Philyaw v. Arundel Corporation

• Decision Date: 24 June 1931
• Docket Number: No. 3135.,3135.
• Citation: 51 F.2d 183
• Parties: PHILYAW v. ARUNDEL CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

51 F.2d 183 (1931)

PHILYAW v. ARUNDEL CORPORATION.

No. 3135.

Circuit Court of Appeals, Fourth Circuit.

June 24, 1931.

D. W. Robinson, of Columbia, S. C. (Joseph T. Davis, of St. Louis, Mo., and W. H. Nicholson, of Greenwood, S. C., on the brief), for appellant.

R. B. Herbert, of Columbia, S. C. (Herbert & Dial, of Columbia, S. C., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The administrator of Durand Philyaw brought a suit subsequently removed to the federal court against Arundel Corporation charging that Philyaw was killed by reason of the failure of the defendant to furnish him with a safe place to work when acting as its employee in the operation of a steam shovel in the construction of a dam across the Saluda river in Lexington county, S. C. There was no complaint that the machinery was defective, but it was said that the deceased was an inexperienced employee and was not properly warned as to a certain danger attending the adjustment of the apparatus upon which he was engaged as an assistant at the time of the fatal injury.

The steam shovel was of the usual construction and contained three engines. Two were in the cab of the machine and were used to operate the boom and the bucket at the end of the dipper stick. The third engine was located on the boom between two parallel steel beams about two feet apart, which formed the framework of the boom. Just outside of the beams and alongside of the engine on either side, two bull wheels were mounted. This arrangement was used for the operation of the dipper stick which was so adjusted that it slid back and forth between the wheels in order that the bucket at the end might reach the earth to be excavated and be withdrawn to deposit it at the point desired. Over the boom engine between the steel beams and the bull wheels, there was a grease cover or lid designed to keep out the dirt, which was four feet long and twenty inches wide and weighed about fifty pounds.

C. E. Heath operated the engines in the cab and had full charge of the work, while J. T. Lee, an experienced engineer and machinist, ran the engine on the boom. Philyaw was subject to the orders of both. On the morning of the accident, the dipper stick worked sluggishly and Lee believed that the difficulty was due to a tight bearing. Consequently he gave the proper signal and stopped his engine; whereupon Heath stopped the engines in the cab and the machinery came to rest. Lee then got certain tools and ascended to a place on the boom alongside and to the left of the engine, facing the bucket or shovel. He reached over the steel beam, lifted up the cover of the engine, and supported it upon his arm and shoulder while he tried to make adjustments to the machinery. At this moment Philyaw, the deceased, came up on the right-hand side of the boom opposite to Lee, whereupon Lee told him to hold the grease cover and was thereby left free to use both hands upon the engine. Philyaw obeyed, thrusting his arm between the spokes of the right-hand wheel. Since the men were scarcely two feet apart, Philyaw's attitude was easily visible to Lee. In fact, in one part of his evidence, which is not altogether consistent on this point, Lee gave testimony tending to show that he knew that Philyaw's arm was between the spokes of the wheel. If he did not know it, it was only because he was intent upon the engine rather than upon the safety of his assistant. Philyaw's action was a dangerous thing to do, as it afterward transpired, notwithstanding the fact that the machinery was not in operation. The dipper stick was so adjusted that when the power was shut off, the stick would slide one way or other, turning the wheels until it reached the center of gravity and was supported at a point of balance. On the occasion in question, it turned out that the dipper stick was stuck, and when the pressure was released, it slid naturally into a place of rest, causing the accident.

Although Lee knew of the danger, he gave no warning to Philyaw but proceeded with the work. There were a number of other ways in which the cover could be safely held up, but the evidence shows that it was a natural and not an unheard of thing for a person to put his arm through the spokes of the wheel while at rest. Lee testified that although he knew the danger, he himself had put his arm in this position both before and after the boy was killed.

Lee believed that there was a tight bearing, by reason of which the dipper stick would not pass back and forth through the boom easily and to its full extent. In order to ascertain whether his theory was correct, he used a hammer upon the connecting rod, knowing that if in fact the trouble was caused by the bearing being a little too tight, the tap of the hammer would tend to make the engines move. As a matter of fact, when the hammer was used the engines did move at once. The dipper stick slid in towards the cabin, and the bull wheels revolved, catching the arm and shoulder of Philyaw between the spokes of the wheel on his side and the boom of the steamshovel, so that he was crushed and killed.

There seems to be no doubt from this recital of the facts that the evidence tended to show negligence on the part of Lee, an experienced man, in ordering or permitting his assistant to thrust his arm between the spokes of the wheel while the engine was being tested. It seems equally clear, from the following recital of facts, that the evidence tended to show that Philyaw was an inexperienced workman, unaware of the risk which he ran. He had never been warned as to the danger of putting his arm through the spokes of the wheel. He was nineteen years of age and an intelligent boy. He had graduated from high school on May 20, 1929; had gone to work on June 1, and was killed on October 24. He had had no training as a machinist, and this was his first job. The only warning which he had received prior to the accident was a general one that he should stand clear of the shovel when the train of cars came in to receive the dirt to be carried away. His work was that of an oiler and it was his duty to oil the machinery while it was at rest between the departure of one train and the arrival of another. This general warning was of no help in this case for the reason that the machine was not in operation at the time, and the warning thereafter had no application. He had of course had some opportunity during the term of his employment to observe the general operation of the steam shovel and particularly of the boom, but there is nothing in the record to indicate that he had any reason to believe or suspect that the dipper stick would slide one way or the other when he thrust his arm between the spokes of the wheel. The evidence was not so clear that it could be said as a matter of law that the danger was so obvious to him that he assumed the risk.

At the conclusion of the plaintiff's case, wherein the facts above recited were brought out, the court directed a verdict for the defendant on the ground that there was not sufficient evidence of neglect or failure in any of the duties of the defendant, as master of the deceased, to warrant the case being sent to the jury. We have seen, considering the testimony in the light most favorable to the plaintiff as we are obliged to do, that there was evidence tending to show that the deceased was so inexperienced that he could not be held to have assumed the risk of the accident which caused his death, and also that there was evidence tending to show that the engineer in charge of the boom engine was neglectful in failing to warn the deceased of the risk which he was running at the time of his death. We think that the correctness of the ruling of the court depends in the main upon whether there was a violation of the nondelegable duty of the defendant to warn the deceased as to the hidden danger involved in the work, or whether, on the other hand, the fatal accident was due simply to negligence of a fellow servant for which the defendant was not responsible.

The rules governing the responsibility of the master to furnish a safe place to his employees to work and to warn them as to the dangers of the employment, on the one hand, and the lack of responsibility of the employer for the negligence of a fellow servant of an injured employee, on the other, when the master has once performed his duties, are well established. It has been succinctly said by Judge Sanborn:

"The duty of...