Tunney v. Carnegie Bros. & Co.

• Decision Date: 04 January 1892
• Docket Number: 247
• Citation: 146 Pa. 618,23 A. 207
• Parties: THOMAS TUNNEY v. CARNEGIE BROS. & CO
• Court: Pennsylvania Supreme Court

23 A. 207

146 Pa. 618

THOMAS TUNNEY v. CARNEGIE BROS. & CO

No. 247

Supreme Court of Pennsylvania

January 4, 1892

Argued November 3, 1891

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

No. 247 October Term 1891, Sup. Ct.; court below, No. 23 April Term 1890, C.P. No. 2.

On January 14, 1890, service was accepted of a summons in trespass, brought by Thomas Tunney against Carnegie Brothers & Co., Limited, to recover damages for the death of the plaintiff's minor son, in consequence of negligence on the part of the defendants. Issue.

At the trial on May 27, 1891, the following facts were shown:

The defendants were the owners and operators of the Edgar Thompson Steel Works, at Braddock, Pa. At these works, there were two batteries of steam boilers, under which natural gas was used as fuel. The furnaces under the boilers were connected by underground brick flues, about four feet six inches wide, with a high stack standing about twenty feet from the boilers. The flues were about fifteen feet apart at the ends next the boilers, and about ten feet apart where they entered the stack. They were so arranged that they could be used separately; and, on the night of April 24, 1889, one of them was undergoing repairs, while the other was in use. At least twenty men and boys were working on and about this repairing, among them the plaintiff's son, John Tunney, a boy seventeen and one half years of age, engaged in wheeling bricks to the place where the repairs were in progress. In so doing, he wheeled his barrow, a part of the time, across the other flue.

Testimony for the plaintiff tended to show that John Tunney disappeared on the night mentioned, and that he was last seen about half past ten or eleven o'clock, standing in the boiler-house warming himself, it being a cold, wet night. A witness for the plaintiff testified that, about one or two o'clock A.M., he noticed a hole in the top of the flue, then in use and a wheel-barrow standing on one side of the flue, a short distance from the hole, and that, at the time he first observed it, the hole was of about the size of an ordinary water bucket.

The plaintiff testified that on the morning of April 25th, about seven o'clock, having heard a report that his son had been burned, he went to the works and saw the hole, then about five feet wide and five feet long; that he looked into the hole, could see to the bottom, and saw, further along the flue, lying at the foot of the stack some bones and a wrought-iron heel-plate, which he recognized as belonging to one of his son's shoes, brought with him from England by the son only about six weeks before, no such plates being in use in this country; that the flue was full of gas and flame and the witness requested the men who were at work in the establishment at the time, to shut off the fire so that he could get the bones and show them to the coroner; that the men told him it would not save the boy's life to shut the fire off, and his bones would do the witness no good; that about two o'clock P.M., the witness returned to the works, and the fire was then out; that returned to the works, and the fire was them out; that the witness asked for the use of a step-ladder, that he might go down and get the things he had seen under the stack, but was not allowed to do so; that the workmen "cleaned this place out, to see if there was anything attached to the boy, . . . and there was only small nails."

The plaintiff testified, further, that the top of the flue where the hole appeared, was "rotten," some of the bricks having been burned to the depth of two or two and one half inches; that "the bricks all were badly burned in the brick-yard, and the bad bricks made the others cave in;" that the plaintiff had worked at blast furnaces for thirty-seven years, and that it was usual to have "a wrought-iron plate that runs over the bricks for protection, so when the bricks will burn you can't go down," but there was no such plate over this flue. On cross-examination, the witness was asked whether his son would not have to cross Turtle creek to get home, and whether the creek was not dragged the next day after the boy's disappearance. He answered the first inquiry affirmatively; and in response to the second, stated that the creek was dragged by defendant's men for a blindfold, and that it was too shallow for the boy to be drowned in.

The plaintiff's wife and daughter testified that the defendant's foreman brought two small pieces of clothing to them, at their house, in a burned or singed condition, which he said had been picked up near the stack; that they recognized them as parts of the underclothing of John Tunney, which they had mended and washed. The daughter testified that the color of these pieces was just what the color of the clothing, as modified by the action of fire and smoke, would be; that, when washing her brother's clothing the week before, she had noticed a patch, and one piece she identified as belonging to the clothing had in it what "was like a double place" which she thought was a patch; and that the foreman, after he had shown them to the witness and her mother, snatched the pieces of cloth out of the mother's hands and took them away with him. Testifying in his rebutting case, the plaintiff corroborated the statement that the foreman brought two pieces of clothing to plaintiff's wife and daughter, and refused to leave them at plaintiff's house.

For the defendants, their foreman testified that he took but one piece of clothing to the plaintiff's house; that he was not requested to allow it to remain there, and that he took it away because he was trying to run down rumors about it that were flying about the mill; that, by the time he returned to the mill, a shirt had been found that belonged to a cooper employed at the mill, and this piece had come out of and fitted into the sleeve of that shirt; and that it was not an uncommon thing for the men employed in the blast-house, to get their coats or shirts burned and then throw them into the yard.

Other testimony for the defendants tended to show that the flue in question was substantially constructed and arched over with four courses of brick, the two inside courses being composed of the best fire-brick, and that it had ten or twelve inches of earth on the top of it; that it was made strong enough to bear any weight that would come upon it; that it was the duty of a competent man, employed by defendants, to inspect it every time the boilers were "let off," for the purpose of seeing whether the inside was burned away and needed to be replaced; that it had been repaired from six to seven months before April 24, 1889, and had been inspected perhaps about three months prior to that date; that the ordinary life of a flue of that kind, in good condition, would vary from a year and a half to three, four, or five years, depending upon the amount of gas used; that the cause of the falling in of the flue, on the occasion in question, might have been an explosion of gas occurring on the inside of it; that the hole first appeared about twelve o'clock P.M., attracting immediate attention by reason of the light that shone out from it; that the plaintiff's son was already missing, and had been for an hour or an hour and a half, when the break in the flue occurred, and the wheel-barrow mentioned in the testimony for the plaintiff had then been standing beside the flue for some time; that the width of the hole, when it first appeared, was from eight to ten inches, and it was too small for the boy to have fallen entirely into the flue by accident, but its size was afterwards increased; that, about nine o'clock the next morning, the superintendent gave orders to shut off the gas, which was done, and in the afternoon as soon as the flue was cool, a very careful examination of its contents was made, the ashes which had accumulated in the bottom being sifted through a sieve, but nothing was found except the old nails which had been driven into the wooden arch, used in the construction of the flue, and burned away in the subsequent use of the flue.

The testimony being closed, the court, EWING, P.J., charged the jury in part as follows:

I very gravely doubt, in fact I do not believe (but it is for the jury), that there was any burnt clothing of the boy left, if he went into that flue. It would disappear very promptly in that flame.

The first question with you is was this boy lost in that hole? Did he fall into that flue where he was working? If he did you come to a further question. If he did not, if you do not find that question affirmatively, you need give yourselves no more trouble about it, and your verdict should be for defendants. If he fell into that hole, then the question is, was there negligence on the part of Carnegie Brothers & Co. that contributed to this injury? In a case of this sort, to entitle the plaintiff to recover the defendant must have been guilty of negligence which contributed to the injury, and the plaintiff must have been free from negligence. There is no evidence...