New Deemer Mfg. Co. v. Wells

• Decision Date: 15 January 1924
• Docket Number: 4101.
• Citation: 296 F. 687
• Parties: NEW DEEMER MFG. CO. v. WELLS.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F. 687

NEW DEEMER MFG. CO. v. WELLS.

No. 4101.

United States Court of Appeals, Fifth Circuit.

January 15, 1924

A. S Bozeman and Ben F. Cameron, both of Meridian, Miss. (Paul Dees, of Philadelphia, Miss., on the brief), for plaintiff in error.

Marion W. Reily and Nate S. Williamson, both of Meridian, Miss., for defendant in error.

Before WALKER and BRYAN, Circuit Judges, and CALL, District Judge.

WALKER Circuit Judge.

This was an action by the defendant in error against the plaintiff in error to recover damages for personal injuries sustained while the former was employed as night fireman in the latter's lumber-manufacturing plant. The parties are herein referred to by their designations in the trial court. Plaintiff was injured as a result of a fall while he was engaged in throwing fuel into an opening, called a 'pot hole,' through a metal-covered floor into the furnace below. While plaintiff was so engaged he was on a runway, one side of which was several inches above the level of the floor, and it slanted downward from that side. The surface of that runway was covered with metal. It was supported by wooden sills, which were not covered with metal. The wooden support nearest the pot hole was exposed to heat and flames coming through the pot hole. The injury complained of was attributed to the failure of defendant to furnish a safe place for plaintiff to work, in that the runway, while plaintiff was thereon engaged in throwing fuel into a pot hole, gave way in consequence of its wooden supports having been burned following the one nearest the pot hole being set on fire by heat or flames coming therefrom.

Defendant complains of the refusal of the court to direct a verdict in its favor. There was evidence tending to prove the following The wooden supports under the runway very frequently were damaged by being set on fire by flames coming from the pot hole. They were so burned out the night before that during which plaintiff was injured, and he helped to put out the fire on that occasion. The damage so done had not been repaired when plaintiff returned to work the following night. After he was hurt, he noticed that the damage caused by the fire of the previous night had not been remedied. Such damages were easily discoverable by defendant and those in charge of the operation of its plant. When plaintiff was hurt, he was at a place where it was customary and proper for him to be while doing...