PULASKI MINING CO. v. HAGAN, 196 F. 724

ROSE, District Judge. We shall speak of the parties as they were below. We will call the plaintiff in error the “defendant”; the defendant in error the “plaintiff.” The defendant was a manufacturer of sulphuric acid. The plaintiff was one of its employés. He had worked in acid factories for 11 years. The defendant had been in business for fottr years. The plaintiff hadl been its process foreman during all that time. As such he had charge of the making of the acid and of the actual work of loading it upon the railroad cars for shipment. The permanent appliances used for loading were constructed by others.

He says he had nothing to do with their inspection or repair. The acid was allowed to run by gravity from the tanks in which it was stored to the cars. The bottoms of these tanks were 10 feet or more above the level of the railroad track. From each of them ran a three-inch cast-iron pipe. They all connected with a single pipe of like size and material. By a suitable arrangement of stopcocks, the. acid could be drawn from any desired tank without disturbing the contents of the others. At the end nearest the tanks an elbow united two pieces of pipe.

They ran at right angles to each other so that when one piece was in a horizontal position the other would be vertical. By a rope or chain attached to the pipe near this elbow its end, when not in use, was raised so that the contents of all of it, except the portion beyond the elbow, would drain back into the tanks. The defendant shipped on the average about two car loads of acid in every three days. Ninety-nine times out of a hundred the cars used were of such size and construction that the loading of them was safe and simple.

When the portion of the pipe ordinarily suspended was lowered into a substantially horizontal position, the side of the dome of the tank car supported the horizontal portion of the pipe which at a point quite close to the elbow rested thereon. The perpendicular portion of the pipe extended down into the dome. The acid ran through the pipe directly into the car. About once in every six months a smaller car was used!. Its dome was not high enough to support the horizontal portion of the pipe, nor was the perpendicular

section of the latter long enough to reach down into the car. To load this car some special arrangement had to be made to support the weight of the pipe and to extend the perpendicular portion of it so as to carry the acid in to the car. The accident happened while such an arrangement was in use. The plaintiff’s duties required him to be at times in a position in which he could look down into the dome of the car through the space between the perpendicular portion of the pipe or its extension and the sides of the dome. When in this position he was under the horizontal portion of the pipe.

On the occasion in question that portion of the pipe parted or broke. He was drenched with the acid. More than 500 square inches of his skin were burned by it. He suffered great pain. Some portions of his body were so badly injured that the skin hadi to be taken from his legs and grafted upon them. One of his ears was in large part eaten off. He is permanently disfigured. Some of his muscles he cannot freely use. He claims that now whenever he is near acid he becomes so nervous that he can no longer work in an acid factory. He has not been trained to do anything else.

At the time he was injured he was earning $107 a month. The jury found' in his favor. It assessed his damages at $8,000. The defendant assigns numerous errors. Some of them relate to the admission or rejection of testimony. We do not find substantial merit in any of them. The defendant asked for a number of instructions which were refused. Some of them were calculated to mislead or confuse the -jury. They were for that reason properly denied.

Others were unobjectionable, but the points raised! by them were sufficiently covered by other portions of the charge which were given by the court either at the instance of the defendant or of its own motion. If the case was one to go to the jury at all, it was submitted with instructions which fully and accurately stated the applicable law. The defendant, however, asked for a directed verdict. Whether the court below was right in denying this request is the only serious question raised! by this record. At the time of the accident, there was a sleeve on the horizontal

section of the pipe at a point a short distance from the elbow. This sleeve united two separate pieces of pipe, each of which were screwed into it. The evidence would have justified the jury in finding that at the time of the accident the portion of the pipe next to the elbow came out of the sleeve. The accident happened on the 26th of August, 1909. Prior to the 12th day of July of that year the plaintiff had! taken a ten-day vacation. He áays the sleeve was not on the pipe when he left. The pipe at that place was then, according to him, a single piece. When he came back, he.found two pieces united by the sleeve.

After his return he used the pipe as he found it to load some 31 cars of the ordinary size and shape. The accident took place upon the first occasion after his holiday at which he attempted to load the small car. As before explained, the construction of this car rendered it necessary to add some special appliances to the ordinary apparatus. Under the horizontal portion of the pipe a prop was needed. In practice a piece of scantling was used for that purpose.

The plaintiff says that, before he entered the defendant’s employ, he had never loaded such a car, nor had he ever seen one loaded. ■ For some time after he first came to the defendant’s works, the small car was loaded in a way different from that used on the occasion of the accident. On such occasions the defendant had its lead-burners fasten to the perpendicular portion of the three-inch cast-iron pipe a flexible lead pipe long enough to reach into the opening of the dome of the car. This practice was followed for some years. The plaintiff gives a circumstantial account of how it came to be abandoned.

About two years before the accident the small car was brought to the defendant’s works. There was urgent occasion to load it and to send it off promptly. Plaintiff went for the lead-burners. He found them busy at something which also required instant attention. He reported the facts to one Landis, the defendant’s superintendent. Landis went, with him to the car and sent for a clothes line wire and a piece of four-inch iron pipe about two to three feet long. By direction of Landis the wire was tied around the- elbow of the three-inch pipe.

By it the four-inch pipe was suspended so that the top of that pipe came up around! the lower end of the three-inch pipe, while the lower end of the banging pipe extended down into the dome of the car. The plaintiff says that all that Landis told him about it was: “I think that is all right. We won’t have to bother with the lead-burners any more.” Landis says he never heard of a lead pipe being used. According to him the plaintiff himself devised the method! of loading the small car used at the time of the accident. When the plaintiff first employed it, he seemed very proud of it.

He sent for Landis and showed it to him. Landis says that he then told the plaintiff he thought it would work all right if the latter was careful to see that the portion of the pipe on the factory side of the elbow was kept perfectly horizontal so that the four-inch pipe would not touch the three-inch pipe and would not be in any danger of binding or jamming between the three-inch pipe and the inner side of the dome of the car. Here there was a direct conflict of testimony. W!e must assume that the jury believed the plaintiff. No eyewitness attempts to tell what caused the pipe to part.

The suit was not instituted until 514 months after the accident. During that time if the witnesses are to be believed!, no one in the employ of the defendant, from its superintendent down, ever made the slightest investigation to find out why the accident happened. The court below fully recognized that the burden of showing that the defendant was to blame rested upon the plaintiff. It told the jury that they could not infer negligence from the mere fact of accident or injury; that negligence caused the accident must be proved.

They were further instructed that if there were two things which might have caused the accident, one or more of said causes being the negligence of the defendant, any one of the others being matters for which the defendant was not responsible, and the evidence left it uncertain which actually caused the injury, they must find for the defendant, as they must if the accident was caused by a hidden latent defect in a piece of pipe in the loading line which could! not have been found out by the exercise of ordinary care on the part of the defendant.

The court charged them that the pipe in the loading line was presumed to be sound and suitable for that purpose until the contrary was shown, and so far as the plaintiff relied upon the unsoundness of the pipe, the burden was on the plaintiff to show that it was unsound and unsuitable for that purpose and broke from that cause.

At the argument at this bar the defendant contended that there was no sufficient evidence that the accident had happened as a result of its negligently using imperfect pipe or pipe with imperfect threads, or because of its pipe-fitters having been negligent in fitting the pipe into the sleeve. The defendant did not ask that the jury should be told that negligence in the above respects was not made out.

If it be assumed that there is nothing in the record sufficient to hold the defendant liable for negligence in those matters, the case was, nevertheless, properly left to the jury if there was any evidence from which, if they believe the accident was caused by binding, they might still have found for the plaintiff. Defendant put on the stand a number of witnesses to show how the four-inch iron pipe might well have become bound or jammed between the fixed three-inch pipe over which it was suspended and the side of the dome of the car.

There is no question that, if such binding took place, the slightest additional movement of the car might have exerted a pressure upon the pipe line quite sufficient to have broken it or pulled it apart. If the jury believed that the accident was caused by such binding, they were entitled to return a verdict for the plaintiff provided there was evidence justifying them in also finding that: First, the method of loading the small car used at the time of the accident was not reasonably safe. Second, the defendant directed the use of such method.

Third, the negligence of the plaintiff did not contribute to the accident. Fourth, the plaintiff did not assume the risks of that method of loading. Was there evidence of all these things? First, was there evidence that the method of loading the small car was not reasonably safe ? According to the testimony, there is no danger when a flexible lead pipe is used to piece out the too-short iron pipe. There is evidence that this absolutely safe method had been used by the defendant. It had been abandoned. An employer is not required to use the safest method.

A reasonably safe w.ay suffices, whether there is a safer or not. The defendant’s evidence strongly tended to show that much danger attends loading in the way used at the' time of the accident. It is true that it is said that this danger does not exist if those actually using the method are careful to get and keep everything in precisely the proper position. There is, on the other hand, evidence that a failure, even by a little, to make the proper adjustments, may sometimes lead to disastrous results. Tire peril is all the greater perhaps because at other times no such results follow.

Whether an accident happens or not may depend upon the relative degree upon which during the loading the different car springs settle. A jury may well hold that a method which involves such risks and requires such care to avoid them is dangerous. In this case the evidence shows that an absolutely safe way was known to the defendant and had been used by it. Such- way was abandoned for a trivial reason, if the plaintiff’s testimony be accepted as true. Under such circumstances, it was for the jury to say whether the method actually, adopted was reasonably safe.

Second, was there evidence that the defendant directed the use of such method ? The plaintiff swears that it did. Whether he was telling the truth or not was a question for the jury. Third, were the jury justified in finding that the plaintiff did not by his own negligence contribute to the accident ? He says that he was careful. No eyewitness undertakes to say that he was not. Defendant’s experts say that the accident could not in their judgment have happened from binding, if he had been as careful as he should have been.

How careful he should have been depends upon how much he understood, or should have understood, of the dangers attending the use of the method he was following, and of how those dangers might be best guarded against. The burden of showing that the plaintiff was guilty of contributory negligence rests upon the defendant. There is nothing in the record which would have justified the court in ruling that as a matter of law the defendant had contributed to his own injury. .

Fourth, were the jury entitled to find that the plaintiff had not assumed the risk involved in loading by the method which was in use at the time of the accident ? The court instructed the jury that if they believe from the evidence that the car could have been safely loaded if the pipe was not permitted to bind on the manhole, and the plaintiff knew, or should have known, that it was likely to bind during the loading unless prevented by himself or his helpers, and knew that such binding might break the loading line, he assumed the risk, and if such binding caused the injury he could not recover.

As. the jury found for the plaintiff, it follows that they could not have believed that the plaintiff knew or should have known that the pipe was likely to bind, and that if it did bind che loading line might break. The defendant’s witness Fandis swore not only that the plaintiff himself devised the scheme of loading in use at the time of the accident, but that he (Fandis) warned him to be careful that the pipe did not bind. The plaintiff, on the other hand, swears that Fandis devised the scheme, and that he (the plaintiff) never knew there was any danger in binding or had ever heard there was any.

Defendant argues that this statement of plaintiff is not worthy of belief. It points out that in the course of his testimony he on more than one occasion mentioned that he was careful to see that the four-inch pipe hung loose and that it did not bind. The defendant argues that these statements show that he knew of the danger of binding and when exercising his ordinary care tried to guard against it. Plaintiff explains that he wanted the pipe loose because it was necessary for him from time'to time during the loading to test the acid by lowering a bottle down into the car between the pipe and the side of the dome.

The credibility of such explanation was for the jury. They saw and heard him testify. It was their province to judge whether the use of the word “bind” by him as he did use it indicated that he was aware of the danger which might follow from binding, or whether, to describe the situation of things when the pipe jammed against the side of the dome, he was merely using a word with which during the preceding and pending trial he had become familiar. The question of whether the plaintiff knew the danger from binding wras therefore a question which was properly left to the jury.

Does the evidence show that, whether the plaintiff did know the danger or uot, he should have known it? The plaintiff had been for 11 years employed in acid works. For at least 4 years a part of his duties was to load the cars. On the other hand, according to his testimony, while he had loaded many hundreds of cars, the occasion of the accident was the fourth time upon which he had ever loaded a car by the method then used.

The most inexperienced man, if he stopped to think about it, would know that, if the weight of a car and its contents was pressing directly upon a piece of four-inch pipe, the other end of which was transmitting all such pressure to the pipe line, something would be likely to give way. So much may be taken for granted. It does not necessarily follow, however, that even an experienced man would know and appreciate that a slightly uneven settlement of the different springs supporting the car body might suddenly cause the pipe, which had been previously hanging loose, to bind.

An expert witness for the defendant testified that, if one spring of the car settled 1% inches more than the spring on the other side, the side of the dome would be moved more than 11% inches. We are not prepared-to say that the plaintiff should have known and appreciated this risk. It follows that the jury were entitled to find as they did, even if they believed that the accident was caused by binding. The judgment below must be affirmed.