National Steel Co. v. Hore

• Decision Date: 15 June 1907
• Docket Number: 1,632.
• Citation: 155 F. 62
• Parties: NATIONAL STEEL CO. v. HORE
• Court: U.S. Court of Appeals — Sixth Circuit

155 F. 62

NATIONAL STEEL CO. v. HORE

No. 1,632.

United States Court of Appeals, Sixth Circuit.

June 15, 1907

A copper water block in the wall of a blast furnace being operated by defendant blew out, and plaintiff, who was a plumber's helper in defendant's employ, was injured by the molten metal which escaped. The block, which was embedded in the wall, had become leaky, and preparations had been made to remove it, which could only be done when the blast was off. After much of the cement packing which held it in the wall had been removed, it was decided to allow it to remain for some hours, until the next blast should be off, in order to make repairs to the water system, which had also become defective at the same time. When the removal was about to be made, and while the furnace was still being operated plaintiff was ordered upon a platform near the block to shut off the water, when the block was pulled, and was there when it blew out. Held that, although plaintiff knew of the defective water system, that the furnace was in full blast and that a part of the packing had been removed from around the block, it could not be said as matter of law that he assumed the risk arising from such conditions, where it did not appear that he knew the dangers therefrom, or that his experience had been such that he should have known that there was danger that the block would blow out.

James C. Tallman, for plaintiff in error.

Fred S Gates, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

By the sudden blowing out of a copper water block in the wall of one of the blast furnaces operated by the National Steel Company, John Hore, a plumber's helper, in the employment of the company, sustained severe injuries, for which he has recovered a judgment.

The facts essential to be stated are these: One of these blocks became leaky, and, preparatory to pulling it out to replace it with another, the plaintiff, John Hore, was directed by the manager of the furnace to ascend to a small platform, conveniently placed for removing this block, for the purpose of being ready to disconnect the iron water pipe which supplied it with water. Almost immediately upon his reaching his proper place, and before the blast had been shut off, this block blew out, and the molten contents of the furnace were ejected with great force in every direction.

These water blocks were hollow blocks of copper placed in many places in the wall of the furnace, through which, for the purpose of cooling the walls, a constant circulation of cold water was maintained. There was evidence tending to show that a water block could be pulled only when the blast was off, and that it was usually done when the blast was off for making a cast. Preparation for removing this block at the 9 o'clock morning cast had been made by removing much of the cement packing which held it in the wall and by giving direction to the plumber and his helper, Hore, to be ready then to show that not water pipe connections. There was evidence tending to show that not long prior to 9 o'clock it was reported to the manager that the filter in the water tank was clogged, and the brush, which was the mechanism used for cleaning it, had gotten out of repair and would not operate. Thereupon the manager directed that preparation should be made for repairing the water system at the 12 o'clock cast, and the pulling of this water block postponed until then, that both jobs might be done when the blast should be shut off at 12 o'clock. The petition avers that it was negligent to keep the hot air blast on with a defective water circulation through a water block thus weakened by the cutting away of the cement casing which held it in place.

The case has been made to turn in the argument here chiefly upon the question as to whether Hore did not assume all the risks incident to assisting in the removal and replacing of this water block. This defense was made by demurrer to the petition, by request for a peremptory instruction, by request for special charges bearing upon the doctrine of assumption of risk, and by exceptions to parts of the charge as delivered. The demurrer was rightly overruled.

The petition does not deny that plaintiff knew that the water system had broken down, that the packing had been in part removed from around this block, nor that the furnace was being operated under full blast, when in obedience to the order of the master he took his place near this water block to disconnect its water connections. But it does aver that he was 'ignorant of the danger' resulting from this state of facts. Now, knowledge of the conditions which surround the doing of a thing by a workman does not always imply knowledge of the dangers which confront him. The fact known, the defect which he sees, or should see if ordinarily observant, may present dangers so obvious that the law will conclusively presume that he did know the danger; no other inference being reasonable. Indeed, the inference in some circumstances is so strong that the denial of appreciation will be of no avail, for the law will say: 'You should have known if you had been reasonably attentive to your own safety. ' Cooley on Torts, 1042 (3d Ed.), and cases cited. Cases in which this court has indulged the presumption of a voluntary assumption of risk are not rare in our opinions. See Detroit Crude-Oil Co. v. Grable, 94 F. 73, 36 C.C.A. 94; Railroad Co. v. Hennessy, 96 F. 713; Narramore v. Cleveland, etc., Ry. Co., 96 F. 298, 37 C.C.A. 499, 48 L.R.A. 68; Kenney v. Meddaugh, 118 F. 209, 55 C.C.A. 115; and Riley v. Louisville & Nashville R.R. co., 133 F. 904, 66 C.C.A. 598. See, also, Reed v. Moore & McFerrin, 153 F. 358, and Coal Creek Co. v. Davis, 90 Tenn. 715, 716, 18 S.W. 387.

In the Grable Case, cited above, the contention was that, while the plaintiff might know of the defect by which he was hurt and be chargeable with knowledge of danger therefrom, 'he did not anticipate being hurt in the way he was,' and therefore a risk not assumed by the plaintiff. But in that case it appeared that the defect was known to the plaintiff and had been complained of. The court also found that the plaintiff was a mature and experienced man, and the danger to be apprehended presumably better known to him than the master. This court therefore said:

'When the defect is known, and the danger apparent, it is immaterial that the servant does not anticipate the precise extent or character of the injury which may result. None of the authorities upon the subject put the rule of assumption of risks upon the narrow distinction that the servant may know of the danger, but not fully realize the extent or character of the injury which may be sustained.'

On the other hand, this court has more than once held that the question whether one had knowingly assumed the risk of a particular defect was dependent upon the particular circumstances of the case, and, when more than one inference might be drawn, reasonably, it was a question for the jury. Valley Ry. Co. v. Keegan, 87 F. 849, 31 C.C.A. 255; Felton v. Girardy, 104 F. 127, 43 C.C.A. 439; Mason, etc., Ry. Co. v. Yockey, 103 F. 265, 43 C.C.A. 228; and Choctaw, etc., Ry. Co. v. McDade, 112 F. 888, 50 C.C.A. 591.

In the Keegan Case we said:

'Before a court is authorized to presume, as matter of law, that an employe accepts the dangers incident to defective machinery or roadbed, it must appear that he accepted employment with actual knowledge of such defect and its dangers, or that he continued in the service after he acquired knowledge, or by due care and reasonable attention might have known of the danger. To justify a presumption of knowledge, the defect must be

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