Wheeler v. Standard Steel Co.

• Decision Date: 11 May 1916
• Docket Number: 7 Div. 761
• Citation: 196 Ala. 634,72 So. 254
• Parties: WHEELER v. STANDARD STEEL CO.
• Court: Alabama Supreme Court

72 So. 254

196 Ala. 634

WHEELER v. STANDARD STEEL CO.

7 Div. 761

Supreme Court of Alabama

May 11, 1916

Rehearing Denied June 30, 1916

Appeal from City of Gadsden; John H. Disque, Judge.

Action by Fred F. Wheeler against the Standard Steel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W.J Boykin and J.M. Miller, both of Gadsden, for appellant.

Hood &amp Murphree, of Gadsden, for appellee.

GARDNER J.

Suit by appellant against appellee for the recovery of damages for personal injuries, sustained by plaintiff while in the employment of defendant, and while in the performance of the duties of such employment.

Upon the conclusion of all the evidence in the case, the trial court gave the affirmative charge requested by the defendant with hypothesis. This is the only question argued by counsel for appellant on this appeal. In brief of counsel for appellee there appears a very orderly and succinct statement of the most pertinent facts in the case, the correctness of which statement is not questioned by counsel for appellant in their brief filed in reply thereto; and, after a careful examination of the record, we have concluded to adopt this statement in this opinion. Counsel's statement of the facts is as follows:

"Appellant was a member of what was known as the riggers' gang, whose duty it was to do general repair work at the plant of appellee. At the time he was injured, he and his gang had gone under the directions of the superintendent of the gang, to the blast furnace of the purpose of repairing the gear of a drum, which was geared to a stationary engine and operated by said engine. Around the drum extended two wire rope cables, the ends of which were fastened to two skip hoist cars, called, in the evidence, gophers. The engine, which was geared to the drum, caused the drum to revolve, which in turn, by said wire rope cables, pulled the skip hoist cars up an inclined double railroad track, which double track extended from the ground upward at an angle to the top of the blast furnace. The gophers were used for the purpose of conveying iron ore, limestone, and other material to the top of the furnace to be dumped therein in the process of manufacturing pig iron. Along by the side of the inclined railroad track, extended from the ground to the top of the furnace a series of steps, enabling employés to go from the ground to the top of the furnace, or to any point on the inclined track by the use of such steps. On the occasion in question, appellant and his gang were engaged in repairing the gear of the drum. The drum and the engine to which it was attached were located in a small brick house underneath the inclined railroad track, and the wire rope cables extended from the ground upward through the roof of the house to the railroad track, and were attached to the two gopher cars operated thereon. It was necessary to chain the two gopher cars to the railroad track so that the cables attached to them could be slackened, in the repair of the gear of the drum. Appellant and one or two of his fellow servants were directed by their superintendent to go up the incline and chain the gopher cars to the incline. Before they undertook to do that work, the steam had been cut off of the engine which operated the drum by the proper setting of the steam throttle. In other words, the engine had been stopped by cutting off the steam. The gopher cars would not move and could not be moved except by turning on the steam and starting the engine, they being attached to the wire rope cables, which in turn were wound around the drum, and which in turn was geared to the engine. The throttle of the engine was opened and closed by a lever, which was from 6 1/2 to 7 feet above the ground--a little higher than a man's head. The throttle lever was not immediately over the drum but was from three to four feet to one side. While appellant was on the inclined track, Harvey Russell, a member of the riggers' gang, and one or two others had gone into the engine house for the purpose of making ready to repair the gear of the drum, it being their duty to make such repairs. Russell had climbed up to near the roof of the engine house, for the purpose of doing some work there preparatory to repairing the gear of the drum. He was standing on the drum, and, while standing there, his foot slipped, and in falling he involuntarily grabbed the throttle lever, thereby involuntarily opening the throttle and starting the engine, which moved one of the gopher cars against appellant,

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