Rogers' Adm'r v. Kosmos Portland Cement Co.

• Decision Date: 23 February 1915
• Parties: ROGERS' ADM'R v. KOSMOS PORTLAND CEMENT CO. [d1]
• Court: Kentucky Court of Appeals

173 S.W. 317

163 Ky. 84

ROGERS' ADM'R v. KOSMOS PORTLAND CEMENT CO. ^[d1]

Court of Appeals of Kentucky.

February 23, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Todd Rogers' administrator against the Kosmos Portland Cement Company. From judgment for defendant, plaintiff appeals. Affirmed.

Benj. F. Gardner, of Louisville, for appellant.

Helm &amp Helm, of Louisville, for appellee.

NUNN J.

Todd Rogers was 17 years of age and above the average in development and intelligence, as well as willingness to serve. He was in the employ of appellee, and on the morning of February 19, 1913, shortly after he reached the plant for duty, he was missed by his associate employés, and, after a search, his remains were found at the bottom of a huge bin completely covered by the crushed stone contained in it. Whether he was suffocated or his neck broken is a matter in dispute, but it is not very material which. In this action to recover damages for his death, the court peremptorily instructed the jury to find a verdict for the appellee, his employer, and the administrator appeals.

Appellant, by his pleadings, sets up numerous acts and conditions of negligence on the part of appellee. Among them are that the boy was ordered and directed to get into the bin in which his body was found; that it was defectively constructed and was a place of danger, and the boy was ignorant of it; that the walkway over the top of the bin was dangerous and unsafe; that the appellee negligently failed to provide a ladder or steps for employés to use in descending into the bin; that the crushed rock and clay were more or less heated and gave forth dangerous gases and fumes. In the alternative it is alleged that the boy came to his death while attempting to descend into the bin pursuant to orders and in the discharge of his duties, or that he fell from the unsafe walkway, or he fell on account of the unsafe means of access to the bin, or was overcome by the gases. By an amended petition it is claimed the boy was young and inexperienced, and his employer negligently failed to warn him of the danger of going into the bin, and that it was negligent in directing him to go into it under the circumstances. But on the trial appellant's efforts were exerted almost wholly in the attempt to show that it was customary for employés to go into the bin to relieve a clogged condition whenever it occurred, and that the boy went into it in obedience to custom, or to directions then given, and that it was a dangerous and unsafe place for the boy, but the dangers were not obvious or apparent to one of his experience.

The contention of appellant is that the proof showed the above state of facts as being the direct and proximate cause of the boy's death, and that the court erred in peremptorily instructing the jury to find otherwise. This being the issue on appeal, it is necessary to give a detailed statement of the facts.

The appellant has a large cement mill, and operates it day and night with a force of from 100 to 150 employés. The boy began work seven or eight months before his death, and was employed at the request of his father. His duties consisted of dumping cars and regulating the discharge from a screw conveyor into the bin in question, and his place of work was on a platform some 30 or 40 feet from the ground floor. From this platform a mixture of clay and limestone crushed to egg size was fed into ball mills. These ball mills were long cylindrical revolving machines, partially filled with hard, round flints or balls. The material being fed into the mills from the platform, and traveling through their length, it was pulverized to pea size, and smaller, by the constantly revolving cylinders and hammering effect of the balls. Before going into the ball mills, the material was mechanically dried, and this, together with the friction of the balls, generated some heat, but the proof shows the material, as it was dropped into the big bin, could be held barehanded without discomfort. The fine material was automatically discharged into a bin at the foot of the ball mills, and from thence elevated by means of a screw conveyor, which reached from the ball mill bin back up to the platform, and thence longitudinally across a large steel bin built alongside the platform. This latter is the bin in which the boy was found. It is 10 feet wide, 20 feet long, and 17 feet deep. The walls of the upper 10 feet are smooth and perpendicular. The lower part is divided into 6 hoppers with sloping sides, 7 feet deep, so that from the outside the bottom part of the bin has a saw-edge appearance with the saw teeth 7 feet long. From the bottom of each of these 6 hoppers, 8-inch spouts lead to as many fuller mills, and the pea-size material, which has been elevated and discharged into this big bin, automatically feeds through these spouts into the several fuller mills for still further pulverization; that is, to the consistency of ordinary commercial cement. There is an incline track leading up to the platform from a point on the outside where the crushed rock and clay in proper proportions are loaded into cars. A hoisting engine on top of the platform operated by Ed Allgood pulled these loaded cars to the platform, and it was the duty of the boy, Rogers, to dump the cars, so that the contents might feed into the ball mills. Allgood and Rogers were the only employés whose duties required them to be on the platform. On top of the bin, and alongside the screw conveyor as it passes full length across the bin, is a 25-inch walkway made of two 12-inch planks 2 inches thick. The screw conveyor box is 22 inches square and covered. At proper distances in the box gates are placed with lifting slide doors. In addition to dumping cars, it was the duty of the boy to lift or close the gates from the conveyor box, in order that the crushed material might be properly distributed into the big bin, and thereby each of the fuller mills below get an even feed. To work the gates, the boy would walk out on this plank platform. Naturally, if one gate was left open too long, the outflow from it would pile up in pyramid or haystack form, with its apex at the mouth of the gate, resulting in the gate being dammed, and the work of the conveyor interfered with. To relieve this, it was proper to close this gate and open others, and by using a hoe with a three-foot handle, which was kept there on the platform, and while standing on the platform, he would smooth off the top of the pyramid. There is no controversy about the fact that as to these duties the boy was fully instructed. This material also had a tendency to pack; that is, sometimes it would not flow freely through the hoppers into the fuller mills below. At times some of it would feed into a fuller mill, leaving a cavity in the bin at the mouth of the spout with the material arched and crusted over, or else the arch would break and leave the material standing in perpendicular walls around the mouth of the spout. In either event, it would cease feeding to the fuller mill. To obviate this, a stick or rod long enough to reach from the walk down to the mouth of the spout was kept convenient and used to punch through the crust or to break down the perpendicular walls and start the material flowing. Whether the boy was instructed in the use of this stick does not appear, but that is immaterial. For if it be conceded that instruction should have been given, it is not claimed that he was attempting to use it, or that it had anything to do with his death. On the contrary, the appellee argues that its presence, and...