Barry v. Jones & Laughlin Steel Co., 234 Pa. 367

Barry v. Jones & Laughlin Steel Co.

234 Pa. 367 | Pa. | 1912

Opinion by

Mr. Justice Mestrezat,

This was an action of trespass brought by an employe to recover damages for injuries sustained while engaged in the service of his employer. The errors alleged in the two assignments are that the court refused to direct a verdict for the defendant, and subsequently declined to enter judgment for the defendant non obstante veredicto. The case turns upon which of two principles of law is applicable to the facts disclosed by the testimony on the trial of the cause. The position of the defendant company, the appellant, as stated by its counsel, is that the accident to the plaintiff was occasioned by the nature and the character of the work done, and that the plaintiff’s injuries were caused from dangers which arose during the progress of the work for which the company was not liable. The plaintiff, the appellee, claims that his injuries resulted from the failure of the defendant to furnish him a reasonably safe place to work, and in not using reasonable care to maintain it in such condition.

*369The defendant company is engaged in the manufacture of steel on the South Side, Pittsburgh, and the plaintiff was employed as a vessel foreman in the Bessemer department of the plant. It was his duty to see that the converters were kept in good working order and that they were kept in operation. There was a vessel floor or platform extending around the converters which was about twelve feet above the ground floor. A railroad track was constructed on the platform, and upon that track the molten metal was brought in cars, from any point in the mill to the converters and deposited in them. About fifteen feet above the vessel floor there was a roof-shield of boiler iron constructed in the shape of a right angle triangle for the purpose of protecting the superstructure and roof of the mill from discharges from the converters. The hypothenuse of the triangle was parallel with the roof, the base was the horizontal face of the roof-shield and about fifteen feet directly above the converters, and the perpendicular face of the roof-shield extended to the roof. After the molten iron is placed in the converter and it is elevated to a perpendicular position, a blast of cold air is sent through the tuyere to the interior of the converter for the purpose of expelling the slag, dross and other impurities in the metal. These impurities, called “scull” by the workmen, are discharged from the top of the converter and driven against and deposited on the roof-shield. This recrement on the roof-shield cools and hardens, and after accumulating falls, alighting on the vessel floor.

In the performance of his duties, the plaintiff was required to be on the vessel floor or platform. On the day of the accident, July 11, 1907, a portion of the molten metal in one of the cars had “spilled over” on the railroad track, and before the track could be used again it was necessary to remove the spilled metal. While the plaintiff was engaged in assisting to remove the metal, he was struck on the head by a piece of *370“scull,” knocked to the ground floor and very seriously injured. The plaintiff introduced testimony to show that it was the duty of the defendant to keep the “scull” cleaned off the roof-shield so that he and others who were required to be upon the vessel floor while engaged in operating the converters would be protected from injuries resulting from the fall of “scull” from the roof-shield. He testified that the “scull” needed constant attention, that it was the company’s business to give it such attention, and that the company had, on other, occasions, sent men with proper instruments to remove it. He says he knew that the “scull” was likely to fall, but that he also knew that it was the duty of the company to have it removed and that the company had, at other times, removed it from the roof-shield so as to protect the employes at work on the vessel floor. The plaintiff’s evidence tended to show that at the place he was required to work he could not and did not see whether there was any accumulation of “scull” upon the roof-shield at the time of the accident.

The learned court instructed the jury that if the accumulation of the “scull” on the roof-shield would and did take place, and the defendant undertook and did from time to time keep the roof-shield cleaned of the “scull”, and on the occasion of the accident neglected to do so, the plaintiff was entitled to recover; but if, as the defendant claimed, the accumulation of “scull” upon the roof-shield was a transitory danger that occurred in the progress of the work, it was not the duty of the defendant to keep it cleaned off the roof-shield and the plaintiff would not be entitled to recover.

An employer, as we have frequently held, is not liable for injuries to an employe from dangers arising during the progress of the work and caused by the work done. He is not required to stand by during the progress of the work to see when a danger arises. It is sufficient if he provides against such dangers as may possibly or *371probably arise, and gives the workmen the means of protecting themselves; they should look out for such dangers and use the means provided: Durst v. Carnegie Steel Co., 173 Pa. 162. In such cases the employer cannot anticipate the unexpected danger, and hence cannot be required to make provision against it. But the case in hand is not ruled by this principle. The accident was not caused by the plaintiff nor by a fellow employe; nor was the cause of it unexpected and not to be anticipated by the employer. In the operation of the converters, the defendant knew that the “scull” would be discharged therefrom and be deposited on the roof-shield. That was inherent in the business and was certain to occur in the operation of the converters. The plaintiff and other employes whose duties required them to be on the vessel floor had no control over the “scull” and were in no way responsible for its being deposited on the roof-shield or for its falling therefrom to the vessel floor. It was not their duty to remove it or in any way to interfere with it. The plaintiff, if the evidence is believed, did not and could not have seen the “scull” which fell and caused his injury. He was therefore not inviting the injury by standing under a known danger; on the contrary he was where his duty required him to be and where he had reason to believe he would be protected by his employer from the falling recrement. Assuming the testimony produced by the plaintiff to be credible, as the jury found, the defendant recognized the danger and on various occasions removed the “scull”.

It is clear that the question at issue in the cause is whether the defendant company furnished the plaintiff a safe place in which to perform his duties, and whether it continued to keep it in the same condition. The law is settled that it is not only the duty of the master to provide a safe place for the servant to work, but also to maintain it in a reasonably safe condition by inspection and repair. That is a direct, personal, *372absolute obligation from which nothing but performance can relieve the master. It was therefore manifestly the duty of the defendant company not only to see that the place in which the plaintiff had to work was safe when he entered upon the performance of his duties, but also to maintain the place in a safe condition while he was engaged in his work on the vessel floor. The company knew the “scull” would accumulate on the roof-shield and harden and fall, and would alight at the very point on the vessel floor where the plaintiff had to do his work. This was an ever present danger to all the employes on the floor, and the defendant company had full knowledge of it. It is true that the employes also recognized the danger, but it is equally true that if the defendant was required to keep the place reasonably safe and protect them from the known danger, it was its duty to maintain a constant vigil on the “scull” adhering t© the roof-shield, and see that it was removed before it could harden and fall to the vessel floor. The employes engaged at this place assumed the dangers necessarily incident to their employment, but this rule cannot be extended so as to relieve the defendant here from the duty to keep watch on and remove the “scull” so as to protect the employes from the danger inherent in and arising from the operation of the converters. These dangers necessarily arose from the business, and being known to the defendant company and it having the power and being its duty to afford protection against them, it cannot be heard to say that the dangers were incident to the service and therefore it is relieved from liability. The facts found by the jury, under a charge to which no exception was taken, show that the defendant company failed in its duty to furnish the plaintiff a reasonably safe place in which to perform his work, and that this' failure of duty without negligence on part of the plaintiff resulted in the injuries for which this action was brought. It follows that the court committed no error *373in declining to direct a verdict for the defendant, or in refusing to enter judgment for the defendant notwithstanding the verdict.

The judgment is affirmed.