Republic Iron & Steel Co. v. Lulu

• Decision Date: 16 November 1910
• Docket Number: No. 6,683.,6,683.
• Citation: 92 N.E. 993,48 Ind.App. 271
• Court: Indiana Appellate Court
• Parties: REPUBLIC IRON & STEEL CO. v. LULU.

48 Ind.App. 271

92 N.E. 993

REPUBLIC IRON & STEEL CO.

v.LULU.

No. 6,683.¹

Appellate Court of Indiana, Division No. 2.

Nov. 16, 1910.

Appeal from Superior Court, Lake County; H. B. Tuthill, Judge.

Action by Stanti Lulu against the Republic Iron & Steel Company. From a judgment for plaintiff, defendant appeals. Affirmed.Peter Crumpacker, D. J. Moran, and Richard Jones, for appellant. F. N. Gavit, W. J. McAleer, and J. E. Westfall, for appellee.

RABB, J.

The appellant is engaged in the manufacture of iron and steel products, and for this purpose maintains a large rolling mill and iron furnace. In the process of manufacturing this product, the raw material is melted in the furnaces to a liquid form, and foreign substances, which are known as “slag,” are separated from the pure iron, and drawn from the furnace while in a molten state into a pot, known as a “cinder pot.” The appellant's cinder pot, involved in this case, was sunk in the ground until the top of the pot was on a level with the surface of the ground, and located outside of the walls of appellant's building inclosing its furnace, so that it was exposed to the weather. The slag, after it is cool enough to handle, is removed from the cinder pot to the dump pile, and for convenience in handling it, while it is still in a liquid state, an iron link is suspended in the molten mass, from a bar placed across the top of the pot. Around this link the slag gathers, and hardens as it cools. It appears that, while the slag is in a molten state, its contact with water is harmless; but there is a certain stage in the process of its cooling when contact with water will cause a dangerous explosion. Appellee was engaged in appellant's service in charge of the cinder pot, and, while engaged in the duties of his service, was severely injured by the explosion of the slag, caused by his stepping into a pool of water near the cinder pot, which had gathered there from a recent rain, and which caused the water to splash into the cinder pot on the hot slag. This action was brought by appellee to recover damages for the injuries thus sustained, claiming that the same resulted from negligence on part of the appellant, in failing to warn appellee of the danger. The case was put at issue, a trial had, resulting in a verdict in favor of the appellee.

In this court the sufficiency of the complaint is assailed, as is also the ruling of the court below on appellant's motion for judgment in its favor on the answers returned by the jury to interrogatories submitted to them, and on its motion for a new trial. The complaint set forth facts showing the nature of the appellant's business, and appellee's employment, and the nature of the material appellee was required to work with and about in his employment, in reference to its explosive character, and that the iron vessel in which the slag was run from the furnace was located as heretofore stated, and that it was sunk in the earth until its top came on a level with the surface of the ground. It was further alleged that the ground around the vessel was packed and hardened, and of an uneven surface, so that water which fell when it rained would stand in pools in such uneven places on the ground around the cinder pot for a day at a time, after the rain was over. All such conditions, it is charged, were known to appellant. It narrates the circumstances attending the accident, resulting in appellee's injury, and expressly charges that appellee was ignorant of the liability of the slag to explode on coming in contact with water, and charges that appellant knew of this quality in the slag and of the danger arising therefrom, and negligently set appellee to do the work in which he was engaged, knowing him to be ignorant of the explosive character of the slag on its coming in contact with water, without informing him of such explosive character, or warning him of the danger, and that plaintiff stepped in the water by reason of the negligence of the defendant in so failing to instruct or warn plaintiff, and “that his injuries were caused by the negligence above alleged.”

It is insisted that the complaint is insufficient to withstand demurrer: First, because it fails to show that the injury complained of did not result from an assumed risk of the employment; second, that it fails to show that the injury was proximately caused by the negligence averred; and, third, that it affirmatively appears that the injury was the result of an accident, not reasonably to have been anticipated as a result of the negligence charged, and therefore created no liability against appellant.

In support of its first contention, appellant maintains that the danger of injury from the explosive character of the slag was an ordinary risk of appellee's employment, which he assumed when he accepted the employment. It is argued that a liability to explode was inherent in the thing appellee's employment required him to work with and around, and we are cited to the case of Myers v. W. C. DePauw Company, 138 Ind. 590, 38 N. E. 37, as decisive authority for this contention. The case cited involved an injury to an employé in a plate glass factory, whose duties required him to handle plate glass, and who was injured by the glass breaking and cutting his hand. It was there held that the master was under no duty to inform the servant, when entering his service, of the danger arising from the liability of the glass to break. The court, in deciding the case, say: “It is a matter of common observation that glass is a fragile substance, and that its broken edges are sharp and dangerous. It is necessarily one of the natural incidents of the handling of glass in the process of its manufacture that it will be broken without violence from or fault of those who handle it.” And it is for this reason that the court holds in that case that no duty to instruct or warn the employé rested on the master. The servant could, by looking at the glass, see the danger. It was a matter of common knowledge. Such, however, is not the character of the substance with which the appellee's employment in this case required him to deal. The court cannot say that the slag or cinders were inherently explosive, nor is it a matter of common knowledge that hot slag will explode, or that it will explode when brought in contact with water, and it could not be told by looking at the substance that it possessed this quality. In fact, it appears that it is not explosive when brought into contact with water, except under certain conditions; but when these conditions exist-that is, when it has sufficiently cooled as to become hardened on the surface-then, if it come in contact with water, a dangerous explosion is inevitable. If this peculiar quality of the slag is known, danger to those who handle it, arising from this cause, can easily be avoided. In fact, if proper care is used, the danger may be eliminated; but, if it is not known, and conditions are such that water may be brought in contact with the slag when it is in that peculiar state that contact will cause an explosion, danger is even present, while the conditions exist, and is present only because of the ignorance of those whose movements around the water and hot slag when they are in such proximity may bring the hot slag and water in contact with each other. The position of the man who is ignorant of the explosive character of the slag, and who works around it, under such conditions, is somewhat similar to that of a soldier, who, charging an enemy's fort, treads over ground underlaid with torpedoes, or a ship sailing over a harbor that has been mined.

The averments of the complaint are the appellant set the appellee to work with this slag pot with the hot slag in it, and, when in the course of appellee's work with and around it, the slag necessarily comes into that state when it will explode if brought in contact with water, it has the top of the pot made level wih the surface of the ground, and the ground around it filled with pools of water, the appellee ignorant of the danger resulting from the contact of the water and the slag; appellant knowing the conditions, knowing the explosive quality of the slag, and knowing appellee's ignorance of its possessing this quality.

The law requires of the master, at the inception of the relation, or when the work of his employment is assigned an inexperienced servant, that he inform such servant not only of extraordinary dangers, but of the ordinary dangers that are likely to arise in the work, and which the servant cannot see and understand without such information. 2 Bailey on Personal Injuries, § 2665; Buswell on Personal Injuries, § 202; Wharton on Negligence, § 208; Wood on Master & Servant, § 349; Labatt on Master & Servant, § 240, and cases cited; St. Louis, etc., v. Valirious, 56 Ind. 511;Salem v. Griffin, 139 Ind. 141, 38 N. E. 411;Smith v. Peninsula, etc., 60 Mich. 501, 27 N. W. 662, 1 Am. St. Rep. 542;Parkhurst v. Johnson, 50 Mich. 70, 15 N. W. 107, 45 Am Rep. 28.

The conditions shown by the facts averred in the complaint clearly imposed the duty upon the master to put his ignorant servant upon the same footing with himself with reference to knowledge of the danger; to arm him with the knowledge necessary to enable him to protect himself from the danger. Do the facts averred show the injury complained of was the proximate cause of the negligence charged? The proximate cause of a given result may not be the immediate cause. “Proximate cause,” within the meaning of the expression...