United States Cast Iron Pipe & Foundry Co. v. Sullivan

• Decision Date: 10 February 1925
• Docket Number: No. 4280.,4280.
• Citation: 3 F.2d 794
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. SULLIVAN.

3 F.2d 794 (1925)

UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. SULLIVAN.^*

No. 4280.

Circuit Court of Appeals, Fifth Circuit.

January 6, 1925.

Rehearing Denied February 10, 1925.

Brenton K. Fisk, of Birmingham, Ala., for plaintiff in error.

Hugo L. Black, Crampton Harris, and Arthur B. Foster, all of Birmingham, Ala., for defendant in error.

Before WALKER and BRYAN, Circuit Judges, and ESTES, District Judge.

WALKER, Circuit Judge.

This was an action by the personal representative of D. G. Sullivan, deceased, to recover damages for the deceased's death, which was attributed to alleged negligence chargeable against the plaintiff in error, which is herein referred to as the defendant. The complaint in substance was that the deceased, when at work by the invitation of the defendant in a pit on defendant's premises from which clay was being dug, to be subsequently taken to a pipe-manufacturing plant belonging to the defendant, was killed in consequence of a ledge or "overhang" of the clay falling from the side of the pit upon him. The negligence charged was the failure to keep the pit in a reasonably safe condition, and the failure to warn the deceased of the danger of injury. There was evidence to the following effect:

Deceased was an employee of an independent contractor, who undertook to supply defendant's plant with the clay used in the manufacture of its products, such clay being dug from land included in defendant's premises. The pit in which deceased was working was some 7 or 8 feet deep, and the ledge had been "undercut" about 3 feet when it fell. The pit caved in at a place where the ground near the edge of the pit had been cracked for about a week before the caving in occurred; that crack being about 1 inch wide and 8 or 10 feet long. The superintendent, foreman, and safety engineer in charge of defendant's works were accustomed to be about the pit from time to time, one or more of them several times each day. The safety engineer was a witness for defendant. On cross-examination he testified that he was at the pit, upon the bank near the edge, about 1 or 2 o'clock in the afternoon of the day of the accident, which occurred at about 4 o'clock in the afternoon; that deceased was in the pit at the time witness was last there; and "that it would have been my duty as safety engineer to order the men out if I had seen them working in a place of danger." The deceased first went to work in the pit on the day he was killed, and was not aware of the crack which indicated danger to those working in the pit.

The theory of the defendant in error is that the fall of the ledge or "overhang" was due to a dangerous condition which the defendant had negligently permitted to exist, and of which it should have warned the deceased, since he did not know of it, and could not have observed it from the bottom or interior of the pit. Complaint is made of the court's refusal to give, at the request of the defendant, a charge to the effect that, if the jury believed the evidence, their verdict could not be in favor of the plaintiff. The right of action asserted is based on an Alabama statute which provides as follows:

"A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death." Code of Alabama of 1907, § 2486.

It is well settled that punitive damages are recoverable...