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

• Decision Date: 14 November 1916
• Docket Number: 2964
• Citation: 237 F. 185
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. EASTHAM.

237 F. 185

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

No. 2964

United States Court of Appeals, Fifth Circuit.

November 14, 1916

W. P Acker, of Anniston, Ala., J. T. Stokely, of Birmingham, Ala and Chas. B. Atkins, of Atlanta, Ga., for plaintiff in error.

Robt. N. Bell, of Birmingham, Ala., for defendant in error.

Before PARDEE and WALKER, Circuit Judges, and CALL, District Judge.

CALL District Judge.

Fred C Eastham brought suit against the United States Cast Iron Pipe & Foundry Company to recover for personal injuries suffered by him in defendant's manufacturing plant in the city of Bessemer, Ala. The case was tried upon two counts in the plaintiff's declaration, A and D.

Count A alleges plaintiff's employment, and that while engaged in the discharge of his duties his arm was caught in or by a belt which was running over a pulley, and he was thereby injured, and that said injuries were proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant, in that said belt was defective and dangerous. Count D alleged that said injuries were caused by the negligence of a person to whom superintendence had been intrusted, to wit, Ike Jones.

To these counts the defendant interposed sundry defenses, the first 'not guilty' and the others contributory negligence of the plaintiff in various ways.

The evidence shows without contradiction that the plaintiff, while shifting a belt on a cone pulley on the shafting from the larger cone to a smaller, was injured; that mechanical shifters, whereby one can stand on the floor and shift a belt, are never used to shift a belt on a cone pulley; that it is impossible to use such a shifter on a cone pulley to shift the belt from a smaller to a larger cone, but might be used to shift the belt from the larger to the smaller cone; that mechanical shifters were used to shift belts from a loose pulley to a fast one, or vice versa, and if such a shifter had been installed it would have been perfectly safe to shift the belt from the larger to the smaller pulley on a cone pulley; that none of the witnesses had ever heard of a mechanical shifter being used on a cone pulley. The court in its general charge to the jury said:

'Now the other respect in which Jones is charged with negligence by the plaintiff is that he permitted the work to be conducted in the absence of a belt shifter; that is, as I understand it, an appliance by which the plaintiff could have shifted the belt from the ground, instead of standing on the platform or brace and doing the work in close contact with the belt.'

And, after giving the law governing the duty of the master to the employe, the court continued:

'If you are satisfied that a reasonably prudent employer should have used a belt shifter, and would have adopted the use of a belt shifter, then this defendant would have been negligent in failing to do so.'

The defendant requested in writing the following charge, which was refused, and exception seasonably noted to such refusal:

'If you believe the evidence in this case, you cannot predicate any negligence against the defendant's superintendent, Jones, on account of the absence of a belt shifter to shift the belt which the plaintiff was shifting at the time of his injury.'

This charge should have been given. The trial court under its charge submitted to the jury to find whether it was negligence on the part of the employer not to have the belt shifter, when all the evidence was to the effect that no one had ever known or heard of such an appliance being installed on a cone pulley, where the belt was shifted from a larger to a smaller cone and...