"The plaintiff recovered a judgment for five thousand dollars damages for personal injuries sustained by him on August 29, 1899, in consequence of alleged negligence of the defendant in not furnishing him a safe place and safe appliances for doing his work as a servant of the defendant. The defendant appeals.
"The plaintiff was employed by the defendant as second or night engineer for the defendant. The petition charged that it was a part of the plaintiff's duty to adjust certain machinery, and to turn a certain governor that regulated two certain steam pumps, which governor was located at a certain height above the floor; and that, in order to reach the governor, the defendant provided a narrow pine board from eight to twelve inches in width, seven-eighths of an inch thick, with its ends resting upon the tops of two steam chests connected with the engines and pumping works of the defendant, and that while plaintiff was engrossed in his said duty, the board slipped, and the plaintiff fell and was injured. The petition charged three specific acts of negligence, to wit: First, the heads or tops of the chests were dirty and greasy, etc., in consequence of which the plank slipped; second, that the board was insufficient in width, size, strength, and weight to afford plaintiff a reasonably safe place and secure footing; third, that the board was loose and unfastened to its supports, and was liable to slip and spring, on account thereof, from its proper position. Upon the trial the court, by instruction, withdrew the first charge of negligence from the jury, so that only the second and third charges are material here. The answer is a general denial, a plea of contributory negligence, a plea of assumption of risk, and a plea of release. This reply denies the affirmative pleas, and as to the release pleads that it was obtained by fraud.
"The case made is this: The defendant has on its premises and operates two Worthington pumps, placed side by side, some twelve or fifteen feet long, and about five to six feet apart. Each pump has on top of it two steam chests, each about eight inches wide and about twelve inches long. The steam that operates the pumps is supplied by a pipe running down about midway between the pumps. About four feet above the level of the steam chests a pipe runs from said down pipe to each of the two pumps. Each of said two last-named pipes has a throttle, so that steam can be shut off from either or both of the pumps. Above where said two pipes leave the main supply pipe there is a governor, which is an appliance for regulating the supply of steam, and which is operated by two brass wheels, one of which is held tight in one hand, while the other is turned by the other hand. This regulator is placed at a height varying, according to the several witnesses, from eight and a half to twelve and a half feet above the level of the floor. The tops of the steam chests were four to four and a half feet above the level of the floor. The defendant contends that the governor was four and a half feet above the top of the steam chests, and therefore the governor was eight and one-half feet above the level of the floor, while the plaintiff contends that the bottom of the governor was eight and a half feet above the level of the floor. The brass wheels which operated the governor were two feet above his head, which he says would make the wheels twelve feet six inches above the floor, and eight feet six inches above the tops of the steam chests. This difference, however, is not decisive of the case, and so need not be settled here. The tops of the steam chests were not smooth, but had the name of the manufacturer on them in raised letters, and also had nuts and bolts projecting above them about an inch and an eighth in height.
"L. C. Chapman was the chief engineer, and plaintiff's superior officer. G. H. Harper was the first engineer, and ran the pumps during the day. The plaintiff was the second engineer, and ran the pumps during the night. The plaintiff had had experience as a mechanic, a stationary engineer, a locomotive engineer, a fireman, a blacksmith helper, and an engine hostler. He had been in the employ of the defendant for nearly three years; first as a fireman, and from March or April prior to the accident, which occurred on August 29, 1899, he was night engineer. The governor was too high above the floor for a man to operate while standing on the floor. The defendant contends that to reach the wheels of the governor it had provided two safe methods, to wit, a ladder, which could be rested against the
supply pipe above the governor, and a plank, which could be rested upon the tops of the steam chests upon the two pumps. The plaintiff and his witness Gable say that there was no ladder at the time of the accident, and had not been for some time previously. The plank was from eight to twelve inches in width, about seven-eighths of an inch thick, and long enough for its ends to rest upon the steam chests of the two pumps. The plaintiff testified that during all the time he was night engineer until seven or eight days before the accident, when he wanted to reach the governor he climbed up on the pump, but when he was about to do the same thing seven or eight days before the accident the chief engineer, Chapman, `hollered to me—stormed out at me—by God to use that plank, and not be kicking the paint off of them pumps; that is what the plank is there for; he wanted it always used.' He says he used the plank five or six times thereafter, and was using it at the time of the accident. The defendant contends that no such thing occurred, but that the plaintiff used the plank without compulsion or protest. There is no question that the plank was not fastened in any way, but just rested loosely upon the tops of the steam chests. No one was with the plaintiff at the time of the accident, and therefore he alone can say how it happened. He says he put the plank on the tops of the steam chests, and then he got up on it and stood about midway between the two pumps, and was engaged in operating the brass wheels of the regulator so as to reduce the steam from high to low pressure. In order to do this, he had to hold one of the wheels in one hand, and turn the other wheel with the other hand, and all the while he had to look back over his shoulder to see the steam gauge on the pump so as to tell when he had reduced the pressure sufficiently, and while so engaged the plank slipped or tipped, and he fell down and was injured by the machinery. The defendant introduced testimony to the effect that soon after the accident the plaintiff said that in getting down off of the plank his foot slipped and he fell. The plaintiff introduced evidence tending to show that in all other places that he had ever seen there was a platform with a railing along the sides, and steps leading up to it, to enable the engineer to reach the governor.
"As to the release pleaded, the plaintiff said that his wages for August were drawn for him while he was laid up. He received a message that the chief engineer, Chapman, wanted to see him; that he went to the defendant's place of business, and was told by Chapman that some one wanted to see him in the office; that four or five days afterwards he went to the office, and there met Maj. Drought, the superintendent of construction, and after some talk and other preliminaries, not necessary to specify here, he told the plaintiff that Mr. Childs, the assistant manager, wanted to see him; that he went to see Mr. Childs, and he asked plaintiff if it was not his own fault that he was hurt, and plaintiff said it was not; that then Mr. Childs asked him what he wanted, and he said he wanted his wages for September; that Mr. Childs asked him on what ground he thought he ought to have wages for September, and he replied that everybody working in the plant had always had vacations every year ranging from one to three weeks, and had been paid during the time they were away, and that he had never had a vacation, and he did not think it right to dock him for lost time while he was crippled; that thereupon Mr. Childs said, `All right, Mathis, we'll pay you your wages for September,' and directed him to go with Maj. Drought and he would fix it up, and that they wanted him to come back as soon as he could; that he went with Maj. Drought to Mr. Dean's office, who usually paid the men their wages, and Maj. Drought said to Mr. Dean, `Give Mathis his September wages;' that Mr. Dean handed him three...
