122 Ky. 731 | Ky. Ct. App. | 1906
OPINION OF THE COURT BY
-Affirm-ing’.
This ease was twice tried in the Jefferson circuit court, common pleas branch;, second division. The first trial resulted in favor of appellant. A rehearing being granted, appellee obtained a verdict for $3,000. Appellant excepted to the order granting the new trial, filed a bill of exceptions and a transcript of the
Appellant conducted a rolling mill. Appellee, in its employ, was injured by the explosion of a tap cinder. When iron wlas being melted in a heating furnace, the dross in it was run off in a molten state through a small hole at the bottom and rear of the furnace. It was then caught in a small iron buggy on two wheels, holding some 200 pounds. When full, the buggy was drawn away and dumped, another buggy being substituted at the tap hole. This dross is called ‘ ‘ tap cinder. ” As it runs into- the buggy it is cooled by contact with the sides- and by the air, and it gradually hardens. The center, however, remains longer in a molten state, and generates- a gas which keeps the top perforated for its- escape. As- long as it escapes there is- no- danger; but, if confined, the increasing volume of gas generated will produce a violent explosion. There is a contrariety of opinion among the witnesses in the case as to the action of water upon this tap cinder. Some hold that it will have no- effect if poured on top- of the cinder in a buggy, unless it closes the vents through which the gas escapes. Others hold that it will cause an explosion in any event. At any rate, the evidence sustains the verdict of the jury, which in its result necessarily found the danger to be as first stated, and as testified to by appellee’s witnesses. Appellee was engaged for the- first time in the work in which he was injured, but a few days before the accident. His duty was to
After having worked at this job for a day or so, appellee learned through toe statement of a passing employe that it was highly dangerous, on account of the escaping water being liable to fall on a tap cinder while being removed before it was sufficiently cooled, which Would cause it to explode. He immediately complained of toe dangerous condition of the premises to the superintendent, who directed him to another superior servant, who- promised to' repair the
Appellant first contends that tbe trial court erred in granting tbe newi trial. This action of tbe court was said to be, and may be assumed to have been, rested on two1 grounds, viz.: Tbe exclusion of tbe testimony of Frick and Patterson, witnesses for appellee, and that of newly- discovered evidence. Prick and Patterson testified as experts. They qualified by showing that they bad bad many years’— perhaps 25 years or more — experience in appellant’s and similar foundries, and in the identical or similar work as that in which, appellee was engaged- when injured. They showed that they were familiar with the mode of doing such work in rolling mills similar to appellant’s mills. They then testified that it was the universal custom in such mills, in melting iron and reducing it to working metal and dross, to melt it in a furnace having a tap- bole at tbe base through which the dross would run. Tbe dross was always and necessarily caught in some movable receptacle, and when sufficiently cooled by tbe action of the air was removed, and tbe receptacle, whether buggy or other contrivance, was then used again, and that to do this required such a number of buggies or receptacles to be provided as would permit of those filled being allowed to stand long enough to cool off before dumping. It was complained that the effect of this
We are of opinion that the evidence was relevant. It was not, as is assumed by counsel for appellant, a comparison of two or more methods employed by different given ironmasters. Nor was the admission of the evidence to fix or substitute a standard of care. It was evidential, receivable with other proper evidence which tended to show whether the work, as it was being conducted, was extra-hazardous or not; as tending to1 show the common experience of those engaged in the same or similar work as to whether it Was safe to do it with more or less buggies or more or less time in which to permit the dross to cool before dumping it. This evidence showed the tendency of the thing which the jury was considering, and as to whether, and under what circumstances, it was in fact dangerous, defective, or the reverse. It is entirely distinct in its nature and scope from the law’s standard of care required in the matter, which must be a fixed one, for example, in this case, such care as an ordinarily prudent or careful person would have
In the well-considered case of Maynard v. Buck, 100 Mass., 40, where the point was raised upon instruction, to the jury, instead of the competency of the evidence, the court said that it was not proper to embrace in the instruction a statement that, if the defendant had done the things that persons of ordinary prudence in the same business ordinarily did, it was not negligence. But the court said: “It is evidence of what is proper and reasonable to be done, from Which, together with all the other facts and circumstances of the case, the jury are to determine whether the conduct in question, in the case before them, was proper and justifiable.” In Nadau v. White River Lumber Co., 76 Wis., 120; 43 N. W., 1135; 20 Am. St. Rep., 29, the plaintiff offered to prove that it was customary in other sawmills to cover gearing of the kind in question. The court held: “This was clearly competent on the question as to whether the defendant was negligent in not covering it in its mills.” A correct statement of the practice is found in Richmond Locomotive Work v. Ford, 94 Va., 640; 27 S. E., 509, to-wit: “A witness having sufficient knowledge may testify as to the general practice of machine shops in moving such wheels, and the comparative safety of such methods; but it is not
The evidence complained of in the case at bar was touching technical skill in the handling of a highly dangerous product, one not commonly known and understood. By long experience those skilled in its manipulation had reduced the handling of molten iron and its dross to an art, it might be said.' How it should be handled, so as to be reasonably safe to those engaged in the work, was technical knowledge. Without some such evidence explaining it, a jury would have been unable to say whether the care taken in the particular case was ordinary care or not.
The newly discovered evidence consisted in this: One Tom Williams, introduced as a witness, and about the last one introduced by appellant (defendant), on the first' trial testified that he was present when the accident occurred, and that it happened because appellee dumped his cinder upside down on
The instructions given on the last trial, though criticised by appellant’s counsel for supposed technical inaccuracies, are not erroneous. They submitted to the jury appellant’s liability in this: If the1 place at which plaintiff was put to work was not reasonably safe for the performance of the work in which he was engaged, and its unsafe condition was known to’ the defendant, or its superior servants in charge, or could have been known to them, by ordinary care, and was unknown to the plaintiff, the law Was stated to be for the plaintiff; or if known to the plaintiff, but if he notified the defendant’s
Nor was the instruction as to the sufficiency of tools erroneous, as claimed by appellant. They did not constitute such an obvious danger as. that none but a reckless person would have continued to work with them alone. On the whole, we think the instructions
It is contended that the court erred in admitting the Wigglesworth Life Tables to the jury as evidence tending to prove the probable duration of appellee’s life. It is argued for appellant that these tables are based1 upon lives of normal, healthy persons, showing the average life of such: that at the trial appellee, because of these injuries, was not of the class of which the tables were compiled, and they were therefore misleading, for manifestly it w*as very improb able that a crippled, maimed, badly injured person would live SO' long as one of the same age, but in normal condition of body and health. The question of damages was not alone what plaintiff would in future be deprived of by reason of the injury dating it from the time of the trial, but to what extent his money-earning capacity had been lessened or impaired (in addition to suffering), and the value thereof, dating the inquiry from the moment of the injury. Appellee’s age and state of health then were the facts upon which his expectancy of duration of life was to be based. He was then in normal health and condition. Just what value the life tables would have for the jury in arriving at the damage done to plaintiff is hard to say. Their owtn observation and experience were doubtless more relied on by them. But the evidence in question was relevant as aid. Its reception does not imply, as argued, that if the life tables show a man of plaintiff’s age, in normal health, would probably live so many years, that he would always be able to work, or to' always get the same price for his wlork, as at the time of the injury when he was a young, robust man. There is nothing
We see no error in the record prejudicial to appellant, and the judgment is affirmed.