NAZZARINO GIOVAGNIOLI, an Infant, by FRANK FIORE, His Guardian ad Litem, Respondent,
FORT ORANGE CONSTRUCTION COMPANY, Appellant.
APPEAL by the defendant, the Fort Orange Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of October, 1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 21st day of October, 1910, denying the defendant's motion for a new trial made upon the minutes.
Countryman, Nellis & Du Bois [Andrew J. Nellis of counsel], for the appellant.
Walter H. Wertime [Peter A. Delaney of counsel], for the respondent.
SMITH, P. J.:
This is an action brought under the Employers' Liability Act (Labor Law [[Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) to recover damages for personal injuries sustained by respondent while employed by appellant in the construction of a certain lock upon the State barge canal at Waterford, N.Y. , at about eleven o'clock P. M. on the night of November 23, 1909. The walls of the lock in question were to be of concrete about thirty feet high and for purposes of construction were partitioned off into sections about fifty feet in length and these sections were filled alternately to the depth of about four and one-half feet. The concrete was mixed some distance away and was then placed on a belt conveyer twenty inches wide and about twelve hundred feet long which passed along the lock upon a trestle. Upon this belt conveyer was an apparatus known as a tripper, consisting of a small car upon trucks and having two rollers over which the belt passed. The upper roller reversed the direction of the belt and the material on the belt then dropped off into a chute and from there passed into the lock sections mentioned. As the work progressed the tripper was moved backward and forward along the belt by two men, one on each side of the tripper, who turned cranks connected by cogwheels to the truck of the tripper car. The position of the tripper was thus frequently changed in order that the concrete might be properly distributed in the forms, but just how frequently was a matter of dispute. Respondent claimed that the tripper at times was not moved for periods of from seven minutes to half an hour, while appellant sought to show that the tripper was continuously being shifted when the conveyer was in full operation. It is undisputed that the tripper as constructed had a tendency to tip forward owing to the pull of the belt upon the upper roller, especially when the belt was carrying a heavy load, and on several occasions prior to the accident this had happened and the car had left the
track and more or less damage had resulted. No mechanical provision seems to have been made to prevent such an occurrence, and appellant claims that it was the duty of the two men operating the cranks to hold the tripper car to the rails. The capacity of the conveyer was over twenty tons of material distributed along its entire length. Respondent was a minor about eighteen years of age, not speaking English, and was employed as a common laborer. His duties were to stand upon the tripper car, on an unguarded step about thirty inches long and eighteen inches wide, and to loosen with a stream of water from a hose any concrete that might adhere to the belt. He also had two lighted lanterns to be used for signaling to the motorman in charge of the electric power operating the belt, thus ordinarily holding the hose in one hand and a lantern in the other. He had been working on the tripper only three days when the car tipped up and left the track and he was thrown off and into the partially filled lock section below, and sustained serious and permanent injuries for which he was awarded a verdict of $5,000 in the court below.
Respondent's claim was that the tripper was an unsafe place in which to work on account of its tendency to tip up and leave the track, which must have been known to appellant, and the evidence seems sufficient to justify such a finding, in effect, by the jury. Appellant claims that by reason of the frequent, if not continuous, shifting of the tripper by the two workmen operating the cranks, it was impracticable to have the tripper furnished with clamps for the purpose of fastening it to the rails and so preventing its evident tendency to tip up. But even if the tripper was constantly in motion when the conveyer was in operation, about which there is considerable doubt, it was surely practicable to use some mechanical means or different construction of the car to keep the machine on the rails so as not to rely for this important matter on the two workmen mentioned, whose combined efforts might easily become of no avail in case of an extra heavy load or sudden strain of any kind on the belt.
A more serious question arises from the refusal of the learned trial court to charge, as requested, that if the surgeon attended respondent at the request of the superintendent of the
appellant, intending to render his services upon the credit and at the charge of the appellant, the respondent was not liable and the services rendered could not be recovered for in this action. The only evidence in the case upon which this request to charge could be based is the testimony of the surgeon that appellant's superintendent called upon him to attend respondent--'retained' him. The party named testified that he was 'superintendent of excavation' for the appellant. The services of the surgeon extended over a period of five months while respondent was in the hospital and also for some months after that. The evidence seems insufficient to support the charge requested, inasmuch as the very natural act of the superintendent in calling a doctor to attend a severely injured workman as an emergency matter would not be sufficient of itself to show that the superintendent ever intended to bind his employer for the full amount of that doctor's bill extending over a period of months and amounting to $600, the sum claimed here as the reasonable value of such services. Nor is the use of the word 'retained' without more sufficient to change the situation. If this superintendent or any other officer of appellant had had any agreement or understanding with the surgeon whereby appellant was to become liable for his bill such fact should have been brought out definitely upon the trial. (See Van Gaasbeek v. United States Lace Curtain Mills, 132 A.D. 595.) Moreover, it does not appear that the superintendent of construction actually had any power either express or implied to incur any such extended liability on the part of his employer, and for all that appears in the case as to his duties any such agreement if made by him with this doctor would have been outside of his duties, and, therefore, not binding upon this appellant. The request to charge was, therefore, properly refused.
It appeared upon the trial that respondent was receiving his own wages, and paying his own way, and the trial court accordingly held that if he could recover at all, the expenses for doctors' and hospital bills could be included in the recovery on the ground that these were his liabilities even although an infant. As the evidence ...