American Heating & Plumbing Co. v. Keene

Fifth Circuit

American Heating & Plumbing Co. v. Keene

96 F.2d 170, 1938 U.S. App. LEXIS 3451

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 27, 1938

DocketNo. 8733

StatusPublished

Cited by1 cases

This text of 96 F.2d 170 (American Heating & Plumbing Co. v. Keene) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Heating & Plumbing Co. v. Keene, 96 F.2d 170, 1938 U.S. App. LEXIS 3451 (5th Cir. 1938).

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Opinions

SIBLEY, Circuit Judge.

E. V. Keene, employed as a pipe fitter by American Heating & Plumbing Company, sued it for a negligently inflicted injury to his hand while at work. A verdict for the defendant was instructed on the first count, which alleged defects in the pipe wrench which was in use, but the second count, which alleged that the master had failed to use a method of work which was safe and had chosen one which exposed the servant unreasonably to danger, was submitted to the jury and a large verdict returned. . We need decide only whether the motion of defendant for an instructed verdict on the second count should have been sustained.

The evidence is that a crew of pipe fitters, directed by one Ludenlaub as foreman, was engaged in dismantling a steam heating plant in a public school building in Meridian, Miss., in order to install a new plant. A rain set in before quitting time which prevented outside work, and Ludenlaub to use their time put the men to salvaging fittjngs from old pipes which had been taken down in the basement. They were attempting to remove a cast-iron elbow from a piece of 4-inch pipe about 10 feet long. The pipe was laid upon the cement floor with something under the elbow end to raise it above the floor, and a 48 inch Stillson wrench was placed on the elbow and tightened by the foreman. The wrench was set at an angle of about 45 degrees with the floor,' and was to be pressed downwards to unscrew the elbow. The pipe was gripped by heavy pipe tongs and held by other men upon the floor to keep it' from turning. Two negroes on the wrench had failed to move the elbow and the foreman directed Keene to help them, and after adjusting the wrench told them to “Come down on it.” Under the force applied by the three men the elbow either cracked or suddenly turned, no one knew which, and the wrench went to the floor, catching Keene’s hand under the end of it. The injury was not at first thought serious, but an abscess, developed which caused a permanent disablement. The evidence further is that the method pursued is a usual one on jobs away from the shop, that the crushing or sudden turning of fittings often happens and wrenches slip and hands are in constant danger of being mashed. Pipes may also be fastened in pipe vises to be disjointed; and when additional power is needed on the wrench a piece of pipe may be slipped over its handle so as to lengthen it and give greater leverage. There was a pipe vise- such as is usually carried to jobs in the yard outside in the rain, but the foreman said he did not know whether it was large enough to handle a 4-inch pipe. Another witness, a disinterested contractor, said so large a pipe could not be handled in such a vise because the great force necessary to be applied would overturn the tripod or bench to which the vise was fastened.

[171]*171Supposing the foreman to be the representative of the master rather than a fellow servant, we do not think the facts show him negligent. The Stillson wrench, a simple and universally used tool, was in good order and was properly set by him. The command to bear down on it was not a negligent but a necessary and usual command. Keene very well knew that the purpose was to push the wrench toward the floor, and that, if the wrench should slip or the fitting suddenly turn, the wrench would go to the floor suddenly. He did not need to be warned of that. He also knew that in such a case if he put his hand under the end of the wrench that it would be mashed, for it would be the end of the wrench that would make contact with the floor. Yet he grasped the end of the wrench instead of merely pressing down on it, and in that way got his hand caught. The thing they were doing was a common and well-understood procedure. It was not dangerous if common skill and prudence were exercised by the men. The vise out in the rain would probably not have served. At least it is not proven that it would. To lengthen the wrench handle by putting a piece of pipe on it would have made no difference if Keene had grasped the end of the pipe. If the negroes pushed too hard — there is no testimony that they did— it was the fault of fellow servants. We do not see that the master is shown to have done or omitted anything that would charge him with the accident. The jury ought to have been so directed. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

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SIBLEY, Circuit Judge.

E. V. Keene, employed as a pipe fitter by American Heating & Plumbing Company, sued it for a negligently inflicted injury to his hand while at work. A verdict for the defendant was instructed on the first count, which alleged defects in the pipe wrench which was in use, but the second count, which alleged that the master had failed to use a method of work which was safe and had chosen one which exposed the servant unreasonably to danger, was submitted to the jury and a large verdict returned. . We need decide only whether the motion of defendant for an instructed verdict on the second count should have been sustained.

The evidence is that a crew of pipe fitters, directed by one Ludenlaub as foreman, was engaged in dismantling a steam heating plant in a public school building in Meridian, Miss., in order to install a new plant. A rain set in before quitting time which prevented outside work, and Ludenlaub to use their time put the men to salvaging fittjngs from old pipes which had been taken down in the basement. They were attempting to remove a cast-iron elbow from a piece of 4-inch pipe about 10 feet long. The pipe was laid upon the cement floor with something under the elbow end to raise it above the floor, and a 48 inch Stillson wrench was placed on the elbow and tightened by the foreman. The wrench was set at an angle of about 45 degrees with the floor,' and was to be pressed downwards to unscrew the elbow. The pipe was gripped by heavy pipe tongs and held by other men upon the floor to keep it' from turning. Two negroes on the wrench had failed to move the elbow and the foreman directed Keene to help them, and after adjusting the wrench told them to “Come down on it.” Under the force applied by the three men the elbow either cracked or suddenly turned, no one knew which, and the wrench went to the floor, catching Keene’s hand under the end of it. The injury was not at first thought serious, but an abscess, developed which caused a permanent disablement. The evidence further is that the method pursued is a usual one on jobs away from the shop, that the crushing or sudden turning of fittings often happens and wrenches slip and hands are in constant danger of being mashed. Pipes may also be fastened in pipe vises to be disjointed; and when additional power is needed on the wrench a piece of pipe may be slipped over its handle so as to lengthen it and give greater leverage. There was a pipe vise- such as is usually carried to jobs in the yard outside in the rain, but the foreman said he did not know whether it was large enough to handle a 4-inch pipe. Another witness, a disinterested contractor, said so large a pipe could not be handled in such a vise because the great force necessary to be applied would overturn the tripod or bench to which the vise was fastened.

[171]*171Supposing the foreman to be the representative of the master rather than a fellow servant, we do not think the facts show him negligent. The Stillson wrench, a simple and universally used tool, was in good order and was properly set by him. The command to bear down on it was not a negligent but a necessary and usual command. Keene very well knew that the purpose was to push the wrench toward the floor, and that, if the wrench should slip or the fitting suddenly turn, the wrench would go to the floor suddenly. He did not need to be warned of that. He also knew that in such a case if he put his hand under the end of the wrench that it would be mashed, for it would be the end of the wrench that would make contact with the floor. Yet he grasped the end of the wrench instead of merely pressing down on it, and in that way got his hand caught. The thing they were doing was a common and well-understood procedure. It was not dangerous if common skill and prudence were exercised by the men. The vise out in the rain would probably not have served. At least it is not proven that it would. To lengthen the wrench handle by putting a piece of pipe on it would have made no difference if Keene had grasped the end of the pipe. If the negroes pushed too hard — there is no testimony that they did— it was the fault of fellow servants. We do not see that the master is shown to have done or omitted anything that would charge him with the accident. The jury ought to have been so directed. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

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96 F.2d 170, 1938 U.S. App. LEXIS 3451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-heating-plumbing-co-v-keene-ca5-1938.

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