E. I. DU PONT DE NEMOURS & CO. v. McCULLEN, 260 F. 607

KNAPP, Circuit Judge. As a part of its extensive plant at Hopewell, Va., plaintiff in error, defendant below, operates what is known as “No. 4 Tub House,” where cotton is boiled for use in the manufacture of certain products. In this building were 10 rows of large tubs, each row having 13 tubs. Cotton was brought in from the “nitrating house” through a trough partially filled with water. Inside the building was a series of smaller troughs, provided with gates, by means of which the cotton and water were conveyed to the various tubs. The employe in charge of this distribution was called a gate-man.

After the cotton had been properly boiled in the tubs, the water was drawn off through openings near the bottom into other troughs, by which it was taken out of the building. These troughs were about 18 inches wide and approximately 18 inches above the floor in front of the tubs. Above the troughs for carrying off the water was a platform extending all the way around the building, and from this platform there were steps leading down between the tubs to the floor level, on which the troughs and tubs rested.

This arrangement permitted an employé serving the tubs to go from a tub on one side of a trough to a tub on the other side, or from a tub in one row to a tub in another row, without stepping across or jumping over a trough, which was dangerous and strictly forbidden. The space between the bottom of the steps and the side of the trough .was some 3 or 4 feet. Each tub was fitted with .a plug, driven in with a mallet, which was loosened by the use of a stick, when the water in a tub was to be changed, and thus 'the boiling water discharged into the trough.

The tubs were emptied at frequent intervals, several tubs at a time, and whenever this occurred steam was formed in large quantities, like a dense fog, so that the tubs and troughs could scarcely, if at all, be seen even by a person close to them. The building was lighted with windows over the aisles on each side and with rows of arc lights, suspended from the ceiling, some 15 to 18 feet above the troughs. McCullen began work for defendant in April, 1916, in the beater house.

Two or three weeks later he was made gateman of No. 4 tub house, and continued in that service most of the time until the 18th of the following December, when he received the injuries for which he sues. His duties were mainly to attend the gates and regulate the flow of nitrated cotton and water into the various tubs, to insert plugs in the openings of the tubs when they were to be filled, and to remove the plugs when the tubs were to be emptied.

In the 7 months and upwards before the accident he became expert in a kind of work which required no particular skill, and was of course perfectly familiar with the premises. Coming, now, to the way he claims to have been injured, we quote his own testimony. After stating that he had occasion to go to tub No. 2 in tire first aisle, to put in a plug, he says: “I went down to No. 2 tub, down the steps.

When I went down the steps, I bad to turn to the right to fit my plug, and I walked along carefully, and I could not see anything, and I got a little too far, and I ran against that trough with my left leg, and then I fell and caught on each side of the trough with my hands, and my legs went in up to my knees in the hot water.” We have great difficulty in believing that plaintiff was hurt in the manner thus described.

If, as he asserts, the steam was so dense that he could not see the trough, and so ran against it and was thrown from his balance, it is certainly remarkable that he happened to fall across it or over it in such a way that his hands grasped its invisible edges, some 18 inches apart, and still more remarkable that somehow his feet and legs up.to the knees, and no other part of his body, got into the scalding water.

In short, his account of the accident is far from con-vinciug, and the effort to visualize it or imagine it serves only to strengthen the impression of its improbability. ¡But as the record shows that plaintiff, using a

section of the trough for the purpose, made or attempted a demonstration of the occurrence in the presence of the jury, which they apparently accepted, and as it cannot perhaps be affirmed with certainty that what he says happened to him is physically impossible, we are not prepared to reverse the judgment on that ground, and turn therefore to other questions raised by the assignments of error. The suit is based on alleged failure to provide plaintiff with a reasonably safe place in which to work.

More specifically it is averred that he continued in a hazardous occupation in reliance upon a promise to remove or materially reduce the danger to which he was exposed, as will presently be explained. It is not claimed that the building and appliances therein used were in any respect improperly designed or constructed; nor is it a case where anything broke, or gave way, or got out of order.

In a word,'the hazard incurred bj the plaintiff was a necessary condition or incident of the work in which he was engaged, as that work was originally planned to be carried on, and as it was in fact carried on, as respects this particular tub, up to the time of the accident. Moreover, there was no lack of proper rules, which employes were enjoined to observe for their own safety. In these rules plaintiff was fully instructed at the outset, and he understood them thoroughly.

Indeed, he admits on cross-examination that “there was not much danger in working there, if you were particular, and kept from crossing the trough, and obeyed the rules.” It will thus be seen that the case narrows down to and turns solely on the alleged promise to supply additional lights, and that contention will now be examined.

The. testimony of plaintiff and his fellow workman, Page, is to the effect that they were talking together some 10 days or so before the accident, and came to the conclusion “that it was dangerous to continue doing work that way in that light”; that they “thought flash lights would be a big help to us”; that Page said he was going to ask for them, and plaintiff said, “Ask for me, too;” that accordingly he spoke to Saunders, the foreman, about flash lights and told him “that I thought it would help us”; that Saunders said he would take it up with the supervisor; that shortly afterwards he was informed by Saunders that “a row of lights would he put above the trough in a few days, that there was a contract”; and that he reported to plaintiff what Saunders had said.

This is the promise on which plaintiff relies. Now, assuming that notice to this foreman was notice to defendant, which seems to us at least doubtful, it does not appear that Page, in talking with Saunders, made mention of plaintiff, or referred to him in any way, unless by the use of “us” — and there were a number of other employes in the building — -and certainly said nothing which apprised Saunders that plaintiff was complaining of inability to see or asking for additional lights, much less that he had in mind to quit his job if such lights were not provided.

In other words, there is at best but a shadow of proof that defendant is chargeable with knowledge of any request by plaintiff for more light, or that it ever made a promise in that regard of which he can claim the benefit. Especially is this so in view of Saunders’ denial that he made the alleged promise or had any authority to make it. We disregard the testimony relating to flash lights for several reasons. In the first place, we think it inadmissible under the pleadings.

The sole negligence charged in the declaration is.the failure of defendant “to comply with its said promise to provide rows of electric lights over, said troughs,” and its failure “to have said building in any other way sufficiently lighted.” But this carries no suggestion that plaintiff should have been furnished with flash lights, which we suppose to be hand lights of some sort, in no way connected with any provision for properly lighting the building.

In effect, therefore, the testimony brought in a new and distinct charge of negligence, which defendant had not been called upon to meet, and which it was apparently unprepared to meet; for the deposition of Saunders, the only person who could contradict Page, was taken in advance of the trial, because he had left defendant’s employ and gone to another state, and naturally he was not interrogated at all on the subject of flash lights. In the second place, it is not claimed that any promise was made to furnish flash lights.

On the contrary, plaintiff understood from Page that flash lights would not be furnished, and manifestly he did not remain at work because he expected that lights of that kind would be provided. The gravamen of his cause of action is defendant’s failure to keep a definite promise, namely, to place “rows of electric lights over said troughs,” and his suit is not aided by the conceded refusal to do something entirely different. Moreover, there was no showing that the use of flash lights was either feasible or safe. The mere belief of plaintiff and Page that such lights “would be. a big help to us” was not enough.

This nitrated cotton,, which was 'passing through the building in large volume, was quite harmless so long as it was kept wet, but highly inflammable and dangerous in a dry state. It was therefore incumbent upon plaintiff, if his declaration had so permitted, to prove not only that flash lights would have been of material benefit, but also that they could have been used with reasonable safety, and this he failed to do. In short, we are of opinion that the entire testimony in regard to flash lights should be left out of account.

This brings us to the question whether negligence can be predicated on the fact that defendant did not do what Page says the foreman promised; that is, put electric lights over the troughs. As above observed, this is not the ordinary case of work, or place to work, becoming more unsafe, and the employe’s risk increased, because some appliance was defective or got out of order; it is rather the less frequent case of work, or place to work, of such inherent character as to involve a degree of hazard under normal conditions and with every appliance operating according to its design.

In such case, we apprehend, the injured employé, whose suit depends on an-alleged promise of betterment, must show that it would have been practicable and substantially. useful to do what he claims was promised. Especially so where, as here, the making of the promise is denied, for surely in that case there can be no presumption of feasibility.

Plaintiff was, therefore, bound to give proof which would justify tlic jury in finding that it would have been safe and helpful to place electric lights over the troughs, as he says he expected would be done; but careful study of the record satisfies us that no such proof was presented.

It is true that a witness for defendant is reported as saying near the close of his cross-examination, “that if those lights had been dropped so that they were right over the trough, then anybody who came down the steps would have seen the lights before they got to the troughs.” But this apparently had reference to the arc lights suspended from the ceiling, for the witness had previously said, also on cross-examination: “That if tbey liad liad, drop lights at intervals, * * * so that, they would have come right down over the lower trough, they could not have seen this lower trough when the steam came on; that they might have seen the lights if yon could have gotten right at the lights; * * * that while you are walking along the platform, with the 100-watt light shining up there, you could not see the light; ° * * that a man standing on the platform could not see the 100-watt light right at him practically.” In short, so far from any showing that the lights here in question would have been efficient and usable, the testimony of this witness,' taken as a whole, is of distinctly opposite import.

The situation we are dealing with is described by defendant’s safety engineer as follows: “That lights over trough would not have been effective in illuminating trough to a man standing beside it, as steam was too dense to be penetrable; could not see the trough; that the lights over this trough, which were put down.after the accident, were removed, as they did not give the benefit anticipated ; became impracticable because of the fumes arising from the hot water; steam and fumes combined, eat out the wiring and made short circuits, making a greater hazard; that the cotton in the trough has all the explosive qualities of gun cotton; that if kept wet it will not burn, being unconfined., and if confined it will explode; that cotton sometimes gets dry, and a short, circuit might cause a flash extending the entire distance of the house, if there were little particles of cotton on the tubs, and that even if it should strike a remote part of the building it would lire and explode. * * * That there is no practicable way of getting rid of the steam more than is done.” Of all this, as well as the testimony of other witnesses to the same effect, there is no attempt at contradiction and nothing to show that the facts were otherwise.

Not only, therefore, has plaintiff failed to furnish the" proof which we deem essential to his recovery under the circumstances here disclosed, but it seems to be convincingly established that such lights as he says were promised would not have been of material benefit and could not have been safely installed.

What has thus been said regarding defendant’s alleged promise, on which plaintiff appears mainly to rely, applies with still greater force to his further charge of failure “to have said building in any other way sufficiently lighted.” Taking into account the nature of his work and the conditions under which it was necessarily performed, we are clearly of opinion that he cannot maintain an action on any such vague and general allegation of negligence.

Under his complaint that he was not provided with a reasonably safe place in which to work, the burden >vas upon him to show with some degree of definiteness and certainty what the defendant could have done, safely and effectively, for the better lighting of the building; and so, as we think, it was error to charge the jury that plaintiff could not recover, “unless * * * or unless the defendant could have supplied lights other than those requested that would not have been dangerous, and that were necessary to make the place of work reasonably safe,” for such a qualification but opened the door to conjecture and permitted a verdict wholly unsupported by proof.

On the record before us there is no evidence which would warrant the jury in charging the defendant with negligence, and it must therefore'be held that plaintiff’s injury was caused by his own carelessness, or resulted from risks which he voluntarily assumed. Reversed.