Phares v. Century Electric Co.

• Decision Date: 03 October 1939
• Docket Number: No. 25136.,25136.
• Citation: 131 S.W.2d 879
• Parties: PHARES v. CENTURY ELECTRIC CO.
• Court: Missouri Court of Appeals

131 S.W.2d 879

PHARES v. CENTURY ELECTRIC CO.

No. 25136.

St. Louis Court of Appeals. Missouri.

October 3, 1939.

Rehearing Denied October 17, 1939.

Appeal from St. Louis Circuit Court; Thos. L. Anderson, Judge.

"Not to be published in State Reports."

Personal injury action by George Washington Phares against Century Electric Company, a corporation. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Wayne Ely, of St. Louis (Leahy, Walther, Hecker & Ely, of St. Louis, of counsel), for appellant.

Mason & Flynn and I. R. Goodman, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on September 16, 1926, as the result of an electric shock received while attempting to carry out an order of his foreman to put an electrode in an electric furnace in defendant's plant without first shutting off the power in the furnace standing closely adjacent to it. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $3,500. Judgment was entered accordingly, and defendant's appeal to this court has followed in the usual course.

This, incidentally, is the third appeal in the case. At the first trial plaintiff recovered judgment for the sum of $9,500, from which defendant appealed to the Supreme Court, wherein the judgment was reversed and the cause remanded upon the ground of error in the giving of a certain instruction for plaintiff. Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91. At the second trial there was a judgment for defendant, from which plaintiff appealed to the Supreme Court, wherein the judgment was reversed and the cause remanded upon the ground of error in the giving of a certain instruction for defendant. Phares v. Century Electric Co., 341 Mo. 990, 111 S.W.2d 11. Then followed the third trial, at which plaintiff again prevailed, but, as we have indicated, for a sum which in this instance invests this court with jurisdiction over the appeal.

Plaintiff was employed as a furnace tender, having first worked under one Althaus as his foreman, and later under one Pippin, who was actively supervising his activities at the time his injury was received.

Plaintiff's duties required him to tend three electric furnaces, designated as Nos. 1, 2, and 3, which extended from east to west on the floor of defendant's plant, and were placed end to end about five feet apart. No. 1 furnace stood to the east, No. 2 in the middle, and No. 3 to the west. The furnaces were barrel-shaped, about four feet in length, and three or three and a half feet in diameter, and had openings in the top through which was poured the bronze or brass which was to be melted at any given operation.

Generally speaking, it was plaintiff's duty as furnace tender to stock the furnaces, charge them and watch them, keep an eye on the meter to see that the power did not get too high, and pour metal. After putting the metal in the furnaces and charging them, plaintiff would turn the power on by means of a switch located on the south wall, and the furnaces were so constructed that once the power was applied, they would rock in their frames from side to side in order to prevent the molten metal from adhering to the inner walls of the furnaces. With the degree of heat employed, brass would melt in forty-five to sixty minutes and bronze in thirty-five to forty-five minutes; and after the metal had melted, it would be emptied into a melting pot, and thence poured into the moulds.

The heat was supplied by means of carbon electrodes which, when new, were about three feet long and two and a half or three inches in diameter. The electrodes were inserted in the ends of the furnaces, and, when first inserted, and before any part of them had burned away, would extend out some eighteen or twenty inches beyond the housing. As they grew shorter with use, the furnace tender would keep the opposite electrodes moved together by turning a wheel located on the housing on the end of the furnace, and the arc of electricity between the ends of the electrodes in the center of the furnace created the heat by which the metal was melted.

It was plaintiff's duty to watch the electrodes and replace them as they burned out, which happened practically every day in the case of the electrode in each furnace. The replacement of an electrode of course required that plaintiff shut down the furnace into which it was to be inserted, and, in addition, in order to eliminate all danger of contact between his body and any live part of the adjoining mechanism, he usually turned off the furnace adjacent to it. Such, in fact, had been the instructions to him from his original foreman, Althaus, when he first went to work as a furnace tender, and, so far as he could recall, he had invariably followed that practice — which only required that both furnaces be shut down for a minute or two — during the whole of the year that he had been employed on that particular job.

Early in the afternoon of the day in question plaintiff had replaced the electrode in No. 3 furnace, which, being new, extended out beyond the end of the furnace for eighteen or twenty inches as we have already pointed out. No. 1 furnace was not operating at the time.

About an hour later it became necessary for plaintiff to replace the electrode in No. 2 furnace. No. 3, of course, was in full operation, and was rocking from side to side as the metal which had been poured into it became molten. Foreman Pippin happened to be standing right in front of No. 3 furnace at the moment, and, recalling the usual practice in such matters, plaintiff inquired of him whether it would not be advisable to shut the power off of No. 3 until the replacement of the electrode was completed in furnace No. 2. Pippin's answer, according to plaintiff's testimony, was, "Hell, no, we ain't got time, you go ahead and I'll watch you."

Plaintiff testified that he appreciated the possibility of injury or death if his body should come into contact with the electrode protruding from No. 3 furnace while it was operating, but concluded that with Pippin there watching his movements, he could replace the electrode in No. 2 furnace without getting a shock.

With the adjoining furnaces only five feet apart from end to end, with the new electrode protruding out of the end of No. 3 furnace for eighteen or twenty inches, and with the one he was about to insert in No. 2 furnace being three feet in length, it was inevitable that in undertaking to get the latter electrode in position to be inserted in No. 2 furnace, the end of it would be brought in close proximity to the end of the electrode extending out of No. 3 furnace. Even so, plaintiff testified that it would have been entirely possible for him to have stood so that his body would not make contact with the other electrode, and that his idea was that if at any time he should be about to get into a position of danger, Pippin, who was observing all his movements, would give him a timely warning before any harm befell him.

Under these circumstances plaintiff undertook to make the replacement even though Pippin would not permit No. 3 furnace to be shut down, and had proceeded to the point where he was standing directly between the two furnaces screwing the electrode into furnace No. 2. As he was in the act of doing so, his body in some manner came in contact with the electrode protruding from No. 3 furnace, causing him to receive a severe shock which knocked him to the floor and rendered him unconscious, producing the injuries for which he seeks to be compensated in this proceeding.

The negligence pleaded and relied upon by plaintiff was the act of defendant, through its foreman, in ordering and directing him to insert the electrode in furnace No. 2 while furnace No. 3 was in operation and charged with a current of electricity.

Defendant's answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff's injuries were the direct result of his own negligence in having attempted to insert the electrode in furnace No. 2 while furnace No. 3 was in operation and charged with a current of electricity, and in having permitted the electrode he was attempting to insert in furnace No. 2 to come in contact with the electrode of furnace No. 3 while the latter was in operation and charged with a current of electricity.

The matters actually contested at the trial were whether Pippin had actually given the order in question; whether plaintiff had in any event been in the exercise of due care for his own safety, not only in undertaking to replace the electrode in furnace No. 2 while furnace No. 3 was in operation, but also in allowing himself to get into such a position as to come in bodily contact with the electrode extending out of furnace No. 3; and whether he had been as severely injured as he claimed. That Pippin gave the order, while expressly denied by him, was unquestionably supported by substantial evidence on plaintiff's part; and in challenging the propriety of the submission of the case to the jury, defendant insists only that plaintiff should be adjudged guilty of contributory negligence as a matter of law.

In the determination of the first appeal in the case the Supreme Court expressly decided that plaintiff had not been guilty of contributory negligence as a matter of law (Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91), and it goes without saying that such decision is now the law of the case, unless upon the retrial now before us for review there was such a substantial difference in the testimony from that considered by the Supreme Court on the appeal to it as to have affected the basis for the court's decision. Indeed defendant recognizes full well the binding force of the Supreme Court's ruling upon the facts from which it reached its conclusion upon the issue of contributory negligence, but it...