McCarthy v. The Whitney Iron Works Company

• Decision Date: 01 June 1896
• Docket Number: 12,097
• Citation: McCarthy v. The Whitney Iron Works Company, 20 So. 171, 48 La.Ann. 978 (La. 1896)
• Court: Louisiana Supreme Court
• Parties: CORNELIUS MCCARTHY v. THE WHITNEY IRON WORKS COMPANY

20 So. 171

48 La.Ann. 978

CORNELIUS MCCARTHY v. THE WHITNEY IRON WORKS COMPANY

No. 12,097

Supreme Court of Louisiana

June 1, 1896

Argued April 21, 1896

APPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

Benjamin Rice Forman, for Plaintiff, Appellant.

Saunders & Miller, for Defendant, Appellee.

OPINION

MILLER J.

The plaintiff sues for damages for personal injuries sustained in the course of his employment as a laborer in defendants' service, and due, he alleges, to their negligence. The answer denies any neglect on the part of the defendants, and charges that plaintiff's injuries were due to his own imprudence. The appeal is by plaintiff.

The work in which plaintiff engaged was digging a pit on defendants' premises used for molding castings. The excavation was about ten feet, and when the bottom of the pit was reached, the plaintiff was struck by a heavy piece of iron left in the pit by the "overflow" as the witnesses term it, of some previous casting, and which fell because the earth around it was removed by plaintiff and his fellow workmen in the progress of the excavation. Of course, this piece of iron formed by the hardening of the melted metal remaining from a former casting, was not attached to the walls of the pit, or secured in its position in any way, but kept in place only by the earth around it, was bound to fall when the earth was removed. The shape of the iron disclosed, as the excavation proceeded, was irregular, wide at bottom, coming to a point at the top, with rough, uneven sides, and of a character to suggest it served no purpose in the pit. It is in proof that when the digging had reached a point to reveal a part of this iron, its appearance attracted the attention of the workmen caused some comment, and one of the witnesses testifies he tried to shake it; another, that it obstructed the work, and there were expressions of the workmen in reference to this impediment, and another witness states he told plaintiff not to undermine it, but he testifies, he heard no such warning nor does it appear it was heard by the other workmen. When the iron fell, plaintiff about finishing his work, begun in the morning, it then being evening, was levelling the bottom of the pit with his back to the iron. The heavy weight falling on him, inflicted injuries to his hip, legs and ankles of a character so serious as to make him a cripple with diminished usefulness for life. On the issue of the knowledge of the defendants of the presence of this piece of iron in the pit in which their laborers were employed, there is the testimony that the previous proprietor of the premises using the pit for the same purpose as that for which defendants used it, left this iron in it; there is testimony that since their purchase defendants had molded large castings frequently in the pit, and there is the statement from one of the witnesses that their foreman knew of the iron and had said, before the accident, it should have been removed.

The duty of the employer to take all reasonable care against accidents to his workmen or servants, in the course of their employment, includes the obligation to keep the premises in which their services are to be rendered in safe condition. Especially is this obligation enforced in respect to latent dangers of which the employer is aware, or which with reasonable diligence he could have informed himself. The servant takes no risk of such dangers unless the circumstances are such that he should have become aware of them in the performance of his duties. When thus apprised, or when the danger should have suggested itself, the protection of the servant against such risk latent at the outset is withdrawn, or at least, qualified, 2 Thompson on Negligence, pp. 946, 947 et seq. 972, 959, 965, 1009. If this case was simply that of a workman injured while working in a pit in which there was a mass of iron apt to fall at any moment, and which did fall on him, he having no warning of the danger, it would be difficult to relieve the employer from responsibility. ...