decision Date: 18 July 1930
• Docket Number: No. 8723.,8723.
• Citation: 42 F.2d 950
• Parties: HARRISON v. L. E. MYERS CONST. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.2d 950 (1930)

HARRISON v. L. E. MYERS CONST. CO. et al.

No. 8723.

Circuit Court of Appeals, Eighth Circuit.

July 18, 1930.

Hugh Carney, of Atlanta, Tex. (Howard A. Carney, of Atlanta, Tex., on the brief), for appellant.

James D. Head, of Texarkana, Tex. (King, Mahaffey & Wheeler, of Texarkana, Tex., and Arnold & Arnold, of Houston, Tex., on the brief), for appellees.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, plaintiff below, received personal injuries while in the employ of the defendant L. E. Myers Construction Company, and brought this action against that company and the defendant Southwestern Gas & Electric Company to recover damages for such injuries. The gist of the allegations with reference to the alleged negligence of the defendant Myers Construction Company was that it had failed to exercise proper care to furnish the plaintiff with a reasonably safe place in which to work, and that it had failed to post notices of the dangerous condition of the premises, and had failed to maintain sufficient lights in that portion of the premises where plaintiff received his injuries.

The Myers Construction Company, with certain admissions as to the employment of the plaintiff, denied all allegations of negligence contained in the complaint and alleged that the plaintiff at the time of receiving his injuries had departed from the line of his duties for some purpose of his own; that he knew, or by the exercise of ordinary care should have known, the danger of using the portion of the premises in the use of which he was injured; and that his injury was due solely to his own negligence. In the view we take of the case, it will not be necessary to consider the relation of the defendant Southwestern Gas & Electric Company, the owner of the premises, nor the issues raised by its separate answer.

It appears from the evidence that plaintiff, at the time of receiving his injuries, was employed by the defendant Myers Construction Company as a painter. He was thirty-five years of age and had been a painter engaged in various kinds of painting for over twenty years. He was first employed on the building where he received his injuries, July 23, 1928. Some two weeks prior to the accident, he, with certain other painters, painted the outside of a structure referred to in the record as a flume. This was constructed of sheet metal and was superimposed upon the roof of the boiler room. It had a rounded top and its general exterior appearance resembled somewhat a railway baggage or express coach. It extended in an easterly and westerly direction and varied in height, growing gradually higher from the east toward the west. At its west end this flume connected with a smokestack. The total length of the flume was one hundred twenty-four feet, and it extended out over the west end of the roof so as to connect with the smokestack, and at the east end it extended over the roof. This structure was covered on the interior with stucco and had been finished complete some two weeks prior to the time plaintiff received his injuries. Through the south wall or side of this flume were two openings which in normal condition were closed with metal sheets bolted to the metal wall or side of the flume, through which, when opened, ingress and egress might be had to the interior of the flume. These openings or manholes, apparently two in number, were twenty-one inches in width by thirty inches in height; the bottom of the opening being about a foot above the roof of the building. This roof was made of cement and gravel, had a smooth surface with a slope of about one-fourth of an inch to every five feet, and extended the whole length of the boiler room. Entering the bottom or floor of this flume, through the roof, came from the boiler room below, five uptakes from the battery of seven boilers. Where these uptakes entered through the bottom or floor of the flume, there were openings, as the purpose of the uptake was to carry off smoke and gas from the boilers below the flume, the smoke passing thence from the flume to the smokestack. After the flume had been finished on the inside, the plaintiff and other painters painted it on the outside, but no paint was ever applied to the inside, and no painter had any duty requiring him to enter the flume. After the flume had been completed both inside and out and the boilers had been fired up, an explosion occurred, damaging the stucco lining in the interior of the flume near its west end, at a point near what is described as the uptake from boiler number seven, and the heat from the boiler damaged or destroyed the painting on the outside at that place. It also destroyed the lining in that part of the flume, so that the boilers were shut down to permit the flume to cool off so that workmen might repair it. To make these repairs on the interior it was necessary that the workmen have ingress and egress to the inside of the flume, and this could only be had through the openings which, as before noted, in normal condition were closed by metal plates. At the time of the accident these metal plates had been removed so as to permit ingress and egress, and also to permit circulation of air as the weather at that time was hot.

On the morning of October 8, 1929, while these interior repairs were in progress near the uptake at the west end of the flume, the uptake at that point was covered over with metal and boards, on top of which was placed a tarpaulin. The other uptakes, however, were all open, as no repairs were being made near them. At this time the painting crew, including the plaintiff, were engaged in repainting the outside of this flume near the west end of the south side where the paint had been destroyed by the explosion. At about fifteen minutes before 12 m., plaintiff was called from his work to the east end of the flume, and as he passed the north opening, he placed his paint bucket inside and says that he then observed that workmen were at work repairing the interior at a point west from that opening. There were electric lights temporarily installed in the portion of the interior of the flume where the workmen...