Cash v. Casey-Hedges Co.

139 Tenn. 179

• Court: Tennessee Supreme Court
• Decided: September 15, 1917
• Status: Published

Opinions

Mb. Justice Pehtbess

delivered the opinion of the Court.

This action was brought by the administrator of Gr. W. Hash, who was fatally injured by the fall of a smokestack, against Casey-Hedges Company, J. B. McCrary Company, and the town of Lenoir City, to recover damages for the alleged negligent killing of the intestate. At the close of the plaintiff’s evidence the trial judge directed the jury to find a verdict for all the defendants, and the plaintiff appealed to the court of civil appeals, where that judgment was affirmed as to Lenoir City, and reversed as to the other defendants.

The town of Lenoir City cóntemplatéd the erection of a water and sewerage system, and employed the J. B. McCrary Company to act as engineers and to superintend the construction of same for which it was to have been paid a percentage of the cost. The municipality also entered into a contract with the Casey-Hedges Company, whereby the latter agreed to furnish and erect for it two boilers and a smokestack. After the work had progressed to some extent, the contract between Lenoir City and McCrary Company was changed so that the latter undertook to complete the then unfinished portion of the improvements. However, the Mc-Crary Company did not, in any respect, control the manner in which the Casey-Hedges Company did its part of the work.

On the day he was killed, the deceased was employed as a brick mason by the McCrary Company, under its foreman Wilson, in building a wall around the two boilers which had theretofore been erected by the Casey-Hedges Company. At about twenty-five feet from the place where Cash was laying brick, the Casey-Hedges Company, through its foreman Hannah and his laborers, was endeavoring to erect, upon a foundation constructed for the purpose, a smokestack sixty feet long and four feet in diameter, the weight of which was approximately 4,000 pounds.

At the time of the accident, Hannah and his men were elevating the smokestack to a vertical position, by means of what is called in the record, a “gin pole,” to which was- attached a pulley, through which ran a rope, and at the end of the rope there was an iron or steel hook. A rope had been tied around the stack, and to this rope the hook was attached, and it was proposed to lift the smokestack from the ground by pulling upon these ropes. It is stated in the record that by reason of the fact that the gin pole was too short, it was necessary to place the rope, which went around the stack, between the middle and the lower end of the stack. In order to keep tHe upper end of the stack from overbalancing the lower end, the center of gravity being below the middle of the stack, iron doors and beams, weighing about 1,000 pounds, were attached to the lower end of the stack, making its entire weight, with attachments, about 5,000 pounds.

Cash was employed that morning one hour and twenty minutes before the accident occurred which resulted in his death. When he went to the place to go to work, one end of the smokestack was on the ground and the other was on an elevation ten or twelve feet high. He observed what was contemplated to be done, and remarked to one Long, another bricklayer, that it looked “a little risky.” “I reckon they know their business or we would not be here working.” The proof shows that perhaps an hour after this, Hannah, the foreman of Casey-Hedges Company, in speaking to his crew, said: “Look out, boys; there is no telling what might happen.” The record does not show that Cash heard this warning, nor does it appear that Hannah notified him otherwise of the danger. However, about twenty minutes before the stack fell, and perhaps when most of the weight of the stack was upon the equipment, Cash became apprehensive, and stated to Wilson, the foreman of his employer, that he thought what was being done was dangerous. Evidently the situation justified apprehension, as one of the witnesses in the record testified that he had gone to the place for the purpose of obtaining employment, bnt, when lie saw the situation, he did not ask for. a job, because he thought the place was dangerous. In response to the state-É ment of Cash that he thought what was being done was dangerous, Wilson replied that it was safe, and thereupon Cash resumed his work.

About twenty minutes after this conversation occurred the stack, fell, inflicting injuries upon Cash, from which he died. The fall was caused by the breaking of the hook. An inspection of the hook, after the fall, showed that there was an old defect in it. It is improbable, however, that it would have held the weight put upon it if it had not been defective, as one of the witnesses, having some knowledge of such matters, testified that it was one inch in diameter, and that the capacity of such hooks was 2,000 pounds.

The plaintiff has filed a petition for certiorari, and assigns error, to the action of the court of civil appeals in affirming the judgment as to Lenoir City; and J. B. McCrary Company and Casey-Hedges Company have likewise filed petitions for certiorari, and assigned error to the action of the court of civil appeals in reversing the. judgment of the circuit court. All of the petitions were granted, and the case was argued in this court.

As to Lenoir City, we think the suit should have been dismissed.

We cannot say that the’ erection of smokestacks, similar to the one in this case, is necessarily dangerous, when done with care by persons who have skill in sneh matters, and the record does not show that the municipality knew Casey-Hedges Company was incompetent, or that it controlled the methods or appliances adopted by the latter in performing the work. McHarge v. Newcomer, 117 Tenn., 595, 100 S. W., 700, 9 L. R. A. (N. S.), 298; Davis v. Lumber Co., 126 Tenn., 576, 150 S. W., 545; Powell v. Construction Co., 88 Tenn., 692, 13 S. W., 691, 17 Am. St. Rep., 925.

As to Casey-Hedges Company it is quite plain that it was under the duty of warning every person sufficiently near to the stack to be struck in the event it fell. In 29 Cyc., 474, it is said':

‘‘Where one is performing some act which is likely to be dangerous to persons in the vicinity, it is his duty to warn such persons of the danger;” furthermore, the “notice must be sufficient to apprise the persons notified of the danger.”

The danger of the collapse of the stack increased as it was elevated. The fact that Hannah, the foreman of this defendant, told his crew to be on the lookout, as he did not know what might happen, shows that he feared the smokestack might fall. He knew that Cash was engaged in laying brick and not in a position to observe what was being done.

If it be admitted that the deceased was guilty of contributory negligence in working in a position which had the appearance of danger, still this will not excuse the defendant from liability where it constantly increased his peril, knowing that the deceased did not appreciate the danger and was not in a position to avert the accident and its consequent injury. Such conduct is mildly characterized as gross negligence; it is rather willfulness or wantonness. What was said by this court in Railroad v. Roe, 118 Tenn., 611, 102 S. W., 343, is so apt here that we quote at some-length from the opinion:

“In Railroad v. Pugh, 97 Tenn., 627, 37 S. W., 555, this was said: ‘The rule at common law and in this State still is that any contribution to any injury which directly produced it would bar the action in any case where statutory provisions to the contrary do not apply.’- ...

“This rule is entirely consistent with that other, under which a party will not be ‘ excused from liability for an injury which he inflicts on another on the ground of the earlier negligence of the latter, when, aware of the latter’s exposure to peril, he omits ordinary and reasonable care to avoid the injury. When the observance of this care would have prevented the hurt, failure in that regard is actionable wrong. It is so, not only because such negligence is the proximate occasion to the injury, but for the stronger reason that it indicates wantonness, and for this the law affords no excuse.’ Railroad v. Williford, supra [115 Tenn., 122, 88 S. W., 178;] Whirley v. Whiteman, supra [1 Head, 619]. In the first one of the cases last cited this court quoted with approval from an opinion of the supreme court of Alabama, in Ga. Pacific R. Co. v. Lee, 9 South., 233, 92 Ala., 270, as to the failure of a defendant to make an effort to avoid an injury which he sees is imminent to the party who has been guilty of some negligence in placing himself in a perilous position, as follows: ‘ Such failure, with such knowledge of the situation and the probable consequences, and omission to act upon the dictates of prudence and diligence to the end of neutralizing plaintiff’s fault and avoiding disaster, notwithstanding his lack of care, is, strictly speaking, not negligence at all; but it is more that any degree of negligence, inattention, or inadvertence. It is that recklessness or wantonness, or worse, which implies willingness to inflict the impending injury, or willfulness in pursuing a course of conduct which will naturally or probably result in disaster, or an intent to perpetrate a wrong.’

“Judge Cooley, in the work already referred to, at page 674, on this point says: ‘Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of injury. The fact that one has put himself in a place of danger is never an excuse for another’s purposely or recklessly injuring him. Even the criminal is not out of the protection of the law, and is not to be struck down with impunity by persons. If, therefore, the defendant discovered the negligence of the plaintiff in time by the use of ordinary care to prevent the injury, and did not make nse of such care for the purpose, he is justly chargeable with reckless injury, and cannot rely upon the negligence of the plaintiff as a protestation.’.”

See Westborne Coal Co. v. Willoughby, 133 Tenn., 257, 180 S. W., 322; Todd v. Railroad, 135 Tenn., 92, 185 S. W., 62, L. R. A., 1916E, 555; Railroad v. Williford, 115 Tenn., 122, 88 S. W., 178.

We are of the opinion that the McCrary Company is liable for having failed to furnish its servant a safe place in which to work, notwithstanding the fact that the accident was due primarily to the negligence of a third party over whom it did not have control.

In Labatt on Master and Servant (2 Ed.), section 1028, it is said:

“Where the abnormal conditions which caused the injury are shown to have been , originally produced by a cause for which the master was not responsible, the action is or is not maintainable, according as it may appear that he was or was not guilty of a subsequent and distinct breach of duty in having failed to ascertain the existence of these conditions, or in having omitted, after discovering them, to take such steps as might be appropriate for the protection of his servants. This principle is applicable where the' abnormal conditions resulted from tffe .act of a stranger. ’ ’

This rule is illustrated by the case of Railroad v. Hayes, 117 Tenn., 680, 99 S. W., 362. The plaintiff was a brakeman in the service of the railroad, and while riding on the ladder of a box car was injured by a chute which had been placed too near the tráck by a third party. It did not appear the defendant knew of the obstruction before the accident, or was negligent in not making inquiry. This court held the railroad was not liable.

In C. & I. R. R. v. Russell, 91 Ill., 298, 33 Am. Rep., 54, the defendant was held liable for injuries received by a brakeman who was knocked from the ladder of a box car by a telegraph pole which had been erected by a third party too near the track; it appearing the railroad knew the pole was too near the track.

In Erslew v. Railroad et al., 49 La. Ann., 86, 21 South., 153, the railroad was held liable for the death of a brakeman who was knocked from the top of a box car of more than ordinary height by the wire of a trolley line stretched across the track. It was shown that the defendant knew that the wire was too low to clear a man on a high car.

We think Wilson, the foreman of McCrary Company, was culpable in telling the deceased that what was being done by Casey-Hedges Company was safe and that Cash had the right to rely upon this statement as an assurance that his employer had complied with his duty to furnish him a safe place in which to work.

In Chattanooga v. Powell, 133 Tenn., 137, 179 S. W., 808, this court held that where a servant became apprehensive of danger and was assured by his master that the place where he was working was safe, such assurance was equivalent to a statement to the servant that the master has knowledge of the matter superior to that of the servant, and that the latter could rely upon the information given, unless the danger is so glaring that a man of ordinary prudence would not have continued to work.

It is insisted, however, that in Chattanooga v. Powell, the plaintiff was an ignorant laborer and the foreman was a man of experience, and that the right of the servant to rely upon the master’s assurance of safety is based upon the latter’s supposed superior knowledge. Furthermore, it is contended that Wilson was not presumed to have knowledge, superior to that of the deceased, about the competency of the employees of a third party and the sufficiency of the devices used by it, and that in assuring the deceased that what was being done by employees of Casey-Hedges Company was safe, Wilson exceeded the scope of his authority, and therefore did not bind his master. There is much force in this argument, but we cannot assent to a rule which would absolve the master from liability for injuries to his servant due to the negligence of a third party, which negligence would not have caused injury to .the servant, but for the negligence of the master in failing to perform a duty he owed to his servant. Such a situation presents a case of concurrent negligence.

Wilson told Cash that what was, being done was safe, yet the appearance of danger was sufficient to arouse apprehension. It is not shown that he made inquiry as to the likelihood of the collapse of the stack and rigging or an inspection of the latter, with the view of ascertaining its adequacy to the strain .put upon it. It was manifest that the deceased could not be on the lookout while performing his duties, and that he would likely he crushed if the stack fell.

In Clark v. Union Foundry Co. et al., 234 Mo., 451, 137 S. W., 577, 45 L. R. A. (N. S.), 295, the electric street railway company in St. Louis contracted with Stuart & Co. to make certain improvements near its power plant. A contract for erecting a coal chute was sublet to the Union Iron Foundry Company, of which plaintiff Clark was an employee. In order to construct the chute it became necessary to erect a gin pole, and for that purpose the plaintiff was directed by his foreman to ascend a pole of the street railway company to which were attached cross-arms, upon which were defectively insulated feed wires. Plaintiff ascended the pole, and, without notice from the street railway company of the danger, was in the act of pulling a rope over the wires when he was shocked and sustained serious personal injuries. He did not know that the insulation was not sufficient to protect him. The foreman who directed him to do what he did was also ignorant of the fact that the insulation was insufficient. In a suit against his employer to recover for his injuries, the plaintiff obtained a-judgment. The .contention was made that as “the pole and wires were not on the premises where appellant was required to work, the respondent had no authority or control over the same, and consequently had no right to go npon the pole and wires for the purpose of making an inspection of them.” The court said:

‘ ‘ This contention in our opinion, is unsound, for the. reason that‘the dangers which make the place where the servant is required to work unsafe need not constitute a part and parcel of the place itself, but the danger may, as is often the case, be separate and independent of the place itself, yet so near thereto as to make it reasonably certain that persons while working there are liable to come in contact with said nearby danger and be injured thereby. The test is not that the place of itself is reasonably safe, but it must be reasonably safe from all internal and external dangers which are liable to do injury to tile servant. It might be that the building, for instance, in which the servant is required to work, is unusually strong and has no inherent defects or dangers whatever, yet who would for one moment contend that the same building would be a reasonably safe place for people to work if on the adjoining lot. there stood a much larger and taller'building, so weakened by storm or fire that it was on The very verge of falling on the smaller.”

In Griffith & Sons Co. v. Brooks, 197 Fed., 723, 117 C. C. A., 117, the plaintiff was employed to work in a building partially destroyed by fire. His master employed one Bishop, an independent contractor, to take down a portion of the walls. For this purpose Bishop installed a derrick upon the roof of an adjoining building. The derrick fell, causing the walls to collapse and injure the plaintiff. An inspection showed that, the derrick was defective and not of sufficient strength to do the work which was attempted to be done with it.

In a suit, against the master for injuries sustained by the plaintiff the court held the defendant was liable, and, in the opinion, said:

“In the view we take of the case, it is not important what the precise legal relations were that existed between Bishop and the company. The company caused the derrick to be brought there as one of the instrumentalities needed in the performance of its contract to restore the building. The company knew that the derrick stood on the west edge of the building next east of the injured buildings, and that the use of the derrick involved the swinging of the boom with its loads over them. It is manifest that, unless the .derrick was securely fastened, such use of it was a menace to persons working within these fragments of buildings. In these circumstances and conditions, the company was carrying on the work within these fragments. As it seems to us, this case is not wholly conceived or stated when it is said that the effect of the relations between Bishop and the company was, as regards the installing and use of the derrick, to absolve the company from all responsibility to, the plaintiffs. The controlling question is whether the company can escape the general rule that it is the master’s duty to exercise due care to provide for his servants a reasonably safe place in which to work.' This rule is founded upon the master’s possession and control of the premises in which he puts his servants at work.”

In Raxworthy v. Heisen, 274 Ill., 398, 113 N. E., 699, it appeared that Raxworthy was employed by the defendant as a stonecutter. An independent contractor also employed by defendant, operated an elevator for the purpose of hoisting and placing stone in the building under construction. Raxw.orthy.was directed to work near the elevator, and it fell and killed him. The proof showed that the wire cables suspending the elevator were rusty and defective and of insufficient strength to lift the loads put upon it.

In a suit by the administrator of the deceased the defendant was held liable. The court said:

“The question then presented is whether plaintiff in error owed his own servants the duty of using-reasonable care to see that Shand, as an independent contractor, did not, by the negligent use of defective appliances in the performance of his work, make unsafe or dangerous the place where plaintiff in error’s servants were required to work. . . . The plaintiff in error should have either required the defect remedied, or have moved deceased to a place to work, where he would not have been exposed to the danger-. An injury to plaintiff in error’s employee as.the result of the use of a defective cable might have been anticipated as probable, and that the master should be held liable in such case seems to us reasonable and just. If the injury could not have been anticipated as the probable result of the use of the defective cables, a different rule would apply.”

In the last two cases the master may he said to have brought his servant and the independent contractor together, as he employed both of them to work at the same place; but this fact did not make him liable. Liability in both cases was predicated upon the master’s breach of duty to his servant in failing to furnish him a safe place in which to work, and not upon the theory that he was liable for the negligence of the independent contractor.

The judgment of the court of civil appeals is affirmed.

LaNsdeN, J., dissents as to the judgment dismissing the suit as to Lenoir City. Williams, J., dissents from the judgment as to the J. B. McCrary Company.