P. Bannon Pipe Co. v. Moorman

• Decision Date: 15 January 1918
• Citation: P. Bannon Pipe Co. v. Moorman, 178 Ky. 637, 199 S.W. 802 (Ky. Ct. App. 1918)
• Parties: P. BANNON PIPE CO. v. MOORMAN.
• Court: Kentucky Court of Appeals

199 S.W. 802

178 Ky. 637

P. BANNON PIPE CO. v. MOORMAN.

Court of Appeals of Kentucky.

January 15, 1918

Appeal from Circuit Court, Jefferson County.

Action by Myron W. Moorman against the P. Bannon Pipe Company.Judgment for plaintiff, and defendant appeals.Reversed, with directions.

Fred Forcht, of Louisville, for appellant.

S. L Trusty and Edwards, Ogden & Peak, all of Louisville, for appellee.

THOMAS J.

The appellee and plaintiff below, Myron W. Moorman, was employed by appellant, the defendant below, P. Bannon Pipe Company, to fire and look after defendant's boilers used in operating its machinery for the manufacture of sewer piping and brick, in which business it is engaged in the city of Louisville.There were a number of boilers encased in brick located in the boiler room where plaintiff worked.The brick incasement was about eight or nine feet high from the floor of the room, which was brick.Two or more windows opened into the boiler room, and there was also a skylight above which contributed to the furnishing of light in the room.

About 5 o'clock p. m. on June 9, 1915, plaintiff, with one Wilson, who was the chief engineer having charge of all of defendant's machinery, went to the boiler room for the purpose of draining the boilers and cleaning out the pipes they having received notice that there was soon to be an inspection of the boilers.The machinery was shut down, and had been for some little time, but with the boilers partially filled with water.No machinery of any character was in that room except the boilers.The method of draining the boilers was through a blow-off valve connected up with pipes which ran the water to a ditch or sewer on the outside of the room but in close proximity to the point where the blow-off valve connected with the pipes they crossed and formed a T with an end of one of the pipes connecting with no other object, making what is called in the record a "dead end," which was stopped with a plug screwed into it, the plug having to be inserted or removed with a wrench.On the top of the boilers was a valve, the plug in which would be removed by turning a wheel connected with it.But little and sometimes no water would drain through the valves from the boiler until the valve on top of the boiler would be opened so as to let in air, enabling the water to flow.Near the wall in the boiler room there was located a ladder made of oak, about 30 inches wide and 9 feet long, one end of which rested on the brick floor, and the other against the top part of the brick casing inclosing one of the boilers, and this was the only means by which one could get on top of the boiler.The drainage valves as well as the dead-end pipe were located near the side of the ladder, and could be seen by one ascending or descending it.When plaintiff and Wilson arrived at the boiler room, it was soon discovered that the water would not flow, and the latter suggested to plaintiff that he open the valve on top of the boiler, which he proceeded to do by ascending the ladder, and, after accomplishing his purpose, he started to descend the ladder, and, as he claims, when he put his foot upon the top step, it slipped on the floor so as to cause the top end to drop a foot or more, and plaintiff jumped to the floor, causing considerable damage to both his legs and feet.To recover damages for the injuries sustained he filed this suit, alleging that defendant was negligent in failing to furnish him a safe place in which to work and making the place unsafe by causing, permitting, or suffering water to accumulate on the floor of the boiler room and around the foot of the ladder, making the surface of the floor slick, and causing the ladder to slip and give way when plaintiff stepped upon it.

The answer traversed the allegations of the petition and contained a plea of contributory negligence and one of assumption of risk.These, being denied by a reply, formed the issues, and the trial resulted in a verdict and judgment in favor of plaintiff for the sum of $2,400, to reverse which this appeal is prosecuted by defendant.

Several complaints are found in the motion for a new trial, but the grounds for a reversal urged before us are: (1) That the court erred in overruling defendant's motion for a peremptory instruction; (2) error committed by the court in refusing to set aside the impaneling of the jury and continue the case upon motion made for that purpose because of a statement made by a physician witness for plaintiff while giving his testimony to the effect that he had collected a part of his fee for services rendered to plaintiff"from the insurance company," it being insisted that this was tantamount to bringing before the jury the fact that plaintiff carried indemnity insurance.

The testimony develops substantially these additional facts Plaintiff was 37 years of age, and a man of at least ordinary intelligence.He had been at work in the particular boiler room for about nine months, and had experience at similar work under other employers.His testimony shows, and there is nothing appearing to the contrary, that he was perfectly familiar with the boiler, the pipes, and all of the machinery and apparatus connected therewith.His duties were not merely to fire the boilers, but also to supply them and keep them supplied with water, and to drain them when necessary.The dead-end pipe mentioned was primarily for the purpose of cleaning out scales from the pipe, and perhaps from the boiler, when such would collect, which the proof shows to have been more or less frequently and this was accomplished by unscrewing the plug from the dead end and inserting a rod of some kind by which the scales were loosed or removed.This had been done by plaintiff, according to his testimony, "many times."It is shown undisputedly that when the valve on top of the boiler would be open water would run from the dead end pipe if opened, and there is no doubt but that it was from this source the water came that wet the floor on the occasion of the accident.It seems that no one had any right to be in the boiler room or to manipulate any of the pipes or machinery except Wilson and plaintiff, and the former states positively that neither immediately before nor at the time of the accident did he open the dead-end pipe, and plaintiff's testimony is to the same effect concerning himself.However this may be, true it is that when the valve on top of the boiler was open water began to run from the dead-end pipe, but there is no proof showing that Wilson or any person representing defendant knew it at the time.On the contrary, the proof is that no such knowledge was possessed.Plaintiff says in his testimony that on the day he accepted employment, nine months before the accident, speaking to Wilson, the engineer, concerning the ladder, he said: "That [the ladder] would make--give a man a dirty fall if it should slip out with him."And that Wilson said in answer, "Go ahead; as long as that floor is dry that ladder is all right, safe; be careful if the floor is wet."It is shown and uncontradicted that pl...