New Orleans Ice Co. v. O'Malley

• Decision Date: 21 February 1899
• Docket Number: 728.
• Citation: 92 F. 108
• Parties: NEW ORLEANS ICE CO. v. O'MALLEY.
• Court: U.S. Court of Appeals — Fifth Circuit

92 F. 108

NEW ORLEANS ICE CO. v. O'MALLEY.

No. 728.

United States Court of Appeals, Fifth Circuit.

February 21, 1899

Chas S. Rice, for plaintiff in error.

Thos M. Gill, for defendant in error.

Before PARDEE, Circuit Judge, and BOARMAN and SWAYNE, District Judges.

PARDEE Circuit Judge.

The plaintiff in error states his case as follows:

'Martin O'Malley claims that while in the employ of the New Orleans Ice Company, on say July 6, 1894, a piece of scantling, six or eight feet long and four inches in width and thickness, with tackle attached, fell from forty feet or more above him upon the back of his head and neck; his skull thereby being broken, and his spine seriously injured, his hearing and sight impaired, etc. He alleges that he never worked above among the appliances which fell, never saw them, and knew nothing of them; the fog or mist rising from the ice and their distance preventing him from seeing them or their operation. That the beams on which the appliances rested were narrow, wet, and slippery, rendering it dangerous to the person upon them adjusting the appliances, and to the workmen below. That there was no floor on the beams where the appliances rested for the security of the person adjusting the appliances or the workmen below. That for want of such floor or planks, 'on which he could have safely walked,' one John Smith, on July 6, 1894, had to walk on the narrow and slippery beams, and, having slipped and lost his foothold, to save his own life dropped the scantling, which, falling on plaintiff, caused the injury complained of. That he was obeying defendant's orders at the time. Did not know, and had no reason to know, that he was in danger; while defendant knew, or should have known, that the appliances and the manner of using them were dangerous, and exposed plaintiff to the greatest risk and danger.

'The answer of the ice company, among other things, avers the common employment of O'Malley, with John Smith and others, in cutting out and removing ice from its factory. That in cutting and removing ice respondent furnished a perfectly safe, sound, and strong tackle of ropes and pulleys, suspended, for greater security, from two scantlings, placed across large and strong beams running overhead from one side of the freezing room to the other; and that, as the ice was cut away from under, it was necessary to shift the tackle along the beams closer to the uncut ice. That the tackle had thus to be shifted many times every day, to the knowledge of the plaintiff. That the labor of and the method of removal was entirely in the hands of the particular gang of workmen; that it was done by hand, as the plaintiff knew; that it was the best method known to the respondent, and had been long in use in the factory, before the accident in question. The answer admits danger inherent in the work, but avers that it is a danger open and apparent at once to any one of the age and capacity of plaintiff, exercising ordinary care. It denies that the plaintiff was required to work and expose himself while the appliances were being shifted; that this practice was well known to and acted upon by the gang to which the plaintiff was attached. It avers contributory negligence on the part of plaintiff in voluntarily and knowingly and carelessly exposing himself and 'remaining under said tackle and appliances while the same were being shifted, and that he did so without the orders, knowledge, or fault of respondent'; that it was the duty of plaintiff, knowing, as he did, that the tackle was being shifted, to have moved out of the way of possible danger, as he easily could have done; and that by doing so he would have avoided the accident, which befell him solely because of his imprudence and culpable negligence, and without fault of respondent.

'At the first trial by jury in December, 1896, in the circuit court, there was a verdict for plaintiff for $3,000. A new trial...