McGlynn v. Pennsylvania Steel Co.

Jenks, P. J. : This action is brought under the Employers’ Liability Act. The defendant called no witnesses, but examined those of the plaintiff beyond the limits of cross-examination in-order to present its case. This employer was constructing a bridge to cross the East river from the borough of Manhattan, New York city, to the county of Queens, and the employee was a bridgeman who worked on the métal structure. That work required assembling a section of a steel tower, which section was called T-4, and which was 16 feet high, 6. or 7 feet wide and which weighed nearly 60 tons. On December 10,1907, T-4 had been raised 225 feet above the ground by a steel cable worked over a large steel derrick whose mechanism included two large drums which were revolved by an engine. This derrick was built upon a traveler which was placed at the center of the bridge on an elevated floor thereof called the second deck. When T-4 had been thus lifted there were 30 feet of cable between it and the mast of the derrick. T-4 was to rest upon another steel section and "to be joined with a steel portal called. B-30. On the side of T-4 were projecting metal strips called angles, which were designed to pass outside -of like strips on B-30 called gusset plates, so that T-4 and B-30 should thereby interlock and' then be riveted or be bolted together as the permanent fabric. When it was.attempted to fit T-4 in B-30 a foul occurred, a frequent occurrence.' That is, the angles and gusset plates interfered and would not engage. The result was that, although T-4 rested upon the section below it, and at the rear was fastened by bolts and .drift pins, at the front it was raised some 3 or 4 inches at its bottom and from 8 to 10 inches at its — 345 — top. The work had been doing in a storm. At about 11 A. M. the severity of the storm moved Bowers, foreman or superintendent of the defendant, to order the men to quit work for the day. They did so. The steel cable remained fast to T-4 by the lifting device attached to the top, which device also served to equalize the strain. After the men had quit work Bowers examined the cable and judged that practically the whole “load ” (T-4) was hanging on the derrick. Under his direction the engineer started the machinery of the derrick, and so slacked the cable a “little bit more,” until Bowers ascertained that the strain on the derrick had been released “a little.” This was customary lest in the interval colder weather might break the cable. On the next morning the plaintiff and his fellows returned to work. • Bowers, standing at the lower deck of the traveler, spoke to the plaintiff before the latter went up to the top of the bridge to work. There is a dispute , as to what Bowers said. Bowers testifies that he told the plaintiff to tell Johnson that he would get a steamboat rachet which the. plaintiff should use to pull T-4 in. The plaintiff says that Bowers told him to tell Johnson that he (Bowers) was going to send up a steamboat ratchet, but that he did not state the purpose. Johnson corroborates Bowers. A steamboat ratchet is an instrument sometimes used, to remove a foul. Bowers testifies that he procured a steamboat rachet which he thereafter sent up to Johnson. ■ But meantime plaintiff was carried up to top of the bridge to work. Johnson was then standing on the traveler but a few feet away from the section. ' The evidence for the plaintiff is that Johnson then told plaintiff and his fellows to go up on top of T-4 to try to get it into place. Palmer, a fellow-Workman, says the order was “ to get up there to try to get that piece in.” The plaintiff says the direction was to go on the tower section “ and try and get that section in position,” and Juve, another workman, says the direction was “to go up there and see if we could not get that section of the tower in place.” Johnson cannot remember whether he told the plaintiff anything or not; he cannot remember saying anything to Juve, a fellow-workman. He cannot recall what orders he gave on that morning to either of these men. He (c remembers nothing about that. ” Plaintiff and his companions — 346 — went to the top of T-4. Among the recognized methods of releasing fouls was that of bending the plates by use of ham mera, which often proved efficacious. Palmer testifies that “ The first thing we try to do, and the simple way to get at it,' is to take a maul and try to break the foul. That very often has the result of breaking it.” - The plaintiff and. his companions employed this method. The plaintiff lay upon the top-of T-4 plying an eight-pound hammer with his right hand and clinging to the top of T-4 with his left hand projecting over the edge of T-4.. After hammering for a few minutes •— one witness estimates the time at five minutés — and when the plaintiff was still at this work, T-4 suddenly fell into place .with B-3Q with terrific force, and the plaintiff’s left hand was cut off as-if by ■ the jaws of a trap. -Doubtless the hammering released the foul. There is no blame to be attached to the slack of the cable ordered by Bowers on December the 10th, as an isolated. act. There is no proof that on the morning, of the accident, December 11th, the apparatus of the derrick was not proper of its kind or perfect in its mechanical condition. , But the contention of the plaintiff. is that T-4" fell suddenly into place because the cable Was slack and did not control it, whereas it should have, been taut to hold T-4 back until, in accord with the proper practice, it would have been lowered into place gradually by release , of the cable after signal to the engineer in charge' of the machinery of the derrick. . The cable arid its machinery were within the term c ‘ works or machinery. ” (Yaw v. Whitmore, 46 App. Div. 422; affd., 167 N. Y. 605; McMahon v. McHale, 174 Mass. 320; Doherty v. Booth, 200 id. 522.) I think that the jury might have found that there was a defect “in the condition of the * * * works or machinery ” at the time the plaintiff went upon T-4 to release this foul. The evig dence is that it was the custom to test “ a load” (and T-4 as held by the cable was called “ a load”) “before you go around it at all; .if it is unsafe the' foreman always notifies the men to keep away; ” that such tests were made before the men went to work; that it was the duty of Johnson to make such tests; that he was in a position at this time to test this cable "without any. difficulty to see whether it was taut or slack; that he — 347 — omitted to make any test whatever and that neither he nor any other gave any warning that the cable was slack. The duty of inspection is not delegable, it is continuous according to the circumstances, and the servant on whom that duty is cast is a vice-principal of the master. (Koehler v. New York Steam Co., 183 Y. Y. 1; McGuire v. Bell Telephone Co., 167 id. 208.) As I have said, there was evidence that hammering was often efficacious in itself to release a foul. The jury might have found that the sudden impact of a steel section weighing 60 tons falling into place while workmen were upon it without the restraint of a taut cable was fraught with a danger to the plaintiff and those upon it or about it, which Johnson should have realized, and that, therefore, he should have ascertained whether T-4 was restrained by a taut cable before he ordered the plaintiff and his fellows to "go upon it to work. . For the evidence justified a finding that Johnson was a superintendent and acting as such superintendent. Bowers testifies that his own duties were looking after all steel erection on the bridge; that he had “assistant foremen” under him who acted in his stead during his absence, .of whom Johnson was one, and that Johnson’s duties were to act in his stead at the front end of this derrick when he was absent. It appears that on this occasion Bowers was not at the place of work, but'that Johnson was there, and Bowers’ testimony is: “Mr. Johnson was in charge of a gang .up at the. top of this tower.” Bowers terms Johnson “assistant foreman or pusher,” and testifies that Johnson sometimes had as many as 100 men under him, on this occasion about 20 men; that Johnson was in charge of a gang under Bowers’ direction, who was foreman of the “whole thing.” Johnson testifies that he was an assistant foreman; that he gave orders he received from Bowers; that he very often directed the men. concerning the work they had to do.; that he constantly assigned men to go to various places to work. Palmer, one of the gang that included the plaintiff, testified that Johnson gave orders from time to time to .do certain kinds of work; that he gave orders every morning when they started to work. The plaintiff testifies that Johnson was his foreman and had. charge of him, gave him instructions and directions to do anything which he found necessary, and that he acted as super — 348 — intendent over him in the absence of Bowers; that he was all the time in the immediate supervision of Johnson; that none other ever directed him in respect tó the work he was to do from time to time, and that Johnson gave the instructions concerning the manner and means of doing the work. (See Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556; Onesti v. Central New England R. Co., 121 App. Div. 554; Mikos v. N. Y. C. & H. R. R. R. Co., 118 id. 536; affd., 191 N. Y. 506.) I d,o not overlook the testimony as to the steamboat 'ratchet. But Johnson ordered the men to the top of T-4 to see whether they could get it into position. There is no evidence that he prescribed any particular method, or that he indicated the use of the steamboat ratchet or any other, instrument. Indeed, there is the question whether the plaintiff might not have inferred from the fact that Johnson, although theretofore informed by plaintiff that the steamboat ratchet was to be sent ■up, when he gave this order, without mention of-the ratchet or without waiting for it, intended that plaintiff and his fellows would remove the foul, if possible, without the aid of that instrument.- In any event, the evidence is that the plaintiff and his fellows went at once about the work by a method in recognized usó and often effective. Johnson was close at hand. He saw the plaintiff on top of T-4 before the accident. It is almost incredible that he did not know the method in use, when several men were plying eight-pound hammers Upon metal for some minutes. There is no evidence that such hammering would have been. Used for any purpose at that time except to remove the foul. Labatt on Master and Servant (p.2019) «says: “In the absence of specific directions, a general direction is deemed to authorize the doing of a thing in the manner reasonably proper for doing it. A servant is deemed to have been injured by conforming to an order, where, in carrying out a general direction, he uses the means which, to a person possessing his limited knowledge of the conditions, it might seem reasonable to adopt under the circumstances, though an expert would have adopted' a different method.” In Grand Trunk Railway Co. v. Weegar (23 Can. S. C. 427), therein cited, King, J.,. says: “Next, was it impliedly involved in the direction that plaintiff — 349 — might use his fingers ? Mr. Justice Burton grounds his dissent upon this, that Garland did not direct plaintiff to move the link with his fingers. I think, however, that in the absence of specific direction the general direction authorizes the doing of the thing in the way reasonably proper for the doing of it; and providing that the engine was not to he moved against the car who can say that it was not proper enough to use the fingers ? The doing of the . act by the use of a pin would be tedious and I would think almost impracticably so.” In the words of Lathrop, J., in Millard v. West End Street R. Co. (173 Mass. 512): “The danger in this case was owing wholly to an isolated act of carelessness on the part of a superintendent. This is not a danger which naturally grows out of1 the employment, or is necessarily incident to it. Davis v. New York, New Haven & Hartford Railroad, 159 Mass. 532.” I fail to find any evidence as to the conduct of the plaintiff which would defeat his action as matter of law or which would warrant us in disturbance of the verdict upon the facts. The plaintiff had a right to assume that the defendant had performed the duties imposed on him by law, or if not that he would he notified.- (Jenks v. Thompson, 179 N. Y. 20, 26.) There is no testimony of any notice or warning to the plaintiff or his fellows that the cable was slack. The plaintiff testifies that he saw that the cable was attached to T-4; that he did not know it was slack; that as far as he observed and knew the cable was taut, and that he believed that it was supporting T-4. It is contended that the plaintiff’s theory of the accident was physically • impossible. This, however, assumes that T-4 was prevented from engaging with B-30 simply because the foul held them somewhat apart. The learned counsel for the appellant supports this by the statement: “It is to be observed that these men [referring to the plaintiff and his witnesses] do not state that T-4 was supported by the cable. ” It certainly is contended upon the testimony that if the cable had been taut, it would have held hack T-4. Palmer testifies that a taut cable would keep a piece of steel in position, and if the cable had been taut he did not think that T-4 would have slipped in. The plaintiff testified that T-4 appeared hung by — 350 — the cable that was oil it, and that, if the cable had been taut T-4 would have been kept in position and would not have fallen forward. This criticism of the appellant was put before the jury upon the examination of Juve, who was likewise injured in this accident'. “ Q. (Continuing). Let me correct you, and ask you to refresh your recollection; when you first testified you told us that .as 'soon as you got up there, you looked around, and saw that the angles were fouled with the gusset plates, didn’t you? A. Yes, sir. I hollered down and told Johnson that. I told Mr. McIntyre that when I got those in — these plates pulled together so they would fit, I was going to tell the foreman to let the cable slack, so that the thing would slide together. Q. You would not have done that if it would slide together without any necessity of telling him, would-youl A. When it was— Q. Suppose it had slid right together the minute you pulled the thing, you would not have signaled anybody, anything? A. It did slide together. Q. Answer the question as I put it to you. If that thing had slid together when you put a bolt in, and bolted the plates in, you would not have signaled anybody? A. It could not go into place. Q. It could not go into place? A. No; no,: without releasing the load. Q. It could not go into place without releasing the load? A. No. Q. Do you mean to tell me now, Mr. Juve, that if two pieces of iron, one is pushed up against another piece of iron, as you see these two (indicating).— A. Yes, sir. Q. And you take one away, that the other one won’t slide into place past it? A. No, sir." Q. You do say that? A. I say it won’t slide into place.” Defendant’s counsel: “That is all.” By plaintiff’s counsel: “Q. You told Mr. Marshall that it would not slide into place; Now, -tell us why it would not slide into place? A. Because the loa'd would hold it. Q. That is to say, if it were taut? A. It naturally is taut all the time. You have got a load, on it. It is supposed to be taut all the time. Q. Please, state why it would not slide in? A. Because the load would hold it; the load is what is attached to the falls. That is, attached to the cable. Q. What do you mean when you say that the load would have to hold it in place? I don’t quite grasp that. A. It would stay right where it is at. Q. Do you mean the cable? A. If it stayed right — 351 — where it is at, the cable has to be taut and fastened. Then it would stay in its place.” The Court: ££ The Court understands from the evidence that where .the word £ load ’ is used, it means that the cable is supporting a burden. Q. Is that so, as the Court has indicated? A. Yes, sir.” Moreover, the evidence is that directly after the accident the men injured were released from' their position by the withdrawal of the T-4 apart from B-30 by the use of the cable. This seems conclusive that the cable at this time did physically control T-4. The criticism of the learned counsel rests upon the law of gravitation.. Naturally T-4 would have come to a perpendicular if the section at its base was horizontal, and so presumably would have engaged B-30 when the foul was removed unless it was held back by some outside force. But the contention of the plaintiff was that the cable constituted the potential outside force, that was at hand to have controlled T-4 so that it might have been lowered into place gradually. Evidently the jury did not think that the theory of the plaintiff rests upon a physical impossibility, and we cannot find that their • conclusion is opposed to physical laws. (See Fox v. Le Comte, 2 App. Div. 61; affd, on opinion below, 153 N. Y. 680.) The learned counsel for the plaintiff lays stress upon á statement elicited from Palmer upon cross-examination: ££ There would have -been no use of our trying to hammer those things together if the cable had been taut.” When asked upon redirect examination what he meant, the witness answered: If the cable was taut you know it is no use to hammer it any because when you slack the cable it goes naturally.” Palmer had just testified that if the cable had been taut, it (i. e. T-4) would not slip in. Palmer had been one of the men engaged in hammering, which he testified was a usual and often efficacious method. This testimony may mean that you could not hammer T-4 and B-30 together if the cable had been taut, because the cable would have held them apart, and this is consistent with the second statement that when you slack- the cable it goes 'naturally. But it is not consistent with his own testimony and. that of the other witnesses that you can release a foul by hammering and that then the cable is relaxed so as to let the two pieces gradually engage. — 352 — The notice is, I think, sufficient in that it states the physical cause of the injury, soothat the master is informed “ as to the particular thing or things out of which- the injury resulted, so that he may make the necessary inquiries as to the fact and its attendant circumstances. ” (Valentino v. Garvin Machine Co., 139 App. Div. 142, and cases cited.) The judgment and order should he affirmed, with costs. Present — Jerks, P. J., . Burr, Thomas, Carr and Woodward, JJ. Judgment and order unanimously affirmed, with costs.