63 So. 609 | La. | 1913
Statement of the Case.
Plaintiff brought this suit to recover, for the use and benefit of his minor son, damages for personal injuries sustained by the latter whilst in the employ of the defendant, and the minor (thereafter, attaining his majority) substituted himself in place of his father and adopted the petition filed in his behalf. Defendant answered, and the case was called for trial, whereupon defendant, through counsel, objected to the introduction of evidence, on the ground that the petition discloses no cause of action; and, after some argument and objection to the course proposed, the question presented was taken under advisement and the case
“From the allegations of plaintiff’s petition, the court is of opinion that plaintiff knew of the defective pulley, the’ danger of repairing it, and also the insecure foothold of the shavings for the ladder on which plaintiff was to stand while fixing the pulley, and that, knowing the danger, he assumed the risk.”
The petition, from the face of which our learned Brother reached the conclusion thus stated, in so far as it hears upon the question at issue, reads as follows:
“That his minor son, Edward, was during the month of April, 1911, employed [by defendant] as an experienced apprentice, in the molding department, and worked in said capacity for three years prior to the accident hereinafter set forth, acting all the while under the direction of said factory, its superintendent, agents, and vice principals. That on April 6, 1911, he was told, by Walter Potter, who was assistant to the superintendent, John Brinker, to babbitt a loose pulley, which had had no babbitt for over a week previous, which fact was known to the defendant company, its agents and employés, and which was also known to your petitioner’s son, who advised the superintendent of the condition three days prior to the accident. * * * That the said pulley was in bad condition — the gum material of which it was made being worn out and sticky from constant use — and should have been replaced by a better and more substantial one, which fact your petitioner only learned after the accident. * * * That with the purpose of readjusting and repairing said pulley, your petitioner’s minor son * * * was directed to place a ladder on a flooring covered with shavings over three feet deep, and ascend the ladder, for the purpose of tying the belt. That in the act of throwing the belt off, the ladder, the bottom of which had spikes, turned around to the left, while your petitioner’s son was in the act of tying the belt, to keep it off the shaft, your petitioner’s son’s left wrist was caught, pulling him into the shafting, shoving his left arm in the 36-inch pulley, lacerating and mashing his left arm, so that, after an investigation, * * * amputation of the arm from the elbow became necessary. * * * That the belt was of gum, and had become rotten, from the constant use of 2% years, and was not fit for use, because of its gummy and sticky condition, and which was one of the proximate and immediate causes of the accident ; the gummy and sticky condition of the belt being such that it adhered to his son’s fingers and hands, which compelled him to overexert himself in order to release its hold, and which extra exertions contributed to the turning of the ladder, which was standing on a very uncertain, unstable, and insecure foundation of shavings,'the condition of the belt being well known to the defendant company, for immediately after the accident, they replaced it by a new one. * * * That the immediate and proximate causa of the accident * * * was: (1) The insecure and uncertain foothold, of shavings, for the ladder, which fact was known, or should have been known, by the defendant, its officers, agents, and employés; and (2) the rotten' and unsafe condition .of .the belting, which, from its gummy and unfit condition, rendered it unsafe to handle, and contributed to the accident,' by the gum adhering to his fingers, so that he could not remove his hands in time to avoid the accident, and because his effort to withdraw his hands contributed to the shifting of the ladder, by the ladder turning around, compelling petitioner’s son to 'lose his balance on the ladder. That, notwithstanding the task assigned to petitioner’s son was extremely dangerous and risky, which fact was known to the company’s agents and representatives, and which fact was not known to the .petitioner’s said son, his said son was ordered to go up the ladder, the ends of which were placed on an insecure and unsafe foundation of shavings, endangering his life, and resulting in the loss of his left arm from above the elbow, destroying his usefulness in a trade in which he had almost completed his apprenticeship. * * * That his said son * * * was, at the time of the accident, 19 years of age,” etc.
Opinion.
(a) A soft white anti-friction metal, of varying compositions, as of 4 parts of copper, 8 of antimony, and 24 or 96 of tin (the alloy with the smaller proportion of tin being called ‘hardening,’ that with the greater, ‘lining’); (b) any of several alloys, similarly used.”
To “babbitt” is “to line or furnish with babbitt metal.” And “babbitting jig” is “amolding box in which bearings or bearing brasses are placed while being babbitted. A
At one place in the petition it is alleged “that the said pulley was in bad condition, the gum material of which it was made being worn out and rotten and sticky from constant use,” etc., but we take it that the allegation was made inadvertently, as pulleys are not made of “gum material,” and the adjectives, “rotten, gummy,” and “sticky,” are subsequently applied to the belt.
It is not alleged that plaintiff was directed to babbitt the pulley, but, as we understand the petition, he was directed, as a necessary preliminary to that work, to throw the belt off the pulley and tie it back, and was engaged in throwing it off when it stuck to his-hands, whereupon he endeavored to release his hands, and his efforts to that end added to the insecure footing of the ladder, caused the ladder to shift its position by turning, as ¿ result of which his wrist was caught, and' he was pulled into the shafting and pulley and his arm was mashed, etc. It is not alleged that he was directed to throw the belt off the pulley and tie it back while the pulley or shafting were in motion, and though it is evident that he undertook the job under those conditions, defendant is not charged with fault on that account. The idea intended .to be conveyed by the petition appears to be that there were two contributing causes,, without both of which the accident would' not have happened; that is to say, though plaintiff made an effort to release his hands from the sticky belt, which effort would not have been required if the belt had been in proper condition, there would have been no accident, on that account, if the ladder had been securely planted; and, on the other hand, though the ladder was insecurely planted, there would have been no accident on that account if the sticky belt had not necessitated such effort. In that way of putting
Judgment affirmed.