Devine v. Kelly-Atkinson Construction Co.

Mr. Justice Mack delivered the opinion of the court. The deceased was in the employ of defendant as a structural iron worker at the time of his death, assisting in the erection of the iron work used in connection with the track elevation at Fifty-first street. Light beams and cross beams resting on posts were strung across the street. A he'avier facial girder was to be put in position at the extreme east end of the structure; it was lying across the beams and the deceased and a co-worker were on the structure on either side of the girder adjusting the “dogs” which were in the nature of a pair of ice-tongs, to the middle of the girder. The method of putting it in position was to raise if, by the pulley suspended from the tip of the boom, the movable arm of the derrick which itself was on a flat car some twenty feet to the south of the south wall of Fifty-first street, from a" gondola car standing in front of the derrick car, and if for any reason it had to be dropped elsewhere than at its ultimate position, then to take it up again and by swinging the boom to put it in position. The boom was thirty-five to forty feet long. The engine had two drums, operated by steam, from one of which a wire cable to a block in the end of the boom enabled the boom to be raised or lowered at will, independently of the load, and from the other of which a cable running through a pulley in the end of the boopi caused the load to be raised or lowered. While this could be done independently of the boom, both could also be raised or lowered together. As the girder in question was lifted from the gondola car and swung east, the blocking under the car, which prevents listing or upsetting, was seen to be insufficient and for that reason the girder was lowered before it reached its ultimate position, to the panel of open steel structure that was being constructed, and was placed across the beams by the deceased and others. The boom was then swung west to enable the blocking to be readjusted and in doing this, to escape wires, the tip of it was lowered so that when it was swung back to the point above the girder its tip projected north five or six feet. During this time the “dogs” remained attached to the girder and were held in place by the deceased and another man. In order properly to pick up the girder, with the load cable from the tip of the boom to the girder, at plumb and not at an angle from a point five or six feet north of the center of the girder, it was necessary to raise the boom again. Unless this were done, the load would at once swing out on being lifted. Instead of raising the boom, however, the engineer raised the load; the girder swung out; the deceased, in the hope of saving himself from being struck, jumped upon it as is customary, but girder and man slipped to the ground and death ensued. If the engineer, carelessly mistaking the signal given him by the foreman, operated the wrong drum, his negligence, being that of a fellow servant, would be no ground for recovery; if the foreman, however, gave the wrong signal, his negligence would render the defendant liable. The jury necessarily found that a wrong signal was given. The evidence was in conflict and unless we can say that the evidence clearly does not preponderate in favor of the plaintiff, we should not be justified in reversing the judgment on this ground. On behalf of plaintiff, one Kiplinger, a railroad switch-man, who at the time was employed by the railroad, handling, the iron and looking after the derrick in question, testified on direct examination that standing northeast of the derrick he saw the men attaching the dogs to the girder and saw the foreman, whose back was toward the men, give a signal to raise the load. He testified further, “That was the signal (illustrating). I had seen those signals given before in that kind of work and when I saw that, the load was raised from where it was standing.” On cross examination he testified that he had never been engaged in or worked at or been around that kind of work prior to the present job; that at the time he was a switchman; his engine was there to handle the derrick and gondola cars and that he had been doing this for something over a month; that the foreman “gave a signal like that (illustrating).” “Q. Just one hand? A. He didn’t give a signal like that (illustrating) ; just like that (illustrating). Q. Shook his fist like this? A. Yes. Q. That is, twisting it? A. Yes, sir. Q. How many signals are there that they give in work of that kind ? A. I have seen three. Q. What are they? A. They gave a signal like that (illustrating) to raise the load. If they wanted the boom raised, they gave a signal like that (illustrating). If they wanted to stop, they gave a signal like that (illustrating). Q. Did you see any other signals given besides those three at any time ? A. Hot this day. Q. Well, had you at any time while they were engaged there on this work ? A. Only motioning for men, they would motion to each other for help. Q. Were there any other signals that you observed while you were there which were directions to the engineer ? A. Ho, sir. Q. Those three are the only ones ? A. Yes. Q. When did you learn those signals ? A. When I first went to work on the job. Q. When you first went to work on the job? A. Yes sir. Q. How did you come to learn them? A. Well, sir, I learned that from watching the men work. Q. Did you have any particular occasion to know what those signals were? Did you need to know that? A. I could not say that I did, for my part.” On re-direct he testified that it was half a minute from the time he saw the foreman give the signal that the deceased fell. A second witness, Whitman, who was ten feet away from the place of the accident working in the gondola car, stated that just as the girder started to pick up he heard the superintendent holler and saw the deceased jump for the iron and fall with it. It took less than half a minute. He did not see the signal given. He further testified: “Q. What is the signal to go ahead with the load, Mr. Whitman? A. Like this (illustrating). Q. Did you see the signal— Mr. Greenfield: Can’t we get that signal described and get it in the record ? Mr. LeBosky: Q. Mr. Whitman, did you see the signal that Mr. Kelplinger gave while he was on the witness stand ? I did. Q. In describing the signal Hr. Fornwall gave. A. I did, yes. Q. How long have you been a structural iron worker? A. About thirteen years. Q. Are you acquainted with the signals given to the engineers in derrick cars ? A. Yes. ***** Mr. LeBosky: Q. Hów, you just show the signal to go ahead with the load. A. Like this (illustrating). Mr. Greenfield: I would like that to be described in the record, your Honor, with the fist and thumb up, raising his fist and thumb up and down— A. Going ahead is like this (illustrating). If a man gives a boom up signal, it is like this (illustrating). You give a twist of your hand. There is a great many men give different signals. Mr. LeBosky: Q. Well, is the thumb in the air at the time ? A. It is not necessary. His thumb might stick up a little bit. Q. Is the hand folded at the time ? A. It is not supposed to be. Q. It can be that way, can it? A. Yes. I seen lots of men give signals that way. Mr. LeBosky: All right. You may take the witness. Mr. Greenfield: Q. This motion you give for going ahead with the load is a sort of up and down movement, of the hand, isn’t it ? A. Ho, sir, it is not supposed to be. Q. This motion you gave, wasn’t it? A. It doesn’t look that way to me; that doesn’t look like an up and down motion by any means (illustrating). If I was giving that up and down motion, it would be this way (illustrating). Q. The motion you give is not merely a twisting of the wrist ? A. It would be hard to give a signal at that distance for an engineer to understand by twisting the wrist.” On behalf of defendant, the foreman Fornwall testified: “Mr. Greenfield: Q. Tell what you did. A. I gave the signal to boom up, top up his boom, Q. By top up the boom, what do you mean by that f A. liaise the end of the boom that is up. t % * * + Q. Dow, the signal that yon gave to the engineer means what, in yonr code 1 A. It means to raise the boom. Q. Does it mean anything else ? A. Do, sir. Q. Dow, what other signals did yon have for raising the load? A. We had this signal for raising the load (illustrating). Q. A sort of a twist of the wrist? A. Yes; sometimes you get in a position where you can’t give it that way and you go up further here and sometimes you just crack it to him that way (illustrating), if you are in a hurry. Q. Do you have in your business a regular code of signals that all structural iron men understand ? A. Yes, sir. Q. Dow, did you, after this boom came around to the east side, ready to be raised in position, again give any signals to the engineer to lift that load ? Mr. LeBoskey: .1 object to that; it is leading. The Court: He may answer the question. The Witness: Do. sir. ***** Q. What does the signal stand for which you gave the engineer that morning to top up that boom? A. That was to raise the boom. Q. That was to raise the boom? A. Yes; just to raise the boom.” Burtscher, the superintendent, testified: “Q. State what you saw ? A. I saw him giving a signal to raise the boom. Q. Describe the signal to the jury. A. This way, he had his thumb up this way (illustrating). Q. And that signal means in your code— A. To raise the boom. Q. Was it to raise the boom ? A. Yes. Q. Anything else? Does it mean to do anything else except to raise the boom? A. Dothing else at all.” On cross examination he testified: “Q. Dow, if that boom had been raised and the slack had been let fall and that signal had been given there would not have been any danger, would there. A- It aint necessary to give—^ Q. Well, would there have been ? Yes or no. A. ¡No, there wouldn’t have been any danger.” This is the entire testimony on the question of signals. To summarize this evidence: an entirely disinterested witness who in the course of a month, by observation of three signals, had learned their meaning, asserts that he saw the foreman signal: “shook his fist like this, twisting it.” He illustrated each of three signals—one to raise the boom, the other the load and the third to stop, but in the absence of a description of them in the record it is impossible to say just what was done. Any doubt arising from the incompleteness of a bill of exceptions must be resolved against the appellant. The second disinterested and expert witness described the signal to raise the load, according to counsel’s statement of it, as “fist and thumb up, raising his fist and thumb up and down.” A boom up signal, he said involves a twist of the hand, the thumb not necessarily being in the air. The motion to raise the load is not an up and down motion, though it is not merely a twisting of the wrist. The foreman who, if he gave the wrong signal would be responsible for the death, asserted positively that he gave the signal to raise the boom, not the load, but he agreed with Kiplinger that a twist of the wrist is the signal for raising the load, whilst the superintendent says that he saw him give the signal to raise the boom; “that he had his thumb up” (illustrating). While Kiplinger’s testimony as to the meaning of each signal would not be as realiable as that of an expert, his testimony as to his own observations of what was actually done would be none the less credible, because he was not fully acquainted with or had failed to observe signals in use other than the three. On this testimony, or rather on so much of it as is preserved in this record, which contains no description of many of the illustrations, a reviewing court would not, in the judgment of the majority of this court, be justified in finding, contrary to the verdict of the jury confirmed by the trial judge, that the evidence of the foreman and superintendent, positive though it was, preponderated as against that of the switchman, inasmuch as the credibility of these several witnesses was as important an element as their knowledge of signals and powers of observation. Without discussing the evidence thereon in detail, the jury were justified, in our opinion, in finding that the deceased was not guilty of contributory negligence. If the accident was due to the foreman’s negligence in giving the wrong signal, then the doctrine of assumed risk cannot be invoked, inasmuch as the risk of negligence on the part of the master personally or of his representative, the foreman, not a fellow servant, is not assumed. During the examination of the superintendent the court sustained an objection to tbe question: “How many different signals are used in this business ?” The only relevancy of the question would be that stated by counsel, to show that Kiplinger, who had observed only three signals, was deficient in his powers of observation. The question, however, as framed is not directed to the number of signals that were actually used at that time in that particular work, but to the structural iron business generally. We do not, however, deem the ruling such serious error as to justify a reversal, even if the inquiry referred to the signals actually used at that work. The jury knew full well that Kiplinger was not an expert; that he had learned only certain signals; that he did not know how many others were used; but his testimony was clear and positive as to the actual signal given at the time which was entirely different from the one that should have been and that, according to the foreman and superintendent, was in fact given. Complaint is made of the instruction on the question of damages because of reiteration and also of the amount of the judgment because of an alleged lack of sufficient direct evidence as to pecuniary loss. Judgment of $3,500 in favor of a mother, brothers and sisters, in a death case, even if prior thereto the deceased, a young unmarried man, had not supported them but had only occasionally sent his mother $5 or $10, will not be held by a reviewing court to be excessive. There was, in our judgment, no undue emphasis laid on the subject of the damages. Though the trial court might well have given defendant’s instruction reading: “The jury are instructed that if under the instructions of the court they find from the evidence in this case that the plaintiff is not entitled to recover, then they will not have oc- ' casion to consider at all the character or amount of the plaintiff’s damages,” yet the refusal so to do does not constitute error. The court had carefully and fully charged as to the prerequisites to any recovery and had directed a verdict of not guilty if any one of them was not supported by a preponderance of the evidence ; the jury could not, therefore, have been in any manner misled by the refusal to state that unless there was liability the question of damages need not be considered. An instruction in one place referred to care exercised by plaintiff instead of the deceased. This was clearly a clerical error and of no importance in the case. Inasmuch as the count charging negligence in the selection of servants was withdrawn, instructions bearing on the duty in that respect were properly refused. Finding no reversible error, the judgment is affirmed. Affirmed.