Mcgovern v. Cent. Vermont R. Co.

• Decision Date: 07 October 1890
• Citation: 123 N.Y. 280,25 N.E. 373
• Parties: McGOVERN v. CENTRAL VERMONT R. CO.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 280

25 N.E. 373

McGOVERN

v.CENTRAL VERMONT R. CO.

Court of Appeals of New York.

Oct. 7, 1890.

Appeal from supreme court, general term, third department.

PECKHAM, J., dissenting.

C. A. Kellogg, for appellant.

Louis Hasbrouck, for respondent.

RUGER, C. J.

Thomas McGovern, the plaintiff's intestate, a laborer in the employ of the defendant, was killed while engaged in cleaning out a bin containing grain. The defendant operated a railroad and owned a grain elevator at Ogdensburg, and was engaged in the business of transporting grain and other freight upon its railroad. The elevator contained 144 bins, wooden structures about 50 feet in height and 12 or 14 feet square, terminating at the bottom in a sort of double hopper, from which spouts several feet in length, and about six inches square, ran to places provided for its reception when grain was being loaded for transportation. When the spout was open, the grain, in its natural condition, would, by its own gravity, empty the bin and discharge itself through the spout. Sometimes, however, the grain became heated; in which case it would adhere and become banked up in greater or less quantities on the sides of the bin. The various bins had an aggregate capacity of upwards of 600,000 bushels, and each bin must therefore have been capable of containing about 4,000 bushels. In the side of the hopper, at the bottom of each bin, a trap-door, 11 inches by 13, had been constructed to allow workmen to enter for the purpose of cleaning out the bin. These doors swung on hinges, and opened inward and upward. Of course, when the bin was full, they could not be opened, but when the grain ran out, so that the doors were relieved from the pressure, they could be opened, and then rested upon the inclined sides of the bottom of the bin, secured only by their own weight. The bins could also be entered from the top, where a man was usually stationed with lanterns, ladders, and other appliances to examine and determine the condition of the grain in the bins whenever a knowledge of that fact was deemed necessary. Two men, of whom the plaintiff's intestate was one, were employed to clean out the bins after the grain had been discharged therefrom, or when, for any reason, it had ceased to run through the spouts provided for its discharge. These men alternated in this work, and when bin No. 101, in which the accident happened, ‘went to shoveling,’ as it was called, or ceased to discharge grain, it was the turn of McGovern to enter and clean it out. It does not appear that there were any arrangements for keeping an account of the quantity of grain discharged from the bins, or that remaining in the respective bins as they were being discharged, and those facts could be determined only by actual inspection. Obviously, this could only be discovered with accuracy by an inspection from the top, since the bottom of the bin was dark, and the vision obscured by dirt and other substances remaining in it, and was inaccessible when any considerable quantity of undetached grain remained in the bin. It was originally intended that the bins should be entered and cleaned from the top, but, for some reason not appearing, the defendant at some time substituted the trap-doors and that mode of entrance for the former mode. The plaintiff's intestate had been employed in the business by the defendant for a period of about 13 years, and, so far as appears, no accident had happened to him during that period. He knew that grain was liable to become heated and sticky, and while in that condition would adhere to the sides of the bin to some extent. No rudles for the inspection of the bins had been adopted by the defendant, and the workmen employed to clean them were left to work according to their own devices, except as they were specially ordered from time to time to enter the bins from the bottom by the defendant. On the day in question, the plaintiff's intestate was called upon to enter the bin and clean it out. When he arrived on the ground, he found the trap-door open, and a ladder, running from the floor to the door, placed there by the superintendent. That officer had already examined the bin with a pole from the trap-door, and had, apparently, been unable to discover the location of the grain supposed to be in the bin. Fackerell, an associate of the deceased, had, by the superintendent's order, also been in the bin at the bottom, and had loosened and discharged all the grain he could reach with a pole from that point. The lower part of the elevator contained no grain, and it was obvious that if any remained therein it adhered to the sides of the bin at some place between the top and the point which could be reached from the bottom; but where it was could not be discovered from the bottom. It could have been easily and safely discovered from the top by letting down a lantern, or descending by a ladder until the grain was reached. These means were not, however, employed, and McGovern was, either impliedly or expressly, directed to enter the bin through the trap-door and clean it out. This he proceeded to do, and, shortly after entering it, Fackerell, his associate, was directed to assist him. Fackerell also went into the bin with a pole, and after remaining a few minutes, and finding that the grain was probably piled up on the side of the bin, beyond his reach, told McGovern that they had better get at it from the top; that it was not safe to do so from the bottom. Fackerell then started to get out, and as he was passing through the trap-door was ordered by the superintendent to call McGovern out. Fackerell repeated this order to McGovern, and as he reached the floor he saw McGovern with his legs partly out of the door in the act of attempting to descend the ladder. Soon thereafter the legs disappeared and the door became closed. It was then evident to the superintendent, and the other by-standers, that the grain had fallen and closed the door and imprisoned McGovern. The superintendent and workmen then went to the upper story and entered the bin from the top, where they found a large quantity of grain in the bottom of the bin. After shoveling some time, they came to McGovern's dead body in the bottom of the bin, near the spout. The danger to persons in the bottom of a bin arising from the presence of large quantities of grain therein which had become attached to its sides by heat, and was liable to break away and fall from a slight jar, or other cause, was so obvious that it must have been apparent to those who constructed the trap-door as well as to all who were engaged in conducting the business. The precaution adopted by the master for inspection from the top of the bin showed that he was aware of the danger, and that there might be occasions when it was impossible or dangerous to inspect from the bottom. Upon this case the plaintiff was nonsuited at the circuit upon the ground that the proof did not show negligence on the part of the defendant, and that the deceased was guilty of...