JOHN J. MCGLYNN, Respondent,
THE PENNSYLVANIA STEEL COMPANY, Appellant.
APPEAL by the defendant, The Pennsylvania Steel Company, from a judgment of the Supreme Court in favor of the plaintiff,
entered in the office of the clerk of the county of Queens on the 26th day of May, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk's office on the 20th day of May, 1910, denying the defendant's motion for a new trial made upon the minutes.
H. Snowden Marshall, for the appellant.
John F. McIntyre [David C. Hirsch with him on the brief], for the respondent.
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 metal 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
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 'remembers nothing about that.' Plaintiff and his companions
went to the top of T-4. Among the recognized methods of releasing fouls was that of bending the plates by use of hammers, 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 minutes--and when the plaintiff was still at this work, T-4 suddenly fell into place with B-30 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 and its machinery were within the term 'works or machinery.' ( Yaw v. Whitmore, 46 A.D. 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 evidence 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
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 N.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 ...