Escher v. Southwark Mills Co.
Escher v. Southwark Mills Co.
Opinion of the Court
Opinion by
This case was submitted to the jury in a clear and adequate charge to which no exception was taken and no error is assigned. The learned judge was entirely accurate in his statement of the law applicable to the case, and pointed out in de
The defendant contends that the plaintiff knew and, therefore, assumed the risk of the employment, and that his injuries resulted from the negligence of a coemployee in handling the loose rope which was used in removing the iron barrel of caustic soda from the floor to the top of the tank in which the soda was to be emptied from the barrel. It is further claimed by the defendant company that the method used by it in handling the caustic soda was not the proximate cause of the accident by which the plaintiff was injured, and hence it is not responsible in this action.
The evidence clearly discloses that the plaintiff was an ignorant German, not familiar with the English language, and had been employed by the defendant for some time prior to the accident to work on or operate a machine. He was called from this service into a dark frame shed to assist three other men in removing this iron barrel containing caustic soda from the floor to the top of the tank into which the soda was to be emptied. It appears, and is undisputed, that this iron barrel was about three feet long and one and a half feet in diameter, and that a hole had been cut in one of the heads, the diameter of which was about six inches less than the diameter of the head itself. When the plaintiff appeared on the scene to assist the other three workmen in hoisting the barrel, there was a piece of burlap in the hole in the head of the barrel, placed there of course to prevent the soda from leaving the barrel. While the barrel was being rolled up the incline and when it was within about one foot of the top, the burlap came out of the hole, and the soda ran out and part of it got in the plaintiff’s eye and injured it very severely.
The evidence in the case does not support the defendant’s position that the plaintiff knew of the risk incident to the work of removing the barrel of caustic soda from the floor to the top of the tank. The plaintiff testified positively, that he did not know of the danger. He admits they put oil on his hands and told him not to touch the barrel with the blank hand, but he testified that he did not know that caustic soda was in
If the plaintiff’s injuries resulted from the negligence of a coemployee in adjusting the rope used in taking the barrel of soda to the top of the tank, the defendant company is not responsible for the injuries, and there could be no recovery in this action. And this was the view of the learned judge, and he distinctly so ruled on the trial of the cause. In his charge to the jury he said : “ That paper (referred to above), says it was the use of the rope that did this thing, and, of course, it was the use of the rope by the defendant’s people, employees as we call them. It was not used by anybody else. We cannot avoid that conclusion. The defendant’s servants were there acting. If you find it was so used by those men, and that as a consequence of that use this accident happened, it will be your duty to find a verdict for defendant.” In concluding his instructions on this branch of the case the learned judge further told the jury that if the use of the rope caused the injury there could be no recovery, and clearly defined the issue which he submitted to the jury. He said : “ If you find from the discretion I have recognized as yours in the examination of these proofs that there was a negligent furnishing of appliances in the matter of the barrel, in the matter of the burlap, and so forth, which amounted to a violation of the defendant’s duty to the plaintiff, and that as a consequence of that he was hurt, then you may find a verdict for the plaintiff, but in order to reach that conclusion you must find that the use of the rope was not the immediate cause of the injury, but that it was some defect in the appliances which caused the injury. If you find as thus indicated to you, you will find a verdict for plaintiff, otherwise you will find a verdict for defendant.”
It will, therefore, be observed that the learned trial judge submitted to the jury the one question, whether the plaintiff was injured by the defective or unsafe appliances furnished him to perform the services for which he was employed. Un
As correctly said by a recognized authority, “ great caution is necessary in tasting and handling caustic soda, as it rapidly destroys organic tissue.” That it is a dangerous chemical and must be used with the greatest caution is well known, and, it must be assumed, was known to the defendant company. It was used by the company in its business, and its ingredients and highly dangerous character were, of course, known to the defendant. It was conveyed by the defendant to its tank in an iron barrel, which was certainly a proper precaution for the protection of those who had to handle it. Any less careful manner or method of .conveying a drug so dangerous would well warrant a jury in finding negligence if in j uries resulted therefrom. Was it, therefore, negligence in the defendant company to use for this purpose an iron barrel with a hole in one head of the dimensions shown by the testimony which was closed by placing in it a loose piece of burlap ? The testimony disclosed the fact that the edge of the hole was turned outward, and hence the material in the barrel could easily push the burlap from its place. The hole, it will be remembered, was only six inches less in diameter than the head of the barrel. The burlap was not fastened nor secured in the hole, but only “pushed in.” It is apparent that it would not, and did not, require much force to remove it from the hole. The barrel was rolled to the top of the tank, a distance of possibly twelve or fifteen feet and to a height of between four and five feet, and then was emptied by using a rope. Three men were not sufficient to do the work, and hence a fourth man, the plaintiff, was on this occasion directed by the company to assist. It is manifest that the mate
The assignments of error are overruled and the judgment is affirmed.
Reference
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- Negligence — Master and servant — Written statement — Ignorance of (he English language — Evidence. In an action by an employee against his employer to recover damages for personal injuries, where the defendant offers in evidence a statement signed by the plaintiff shortly after the accident and alleges that plaintiff’s evidence on the stand is inconsistent with the statement, and it appears that plaintiff made'the statement in the German language, that it was translated into English by another person, and written out in defendant’s office, and also that the statement was inaccurate in some minor matters, it is for the jury to determine whether the writing produced embodied accurately the statement made by the plaintiff. Negligence — Master and servant — Risk of employment — Caustic soda. In an accident case by an employee against his employer for injuries to. plaintiff’s eye caused by caustic soda, the question of defendant’s negligence is for the jury where it appears that at the time of the accident the plaintiff was helping to roll up an iron barrel of caustic soda on an incline, that in one of the heads of the barrel there was a hole only six inches less than the diameter of the head itself, that in this hole was stuffed a piece of burlap without being fastened, that the pressure of the contents of the barrel easily forced the burlap out of place, and that the caustic soda flowing out fell on the plaintiff and injured him. In such a case where the defendant offers evidence to the effect that the accident was due to the negligence of other workmen in adjusting the rope around the barrel, and that the plaintiff knew of the danger and assumed the risk, and these allegations are contradicted by the plaintiff, a verdict and judgment for plaintiff will not be reversed.