James B. Clow & Sons v. Boltz

• Decision Date: 07 March 1899
• Docket Number: 610.
• Citation: 92 F. 572
• Parties: JAMES B. CLOW & SONS v. BOLTZ.
• Court: U.S. Court of Appeals — Sixth Circuit

92 F. 572

JAMES B. CLOW & SONS v. BOLTZ.

No. 610.

United States Court of Appeals, Sixth Circuit.

March 7, 1899

Where the manner of using a machine with which an employe was required to work, and by which he was injured, appeared, in the light of facts disclosed after the injury, on the trial of an action by the employe for damages, to have been obviously dangerous, but the question of its safety had been called to the attention of the employer, who continued the use, and the machine had been so operated for some time without injury to any one, the question of whether the employe, who was a common laborer, had assumed the risk, was one for the jury.

This was a suit at law for damages for personal injury. The plaintiff was employed by the defendant, a corporation engaged in the manufacture of cast-iron pipe. The pipe is made by pouring the molten metal into a mold. The mold is made by sinking a hole deep into the ground, lining it properly, and then inserting in this hole a heavy core. The core is removable. It is cylindrical in form, and hollow, with short projections or lugs at each end, upon which it is hung or steadied. The core is bound round with hay, which is, in turn, covered with mud and baked in an oven. It has to be removed from the oven to the pit, and back again, at short periods of time. It is carried on a car running upon a railway track about 35 feet long. The injury to the plaintiff was occasioned by the falling of one of these cores from the car or truck, upon which it was being carried, onto the shoulders and back of the plaintiff. The cores vary in size according to the size pipe to be made. The core which fell in this instance was a core for a 24-inch pipe. The truck upon which the core was carried was made to carry two 36-inch cores and two 20-inch cores. The cores were about 14 feet in length. The truck was a rectangular iron frame, made of railroad iron, on four wheels. At each end was a framework or rack supporting the two 36-inch cores, and on this rack, and rising above it were two standards, supporting the two 20-inch cores. The 36-inch cores were on the outside of the car, while the 20-inch were in between the two 36-inch cores, but above them. The racks were not pivoted to the cars, nor the standards to the racks. The legs of the racks straddled the frame of the cars, and the legs of the standards straddled the frame of the racks. The 20-inch cores on the standards were about 6 feet from the ground, and weighed 3,000 pounds each. The bases of the standards were broader than their tops, which had grooves, into which the axial lugs of the cores fitted somewhat loosely. The standards had been made to carry but 20-inch pipe. They seem to have been strong enough to carry 24-inch pipe, but when 36-inch pipe were put upon the same car, which was but four feet wide, it was found that the standards, if pushed close together, would not be far enough apart to carry the 24-inch cores without chafing the surface of one against that of the other. As the object of baking in the oven was to prevent this surface from abrading it became necessary to prevent the two cores from rubbing together. Accordingly, with the knowledge and by the direction of the superintendent and managers of the defendant company's works, wedges were introduced under the inner side of each standard, so as to topple the standard out a little from the perpendicular line. In that way, by using wedges on both standards of sufficient thickness, it was possible to swing the 24-inch cores far enough away from each other not to rub. The cores were loaded onto and off the car by means of cranes, after they had been properly prepared with hay and mud. The car was pushed up an incline into the ovens, where the cores were baked. After they were sufficiently baked, the men operating the car, by means of hooks, pushed and pulled the car slowly down the slightly inclined track to the pit. It was the duty of one of the men to pull, and at the same time to carry a wedge to put under the front wheel of the car, to prevent its running into the pit. This duty was assigned to the plaintiff, John Boltz. He was a common laborer, who had worked in the foundry for six months. He was sometimes called the 'first laborer' of the gang. His duties were to assist in loading and unloading the cores, in pushing them in and out of the oven and in other common labor. The gang was in charge of the core maker, who was an expert in covering and baking the cores. The car had been used for six months, carrying cores for smaller-sized pipe, without any accident whatever. About eight days before the accident, however, heavy orders were received for 36-inch pipe; and, in order to obviate the difficulty of the use of these cores with the 24-inch cores on the same car, the wedges already spoken of were introduced, against the protest of the core maker, who said they were not safe. The core maker adjusted the wedges. The railway track consisted of two ordinary rails, 30 feet in length, supplemented by two rails 6 feet in length. At the joint of the long and short rail on the west side there was a depression in...