Kingsport Foundry & Machine Works v. Sheffey

• Decision Date: 21 November 1927
• Citation: 299 S.W. 787
• Parties: KINGSPORT FOUNDRY & MACHINE WORKS, Inc., v. SHEFFEY et al.
• Court: Tennessee Supreme Court

299 S.W. 787

KINGSPORT FOUNDRY & MACHINE WORKS, Inc., v. SHEFFEY et al.

Supreme Court of Tennessee.

November 21, 1927.

Appeal from Law Court of Sullivan; H. T. Campbell, Judge.

Action by Mae Sheffey, for herself and others, against the Kingsport Foundry & Machine Works, Incorporated, and others. From a judgment for plaintiffs, defendant named appeals. Affirmed.

B. H. Hagey, of Knoxville, for plaintiff in error.

Worley & McAmis and Dodson & Ferguson, all of Kingsport, for defendants in error.

SWIGGART, J.

Mae Sheffey was awarded compensation for herself and minor children for the death of her husband, Roy T Sheffey, who was killed while working as an employee of the Kingsport Foundry & Machine Works, Incorporated, and the company has appealed.

It is stated on the brief of the appellant that only one question is presented on the appeal, which is stated as follows:

"Does an injury sustained by an employee while doing something which he had been specifically told not to do arise out of and in the course of employment?"

The deceased workman, Roy T. Sheffey, was employed as an iron molder. A short time before the accident, which resulted in his death, his employer had undertaken to make three pieces of grating to replace worn parts in a locomotive owned by the Kingsport Extract Company. The work had been undertaken by the employer as a "rush" job, and considerable delay had resulted in the completion of the gratings. The delay resulted from the fact that the casting, which was to be used as a pattern for the mold in which the new pieces were to be made, was too rough for use as a pattern.

James Berger, owner and operator of the foundry, testified that he bought a new file and gave it to Wagner, one of his three molders, and told him to file the grating as smooth as he could get it. Further delay resulted, and one of the other molders asked Mr. Berger if the pattern could not be made smooth by grinding with an emery wheel. Mr. Berger testified that he replied, "No, sir," and gave as his reason that the emery wheel was too thick to go between the openings of the grating. He stated, "That is why I gave instructions not to take that to the rock." Mr. Berger's testimony proceeds as follows:

"I told them that grate had to be made some way. I looked at it and got a little sore. I said, `You fellows carry that grate right now;' and I went back to the office. About 30 minutes after that, Wagner came to the office and said Sheffey got killed. It surprised me, because I did not understand how the man could get killed."

The evidence further shows that a molder named White first undertook to grind the casting on the emery wheel, but had abandoned the work when Sheffey took it from him to the wheel. While he was using the emery wheel on the grating, the stone burst into several pieces, one of which hit Sheffey in the head and killed him.

It was further shown that the emery wheel which Sheffey used was maintained and used in the foundry for grinding castings.

One of the molders, testifying as a witness for the employer, stated that he did not know whether Sheffey had heard Mr. Berger tell them not to use the emery wheel on the...