Johns-Manville v. Pocker

• Decision Date: 04 May 1928
• Docket Number: No. 7837.,7837.
• Citation: 26 F.2d 204
• Parties: JOHNS-MANVILLE, Inc., v. POCKER.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 204 (1928)

JOHNS-MANVILLE, Inc., v. POCKER.

No. 7837.

Circuit Court of Appeals, Eighth Circuit.

May 4, 1928.

Carl L. Crocker, of Kansas City, Mo. (Merritt U. Hayden, of Detroit, Mich., and Roy B. Thomson and Ryland, Boys, Stinson, Mag & Thomson, all of Kansas City, Mo., on the brief), for plaintiff in error.

W. W. McCanles, of Kansas City, Mo., for defendant in error.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MUNGER, District Judge.

BOOTH, Circuit Judge.

This is a writ of error to a judgment in damages after verdict in favor of defendant in error, plaintiff below, in a personal injury suit. The case was originally commenced in the state circuit court of Jackson county, Missouri, but was removed on the ground of diversity of citizenship and requisite amount involved. Undisputed facts are as follows:

Plaintiff was in the employ of defendant and at the time of the accident was engaged in putting an asbestos covering over steam pipes in the plant of the Springfield Gas & Electric Company in Springfield, Mo. While at his work, plaintiff stood upon a narrow platform about 20 feet above the floor of the building. He had with him on the platform a coil of wire. This was used by him to wind around and hold in place the asbestos covering on the pipes. He had been engaged at this kind of work about 2½ weeks, and on this particular platform 2 or 3 days. At the time of the accident he was in the act of cutting a piece of wire off the coil, when the end of the wire which had just been cut, recoiled and hit him in the eye, causing the injury complained of.

The acts of negligence on the part of the defendant which plaintiff alleged caused the injury, were as follows: (1) Failure to furnish plaintiff a safe place in which to work. (2) Furnishing unsafe wire with which to work. (3) Failure to notify plaintiff that the kind of wire furnished had been changed from copper or galvanized to steel. (4) Failure to warn plaintiff of the danger that the wire was likely to recoil and injure him, though defendant was aware of the danger. (5) Failure to furnish reasonably sufficient light for plaintiff to do his work. (6) Allowing steam to come from an ash pit located below the place where plaintiff was working, and to obscure plaintiff's vision. (7) Failure to furnish sufficient room in which plaintiff could do his work. (8) Compelling plaintiff to work in a cramped position. (9) Furnishing plaintiff a loose and unsteady scaffold or platform on which to work.

The seventh and eighth items of negligence were eliminated by the court in its charge to the jury. It will be observed that the remaining charges of negligence group themselves as follows: 2, 3, and 4, with the wire; 1, 5, and 6, with the light; 1 and 9, with the scaffold or platform.

We shall take these matters up in reverse order. The platform or scaffold was made up of two boards, about 12 feet long, 8 or 10 inches broad, and 2 inches thick, placed side by side and resting upon timbers 2 inches by 4 inches, placed one near each end of the planks. The timbers in turn rested upon and across some of the steam pipes. The planks were not nailed or fastened to the crosspieces, nor were the latter fastened to the pipes. There was evidence tending to show that the platform thus constructed, while sufficiently strong, was somewhat unsteady.

As to the light: There was evidence tending to show that plaintiff at the time of the accident was working at a place in the room where most of the natural light from the windows was cut off by one of the boilers; that two small electric lights hung about 8 or 10 feet above his head. There was also evidence tending to show that at times ashes from the boilers would drop automatically into the ash pit, which contained water, and that this would cause steam to be formed, which would rise and obscure plaintiff's vision. The evidence further showed, however, that, when this occurred, plaintiff momentarily stopped work. There was evidence that this method of construction and operation of the boilers was a modern and approved method. There was further evidence that other workmen at or near plaintiff's place of work found the light sufficient. In our opinion there was no substantial evidence to sustain the charge of negligence of furnishing insufficient light, and this item should not have been submitted to the jury.

As to the wire: The charges of negligence here are (a) that the wire was unsafe; (b) that there had been an abrupt change in the kind of wire furnished, from one having little or no recoil to one having pronounced recoil; (c) that no notice had been given plaintiff of the change. The original complaint said nothing about the character of the wire. The amended complaint, filed about 11 months later, alleged that always prior to the time of the accident plaintiff had been furnished with copper or galvanized wire, but just prior to the time of the accident he was furnished with steel wire. The testimony, however, failed to sustain these allegations. There was no proof whatever that copper wire had ever been furnished. Plaintiff testified that the wire was supposed to be annealed wire. The only testimony as to change in the character of the wire was by plaintiff, who testified that the wire furnished to him on the afternoon of the accident was harder than the wire used previously; and he testified, further, that the reason he knew it was harder was because, when he cut off a piece, one end flew up, which had not happened before. There was also testimony that sometimes the wire would vary in stiffness, though supposed to be uniform. On the other hand, there was testimony showing that the wire was furnished by defendant from its warehouse; that it was suitable for the purpose for which it was used; that it was purchased of a leading reputable dealer; that there had been no change in the kind of wire furnished plaintiff; that the wire was uniform, except that there might be a variation of one-half a gauge difference in size, although it was all supposed to be the same; that it was galvanized annealed wire.

In view of all of the testimony relative to wire, we think that the allegations of the amended complaint that the wire was unsafe, and that there had been a change in the kind and character of the wire furnished to plaintiff, are without substantial support, and that the trial court might well have declined to submit these charges to the jury. But, even though it be conceded that there was negligence on the part of defendant in not furnishing a better platform, in not furnishing better light, in not furnishing wire of greater uniformity, still we think that there was a failure to show that such negligence was the proximate cause of plaintiff's injury.

The law relative to proximate cause has been so often examined and analyzed by this court that a very brief review will suffice at this time. There must be shown a causal connection between the breach of duty and the injury to plaintiff (Lang v. N. Y. C. R. Co., 255 U. S. 455, 459, 41 S. Ct. 381, 65 L. Ed. 729); and it must be further shown "that a like injury due to the alleged negligence could have been anticipated by a reasonably prudent person" (C. & N. W. Ry. Co. v. Payne C. C. A. 8 F.(2d) 332). In Cole v. German Sav. & Loan Soc., 124 F. 113, 115, this court, speaking by Circuit Judge Sanborn, said:

"An injury that is the natural and probable consequence of an act of negligence is actionable, and such...