Standard Portland Cement Co. v. Foley

• Decision Date: 27 January 1921
• Docket Number: 3475.
• Citation: 270 F. 203
• Parties: STANDARD PORTLAND CEMENT CO. v. FOLEY. [a1]
• Court: U.S. Court of Appeals — Fifth Circuit

270 F. 203

STANDARD PORTLAND CEMENT CO. v. FOLEY. ^[a1]

No. 3475.

United States Court of Appeals, Fifth Circuit.

January 27, 1921

Rehearing Denied February 17, 1921.

Percy Benners & Burr, of Birmingham, Ala., for plaintiff in error.

Erle Pettus, of Birmingham, Ala., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

Defendant in error (herein called plaintiff) obtained judgment against plaintiff in error (herein called defendant) in an action to recover damages for personal injuries, alleged to be due to defendant's negligence.

Plaintiff was employed as an electrician by defendant at its cement plant. A large crane at this plant was operated by an electric motor. It became necessary for plaintiff, in the discharge of his duties, to get upon a small elevated platform about 3 feet wide by 7 feet long in order to examine this motor, and, if necessary to repair it. On this platform were a tool box, about 18 inches wide, 12 inches deep, and 30 inches long, and an exposed breaker coil, charged with a current of about 500 volts of electricity. A revolving steel shaft was in immediate proximity to the platform, and on this shaft at this particular point was a collar. A projecting set screw which was unguarded and unprotected, held or fastened the collar to the shaft. The shaft was 3 inches in diameter, the collar 6 inches in diameter, and the set screw extended out from the collar from 1 1/8 to 2 inches.

Plaintiff had no duty with respect to the shaft or the collar; his sole duty on this platform was in connection with the motor, which it was proper, and perhaps necessary, for him to examine while the machinery was in motion. Plaintiff worked on the motor from about 3 o'clock in the afternoon until about 9:30 the next morning, during which time he had taken it down, and had just put it back in its place, and, in order to test it, had the machinery running and the shaft revolving, and, while looking into the motor and examining it, plaintiff's right arm was caught by the set screw, wound around the shaft, and seriously injured.

There was testimony that the set screw was hidden from plaintiff's view by a gear box. Plaintiff testified that he did not know the set screw was projecting or exposed, but admitted that he knew there were set screws in the plant, and testified that some of them were countersunk or flush with the collar, while some in other parts of the building were allowed to remain exposed and projecting. It was also shown by the evidence that this particular set screw by which plaintiff was injured had been in the condition described more than four years, or ever since the crane had been installed in defendant's plant. Several witnesses testified that in well-regulated plants set screws were countersunk or made flush with the collar.

This action is based upon the Employers' Liability Act of Alabama, which provides in substance that, when a personal injury is received by an employe, the employer is liable as if the employe were a stranger, if the injury is caused by a defect in the condition of the ways, works, machinery, or plant of the employer. Section 3910, Civil Code of Alabama of 1907. The projecting set screw was the defect plaintiff relied on at the trial.

Error is assigned upon the refusal of the court to direct a verdict for defendant. To sustain this assignment it is argued that a projecting set screw is not a defect, but that it merely enhances the risk of injury in an employment that is inherently dangerous. While this view seems to prevail in some jurisdictions, it has been rejected by the Supreme Court of Alabama, which, in construing the act above cited, has held that it cannot be asserted as a matter of law that an employer is not liable for injury to an employe caused by a projecting set screw on a revolving shaft, and the question of liability of the employer was properly left to the jury. Prattville Cotton Mills Co. v. McKinney, 178 Ala. 554, 59 So. 498.

The trial court allowed the jury to determine whether the projecting set screw constituted a defect. The place of work provided for plaintiff was dangerous at best. The platform was small, a goodly portion of it was taken up by the tool box, and the breaker coil, heavily charged with electricity, further contracted the space available. It appears to us that there was evidence to support the verdict that...