Simmons v. Doullut & Ewin, Inc.

• Decision Date: 24 January 1933
• Docket Number: 1063
• Citation: 145 So. 708
• Parties: SIMMONS ET EX. v. DOULLUT & EWIN, INC., ET AL
• Court: Court of Appeal of Louisiana — District of US

145 So. 708

SIMMONS ET EX. v. DOULLUT & EWIN, INC., ET AL

No. 1063

Court of Appeal of Louisiana, First Circuit.

January 24, 1933

For opinion denying rehearing, see 146 So. 772.

Chas A. Holcombe, of Baton Rouge, for appellants.

Taylor Porter & Brooks, of Baton Rouge, for appellees.

OPINION

MOUTON J.

As contractor for the construction of the State Capitol in Baton Rouge, the George A. Fuller Company employed the Doullut &amp Ewin company, as subcontractor, to drive the piles which were necessary for the erection of the building.

Stanly K. Simmons, son of plaintiffs, Roscoe T. Simmons and his wife, received an injury while working under the pile driver from which he died two or three days after the accident. His surviving parents have instituted this suit for damages for the death of their son, against the Doullut & Ewin company and the Union Indemnity Company, claiming $ 10,000 as damages and recovered judgment below for $ 5,000, in solido, against the Doullut & Ewin company and the Union Indemnity Company, from which this appeal is taken.

In answer to the appeal, plaintiffs are asking for an increase of the judgment to the amount claimed with legal interest.

A hammer weighing sixteen thousand pounds was used by the Doullut & Ewin company to drive concrete piles in the ground for the erection of the State Capitol building. There were several keys in the hammer, among which were incased Channel iron keys which are about eighteen inches long. During the hammering of a pile one of these Channel iron keys broke in two; one portion about nine inches in length fell on the back of Stanly Simmons' head, causing a fracture at the base of the skull from which he died about three days thereafter.

William Autrey was the pile driver engineer for the Doullut & Ewin company when Simmons suffered the injury. He did not see the accident, but testifies that he personally took out the portion of the key which had remained incased in the driver. He explains that in driving concrete piles the vibration is so great that crystallization occurs, causing these keys "to break on that type of hammers very often."

He is very positive that during operation of the machinery it would be impossible to detect the crystallization of a key or to know it is about to break. On this question, speaking of the key, he says: "You can take it out half a minute before it comes in two and you won't see nothing broke about it and all of a sudden it breaks." These keys, he explains, are incased, except that the ends stick out on each side, and if one breaks during operation, it cannot be seen; the only thing, he says, you could see, "if you were looking at it, you might see it working out."

Stanly Simmons was, at the time of his injury, an employee of the George Fuller Company and was not in the employ of the Doullut & Ewin company, one of the defendants.

W. W. Klim, who was then building superintendent of the George Fuller Company on the Louisiana Capitol project, testifies that in a conference with J. P. Ewin, vice president and general manager of the Doullut & Ewin company, and Brown, his second superintendent, it was agreed they would do everything they could to keep all their workmen from going under the pile driver while it was in motion or operation. He says he was acquainted with Simmons, who was employed as a helper to the field engineer in laying locations with stakes for the concrete piles "where to be driven"; that with Cotting, the immediate superior of Simmons, they gave Simmons instructions to keep at a safe distance from the pile driver while in operation. It is, however, shown that when Simmons was injured he was actually under the pile driver then in operation helping Cotting, his immediate superior, in setting out a stake for the pile driver.

It is shown by Higginbotham, also working under Cotting, employee of George Fuller Company, laying piles for the pile driving subcontractor, and who had relieved Simmons a short while before the accident, that he had to be, as he expresses it, "underneath the driver lots of times most of the time."

Harris and Williams, other employees of the George Fuller Company, testify practically to the same effect and say they were expected to go under the pile driver while in operation to set out these stakes.

The fact is that these stakes after being set out were sometimes disarranged by the movement of the earth, as explained by these employees, which required them to reset or relocate them to their original position. Evidently, this imposed additional exposure to the accidents that might result to those working under the pile driver while in operation.

Fecundus, an employee of Doullut & Erwin company and not in the employ of the George Fuller Company, testifies that he was required by Peck Rudy, foreman of defendant company, to go under this pile driver while in motion, not once but several times. In testifying about the conference between him and the officers of the Doullut Company, W. W. Klim, building superintendent of the George Fuller Company, to whom we have hereinabove referred, in speaking of the instructions they had agreed to give their employees to keep away from the pile driver, says as follows: "Similar instructions, if given by the Doullut and Ewin man in charge were to be obeyed by our men." This testimony shows that the two companies were working in cooperation, and had both a vital interest in the driving of these piles.

The fact is that in the agreement between the companies by which the Doullut & Ewin company was engaged as a subcontractor, the following stipulation is found:

"It is understood that time is the essence of this contract, and failure on the part of the sub-contractor to fulfill the time requirements shall entitle the contractor to damages etc."

The preponderance of the evidence clearly shows that there was a continuous rush; that the pile driver was kept going most of the time in the driving of these piles. This rush to get through with the driving of the piles within the time stipulated was obviously to avoid the penalty attached to any delay in the completion of the work by the subcontractor and in which the contractor seemed to have had a vital interest, which accounts, as we see it, for the conduct of Cotting in permitting Simmons, Higginbotham, and other employees of the George A. Fuller Company to go under the pile driver while in operation, and of Peck Rudy, foreman of the Doullut & Ewin company, in requiring Fecundus to expose himself to the same dangers.

It clearly appears from the record that if the pile driver had been stopped or had come at rest when Simmons and the other stake spotters were under the pile driver, they would have been in perfect safety from any accidents. The period of rest of the machinery would have been only five minutes to guarantee these employees from injury.

Cotting testifying on this subject, says, if he had stopped the machinery for that period of time he would have been on the job about five minutes, which unquestionably shows that time...