U.S. Cast Iron Pipe & Foundry Co. v. Granger

• Decision Date: 13 April 1911
• Citation: 172 Ala. 546,55 So. 244
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. GRANGER.
• Court: Alabama Supreme Court

55 So. 244

172 Ala. 546

UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. GRANGER.

Supreme Court of Alabama

April 13, 1911

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by John Granger against the United States Cast Iron Pipe &amp Foundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The excerpt from the court's oral charge is as follows "To entitle the plaintiff to recover in this case, the question for you to determine is whether or not the hook was in a defective condition--that that was the cause that proximately contributed to his injury. If you find it was then the question for you to consider is whether or not plaintiff would be entitled to recover."

Charge 8 was as follows: "Unless the jury believe from the evidence that the shakeout, Robert Chillison, was the person intrusted by the defendant with the duty of seeing that the hook and chain by means of which the corebars on No. 3 pit were pulled and moved, were in proper condition, their verdict must be for the defendant."

Weatherly & Stokely, for appellant.

Frank S. White & Sons, for appellee.

McCLELLAN J.

This is the second appeal in this case. United States C. I. P. &amp F. Co. v. Granger, 162 Ala. 637, 50 So. 159. On the retrial the case went to the jury on the issues made by counts 3 and 4, and pleas of the general issue, contributory negligence, and assumption of risk. These counts impute negligence to the defendant (appellant) in respect of its ways, works, machinery, etc., whereby a large piece of iron, called a "corebar," was permitted to fall upon him, to his injury. These counts were drawn under the first subdivision of the liability act (Code 1907, § 3910).

There are no errors assigned as upon rulings on the pleadings.

On the former appeal it was ruled that the issues of defect vel non of the hook, and of the cause of the falling of the corebar, and of the point of time at which the hook "spread," if at all, were for the jury to decide. That was true on the evidence submitted on the second trial below.

As we take it from brief for appellant, the chief contention of legal result is that, under the evidence, the plaintiff, himself, was the person "intrusted" by defendant "with the duty of seeing that the ways, works, machinery, or plant were in proper condition," in the particular to which he ascribes his injury for proximate cause. If such was the case, it must be conceded that to plaintiff's own negligence, and not to any dereliction imputable to the defendant, would his injury be ascribable, and hence plaintiff would have no right of recovery therefor against defendant. Pioneer Mining Co. v. Thomas, 133 Ala. 279, 32 So. 15. Manifestly the duty "intrusted," in the respect indicated by the above quotation from the statute, must impose a responsibility, as distinguished from a duty created by justifiable general rule, on an employé, "to examine for his own security (italics supplied) the appliances which he uses." 2 Labatt's Master & Servant, § 674; Roberts & Wallace (3d Ed.) pp. 254, 255; M. & C. R. R. Co. v. Graham, 94 Ala. 545, 555, 556, 10 So. 283. Nor does the duty, so intrusted, have reference to the obligation on a mere laborer to look after certain instrumentalities "at some particular moment of the progress of the work." Author, supra; O'Connor v. Neal, 153 Mass. 281, 26 N.E. 857. That such responsibility must be the result of the master's selection, or by his authority, is expressly provided in the clause with which we are concerned. But while the duty under consideration must be, in source and nature, as stated before, yet, on the other hand, it need not amount to superintendence ( Copithorne v. Hardy, 173 Mass. 400, 53 N.E. 915; 2 Labatt, supra); for a servant may have the duty so imposed on him notwithstanding he is subject to a superintendent's orders (Copithorne v. Hardy, supra). So, without assuming to comprehensively define the duty intrusted, under this feature of the statute, and confining the observation to the nature and scope of the duty so intrusted, it may be safely said that the duty, when the inquiry involves the relation of an employé ranking, in his ordinary sphere, as a laborer merely, must be general, in the sense of effect, as regards the safety of others than the employé using the appliance, and not merely transitory as the result of the progress of the service in which he is employed.

In Copithorne v. Hardy, supra, the injury was caused by the falling of shafting from the ceiling. Pursuant to the orders of Shea, defendant's superintendent, Maclaren, who was a carpenter, moved the shafting the day before the injury was suffered. When started, after the removal, it squeaked, was stopped, and Maclaren worked on it again. Later in the day it fell. The court, through Holmes, J., said: "Shea had the wider authority, no doubt, but was a salesman, and the man who really understood the machinery and looked after it, although subject to orders, was Maclaren. The jury were warranted in finding that he was a person intrusted within the meaning of the statute."

That appellant's insistence may be accepted, leading to the legal consequence that Chillison was not a person intrusted with the duty under consideration, and thereby referring the duty's imposition to plaintiff himself (omitting, for the present, duty of others as a factor), it must be ruled, as matter of law on the evidence, that Chillison's obligation to look after the appliance in question, at least chiefly, related to his own security and was, also, an obligation of a transitory nature, created, merely, by the progress of the operation to which he, as head shakeout, owed and rendered service. If this may be affirmed on the evidence, the affirmative charge, requested by defendant, was its due. This relegates the decision of the inquiry to the evidence.

The operation in progress, when plaintiff was injured, was the removal, by means of a crane, of about 12 pieces of iron called "corebars." The place from which they were taken was called a "pit." Chillison was "head shakeout" in this operation, and his place of service was at the top of the pit, which was about 20 feet deep. Chains were provided to be, and which were on this occasion, put around each corebar, below a flange thereon. From a ring attached to the hoist hooks pended. The mode was to put the hooks over (around) the respective chains on the corebars, and thereby raise them. Three were thus being hoisted when one corebar fell on plaintiff. It was plaintiff's theory, as before indicated, that the falling of the corebar was the immediate result of the spreading of the hook.

Chillison testified: "At the time plaintiff was hurt, it (hook) had been that way (spread) about three days. It was my duty as shakeout to keep up with those hooks and see whether they were spread or not, and when I found anything wrong with the hook it was my duty to report it to Mr. Veitch, the boss there. * * * This hook had been spread for three days prior to that time, and I knew it. * * * As a matter of fact I did not report the spreading of the hook. * * * We had been pulling out corebars with this hook up to the time of the accident, every day, and during that time it had worked all right and had not slipped that I remember of. * * * After the corebars are pulled out of the flasks, they all just pull together, but never rock out at all; when they hit together this time, this corebar slipped loose and fell right on top of the flask, and I holloed to look out, and he was too slow to get out of the way. When the three corebars came out together, then it fell, knocked the chain off the end of the hook--knocked the chain out of the hook, that must have knocked the chain off the end of the hook. * * * By this being a hook open a little more than the rest, the chain slipped out, and the bar fell. * * * It was my duty to keep a lookout for my chain and hooks and things, and if I saw anything wrong with them I would report it to the foreman, and he would give me an order to have them fixed. So far as I know, Mr. Veitch was the foreman of my pit. Veitch told me he was my boss, he would tell me about what to do, Granger (plaintiff) was there, and he would tell me what to do, and I would do what both of them said. Granger was my boss part of the time, when he was there. Granger was not with me all day while the pit was being operated; might have been around there all day. He was right close to the pit, but I didn't need no boss all the time; knowed what I had to do, and went on and done it."

John Hancock testified: "It was the head shakeout's business to look after the hook; that was his duty, to see that all was correct, and, if not correct, to report to his boss man, and he gives an order and he goes and gets it fixed."

The testimony of the witnesses Cole, Pounds, and Phillips was to like effect. Phillips said this: "It is the duty of the shakeouts who use the hooks to keep a lookout and notice when they get out of order."

The plaintiff testified: "Had been working on that pit 3 1/2 days; but I was not boss there. They took me off my pit and shoved me into the other. * * * I did not see the hook, and don't know really what was the matter with it. It was not my business to look after it. * * * (On the cross) I was put there (referring to his transfer from pit 4 to pit 3, where he was injured) to see what the trouble was with the pipe coming out scrapped, and Veitch had charge of three pits and I had one. I was there three days just to walk around and see what the trouble was. I had charge of pit 4, until I was told to go to that one and help Veitch. When I went to No. 3, I did not examine the chains at all, but I examined them on No 4 all the time. At this time I didn't have charge of any...