Mason v. Herrin Transfer & Warehouse Co., Inc.

• Decision Date: 02 June 1936
• Docket Number: 5244
• Citation: 168 So. 331
• Parties: MASON v. HERRIN TRANSFER & WAREHOUSE CO., Inc. (INDEMNITY INS. CO. OF NORTH AMERICA, Intervener)
• Court: Court of Appeal of Louisiana — District of US

168 So. 331

MASON v. HERRIN TRANSFER & WAREHOUSE CO., Inc. (INDEMNITY INS. CO. OF NORTH AMERICA, Intervener)

No. 5244

Court of Appeal of Louisiana, Second Circuit.

June 2, 1936

Rehearing denied June 26, 1936.

E. W. &amp P. N. Browne, of Shreveport, for appellant.

Hoye Grafton, of Shreveport, for appellee Mason.

Irion &amp Switzer, of Shreveport, for appellee Indemnity Ins. Co. of North America.

OPINION

HAMITER Judge.

While in the performance of his duties on January 10, 1935, as an employee of the Shoreline Oil Company, plaintiff was struck and injured by a falling chain. On that date, and for some time prior thereto, that company was erecting and constructing a new boiler house on its property at or near Lewis, La., and the defendant, Herrin Transfer & Warehouse Company, Inc., was engaged in the installation therein, pursuant to contract, of two boilers and the necessary huge smokestacks.

At the time of the accident, the boiler house, measuring 60 feet long and 40 feet wide, with walls 22 feet high, and being constructed of steel framing and metal sheeting, was only partially completed, for the sheet metal had not been placed on the steel framework of the roof and walls on its eastern side. Defendant had substantially finished its installation work at that time, and was in the act of dismantling and removing the equipment and machinery.

In performing the contract, defendant used two gin poles. The smaller pole, being of wood, was lashed or tied with chains to the outside of the steel perpendicular beam on the east side of the building opposite the smokestacks, and was employed in erecting the larger pole of steel construction. This last-mentioned pole, having a length of approximately 36 or 40 feet, was installed in a vertical position on a wood block, of the dimensions of 12 inches by 12 inches by 8 feet, which was secured on top of the 22-foot steel beam of the east wall at one end, and extended west across and was lashed to a boiler beam at the other end. This larger pole was used in lifting and placing the boilers and smokestacks. A heavy valve, weighing about 90 pounds, and employed as ballast or a counterweight, was fastened to the base of the steel pole with a chain. In order to erect the smokestacks, it was necessary for defendant to remove, and it did so remove, several of the rafters or steel purlins from the east side of the roof's framework. They were to be replaced by defendant on the completion of the work. At least one of these purlins was laid alongside of and parallel to the wooden block on which the large pole was erected. Numerous and different sized chains were used by defendant in its operations.

When injured, plaintiff, together with another workman, was carrying out the instructions of his foreman in stacking brick in a 4-foot alley between the boilers and the cast wall on the inside of the building, and substantially beneath the tall steel gin pole. He was working in a bent-over or stooping position, with his eyes directed toward the brick, at the time of being struck on the back by the chain.

In this suit for damages, plaintiff charges various acts of negligence on the part of defendant and its employees. Defendant denies such negligence; alleges that if plaintiff was injured, the proximate cause was due to the fault of other parties over whom it had no control; and alternatively and affirmatively avers that plaintiff was contributorily negligent.

The Indemnity Insurance Company of North America, the workmen's compensation insurer of plaintiff's employer, is an intervener in the suit, and claims payment by preference and priority for the amount of compensation it has paid to plaintiff, and for the medical expenses incurred.

There was judgment for plaintiff, and also in favor of intervener, after trial of the case on its merits, and defendant has appealed. An answer to the appeal has been filed by plaintiff in which he asks for an increase in the amount of damages awarded.

In support of his demands, plaintiff's counsel relies in a large measure on the doctrine of res ipsa loquitur. It is argued that upon adducing proof that the chain which fell and struck plaintiff was a part of the equipment of the defendant and under its control, a prima facie case of negligence against defendant was established. Because of the view which we take of the case and hereinafter express, we deem it unnecessary to discuss that doctrine and to decide whether or not it is applicable.

Viewing the evidence in its entirety, it is apparent, and the trial judge found, that the chain causing the injury was the one which belonged to defendant and had been used by its employees in fastening the heavy valve to the base of the steel pole. On the morning of and shortly prior to the accident, defendant's employees removed the valve and chain from the pole, lowered the valve to the ground, and placed the chain across the 12 by 12 block and wedged it between that block and the above-mentioned purlin which lay alongside it. Thereafter, and before the accident, Oscar Wallace, one of defendant's workmen who was known as the "air man," was elevated by a rope or cable, handled by a fellow-employee named Bryant, to a point near the top of the smokestacks where he plumbed and tied them together with a guy wire. Wallace then descended from his "sky job," and alighted on top of the boiler beam about 2 feet from the block, chain, and purlin. Thereupon, the purlin was moved, causing the chain to become loosened and to drop a distance of about 22 feet onto plaintiff. According to the testimony of this "air man," the purlin, which weighed about 20 or 25 pounds, was lifted by one of the iron workers of the Shoreline Oil Company who was standing behind him. Although Oscar Wallace, a witness for defendant, was the only person to testify regarding the lifting of the purlin and the consequent falling of the chain, and this particular part of his testimony is somewhat weak because his back was to the chain at the time of its falling, nevertheless, for the purpose of this discussion, we shall accept defendant's view on this fact and consider that it was so lifted by a person who was not in the employ of defendant company.

Defendant's employees obviously knew that plaintiff was working immediately beneath them, because only a distance of 22 feet separated them. Also, there was sufficient light to render him visible, as the sides of the building had not then been constructed and nothing intervened to obstruct their view. They were in a better position to observe plaintiff than he was to see them; for they no doubt were compelled to frequently look down, while plaintiff's work in stacking brick caused his vision to be focused on the ground. Numerous other workmen were in and around the building. No safety zones or barriers of any nature were established by defendant or its employees beneath their position of operations so as to prevent persons from being injured by the possible falling of tools or portions of the equipment. Plaintiff was given no warning whatever of any impending danger.

There are three questions of law, affecting defendant's alleged liability, presented herein, viz.: (1) Under the circumstances, were defendant's employees negligent in wedging the chain between the purlin and the wooden block? (2) If they were negligent, was that negligence a proximate or merely a remote cause of the accident? (3) Was plaintiff negligent in working beneath the steel pole so as to bar his recovery herein?

We are of the opinion that the first question should be answered in the affirmative. The purlin, against which the chain was wedged or jammed, was movable and was temporarily laid alongside of the block by defendant's employees with the intention of their later replacing it. The possibility of its being lifted or moved by one of the numerous workmen engaged on the roof structure, and the consequent falling of the chain, was or should have been...