North Memphis Sav. Bank v. Union Bridge & Construction Co.

• Decision Date: 22 June 1917
• Parties: NORTH MEMPHIS SAV. BANK v. UNION BRIDGE & CONSTRUCTION CO. ET AL.
• Court: Tennessee Supreme Court

196 S.W. 492

138 Tenn. 161

NORTH MEMPHIS SAV. BANK v. UNION BRIDGE & CONSTRUCTION CO. ET AL.

Supreme Court of Tennessee.

June 22, 1917

Certiorari to Court of Civil Appeals.

Consolidated action by the North Memphis Savings Bank, administrator of the estate of John Koch, and of the estate of Alexander Johnson, against the Union Bridge & Construction Company and others. From a judgment for defendants, affirmed by the Court of Civil Appeals, plaintiff brings certiorari. Affirmed.

Henry Craft, of Memphis, for appellant.

Barton & Barton, of Memphis, for appellees.

NEIL C.J.

These two actions were brought separately in the circuit court of Shelby county for the death of the two intestates mentioned in the margin, but, resting on the same facts, were consolidated and heard together.

John Koch and Alexander Johnson were members of a construction crew in the service of the Union Bridge & Construction Company, which was engaged in building the great bridge known as the Harrihan Bridge, across the Mississippi river at Memphis. They were killed while descending the man shaft of one of the bridge piers in course of construction on the Arkansas side of the river. It is alleged in the first count of the declaration that they were descending in the usual manner, the way they had been accustomed to descend into the shaft of pier No. 5, together with six other men, members of the same shift, when they and all the other men were overcome by deadly gas and fell from the ladder upon which they were descending and perished, their dead bodies being found at the bottom of the shaft; that the gas which caused their death accumulated and existed in said shaft as the result of gross negligence and want of proper care and caution on the part of the defendants, their agents and representatives. The second count states as the cause of action that the gas which caused the death of the two intestates accumulated and existed in said shaft as the result of gross negligence and want of proper care and caution on the part of defendants, their agents and representatives, in this, to wit:

"Defendants failed to put a lock at the top of the shaft so as to be able to keep compressed air in the shaft. Had the shaft been supplied with a lock at the top, all deadly gases and vapors would have been kept out of the shaft by reason of air pressure. This method of construction was the proper and scientific method to have been pursued, and by reason of the failure of defendants to place a lock at the top of the shaft and to keep air in the shaft, they were guilty of gross negligence and want of proper care and caution, which resulted in the presence of gases in the shaft, causing the death," etc.

The third count alleges that the intestates were directed to go down the shaft referred to, and that at that time the shaft was filled with deadly gas, which fact was unknown to the intestates, and they were overcome by the gas and died in the shaft; that shortly before defendants directed the intestates to descend the shaft, they had been informed that the decking of the caisson, at the bottom of the shaft, was burning, and they had reason to know that fumes and gases would be generated from such burning deck of a dangerous and deadly character, but that the intestates were in ignorance of these facts, and so went to their death.

The plaintiffs introduced their evidence, but the defendants introduced none. At the close of the introduction of the evidence the defendants moved for a peremptory instruction which was granted by the trial judge. A verdict was accordingly rendered by the jury, and on this a judgment was based dismissing the cases of the plaintiffs. An appeal was prosecuted to the Court of Civil Appeals, and there the judgment was affirmed. The case was then brought to this court by the writ of certiorari.

In order to properly understand the controversy, it is necessary to explain the structure referred to in the declaration, and the nature of the work in which the intestates were engaged.

Pier No. 5, at the time the accident occurred, was within a day or two of completion. It was 46 feet one way and 25 feet the other, and extended down into the bottom of the river 85 feet, counting from the top of the pier. The method of construction was this: The first thing was the sinking of a caisson in the bottom of the river. On the top of this there was a structure of heavy timber, called decking. On this decking there was erected a wooden form into which the concrete was poured. The weight of the concrete caused the caisson--on the bottom of which was what is called a cutting edge--to sink deeper. As the pier sank the wooden form was built higher, and the concrete filled into it, and so on until it had reached a point sufficiently high above the surface of the river. But it was necessary that men should go down into the caisson in order to eject therefrom sand, mud, stone, and pieces of wood, and whatsoever else might be found therein. Access to this caisson, called the work chamber, was given to the men by placing in the middle of the pier a steel pipe 3 feet in diameter, called the man shaft. This was made up of jointed sections 8 feet each in length, and, as the pier sank, the other sections were added at the top and so on, so as to keep the top of this pipe above the water. Inside of this shaft there was a ladder by means of which the men descended into the caisson, or work chamber, at the bottom of the river, and on which they ascended to the surface again.

At the time the accident occurred, the caisson, or work chamber, was then at a depth of 85 feet. Various sections had been added to the man shaft. About 40 feet from the bottom of this shaft there was located what was called the lock. This lock had two purposes. The main one was to gradually accustom the men to breathing the compressed air which they would have to encounter in the caisson, or work chamber. When they entered the lock they were required to open a valve which let into the lock compressed air from the work chamber, which mixed with the ordinary air, and after they had thus experienced this mixture of common air and compressed air for a time they were fitted to open the door of the lock and descend into the work chamber, and could then breathe the compressed air without discomfort. The same plan was followed when they were about to ascend to the surface. That is to say, they stopped in the lock for a while and admitted the common air from a valve on the upper side, and thus mixing it with the compressed air they became sufficiently accustomed to the natural air to enable them to breathe it without discomfort, and they would then open the door and go into the part of the shaft lying just above the lock, and they would then climb the ladder and ascend to the surface again.

At this point it is proper to state that the compressed air was used, not only for breathing, but also to aid in the work in other ways. By its use sand and water were expelled from the caisson, by means of a pipe or hose, and by the force exercised through its pressure, water was kept from flowing into the caisson, thus enabling the men to work and dispose of sand, mud, dirt, and other things in the bottom of the caisson; likewise at periodical times the pressure of the compressed air was slackened, and this had the effect of sinking the caisson deeper and introducing more sand and mud and other matter for removal.

The compressed air was introduced into the work chamber by means of a pipe which ran down through the pier on a line parallel with the man shaft, but separated from it a considerable distance, perhaps 3 feet. This air shaft passed down through the wooden decking into the workroom. It was, of course, covered with concrete along with the man shaft and other parts of the structure as the pier was built up, and it was added to in sections from time to time as the pier sank, so as to keep its upper end above water. Still further from the man shaft, and running parallel with the air shaft, some distance from it, was the material shaft which was also a steel tube leading from the surface down into the work chamber. This was fiitted with a bucket which was lowered and raised by an engine at the top. This bucket was used to carry from the work chamber pieces of stone and wood, and other heavy objects that could not be expelled by compressed air. This had a lock at the top.

The men were accustomed to work in shifts of nine, and at the expiration of each 2 hours were relieved by another shift of the same number.

On the morning of April 6, 1914, at 6 o'clock, the customary shift descended to the workroom. They were to be relieved at 8 o'clock. Sixteen minutes before 8 o'clock Smith the lock tender of the gang then in the work chamber, accompanied by Lewis, another member of that gang, ascended to the surface through the man Shaft. A few minutes after Smith and Lewis had so left and ascended to the surface the compressed air in the work chamber was slacked as usual, and as a consequence the work chamber descended further into the bottom of the river, the result of which was that additional material accumulated which was to be removed by the shift which was expected to descend at 8 o'clock. The men who were in the work chamber, so expecting to be relieved, were not relieved by the arrival of the expected new shift. They remained in the chamber from an hour and 20 minutes to an hour and a half before they had any means of escape. They could not go up through the man shaft in the usual way because their lock tender, Smith, had carried with him the key to the door which opened into the lock, so they waited, and finally they received a note sent down through the material shaft with the bucket notifying them to ascend to...