Davidson v. Cornell

• Citation: 132 N.Y. 228,30 N.E. 573
• Parties: DAVIDSON v. CORNELL et al.
• Decision Date: 22 March 1892
• Court: New York Court of Appeals

132 N.Y. 228

30 N.E. 573

DAVIDSON

v.CORNELL et al.

Court of Appeals of New York,

Second Division.

March 22, 1892.

Appeal from city court of Brooklyn, general term.

Action by William S. Davidson against John B. Cornell and Henry Cornell for personal injuries to plaintiff alleged to have been caused by the negligence of defendants. From a judgment entered on an order of the general term of the city court of Brooklyn, affirming judgment entered on a verdict in favor of plaintiff, defendants appeal. Reversed.

James Troy, for appellants.

Charles J. Patterson, for respondent.

The other facts fully appear in the following statement by BRADLEY, J.:

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, who were engaged in the construction of a double-track elevated railway on Broadway, in the city of Brooklyn. This was done by setting columns upright on either side of the street opposite each other in transverse lines and longitudinally, about 60 feet apart, placing upon them iron cross-beams which supported girders, four in each span, extending from one to another of those cross-beams; and, for the purpose of hoisting those long girders from the ground to their places in the structure, there was used a steam-engine, boiler, and other apparatus upon a platform on wheels. This was in the evidence designated as a ‘traveler.’ It was about 20 feet in width, and about 30 feet in length, on 12 wheels, 3 resting on each of the 4 girders, and its weight was from 10 to 12 tons. In advance of this traveler, and disconnected from it, were two derricks or cranes, called by the witnesses ‘grasshoppers,’ also on wheels. In hoisting a girder the rope to which the tackle was attached led from it through the top of the crane; thence back to the traveler, where, by the power of the engine, it was wound about a drum, thus raising the girder to its place on the cross-beams. When the four girders, constituting a single span, were thus hoisted and bolted, the grasshoppers were taken onto that span, and the traveler, by means of a rope and tackle attached, fastened by a clamp to one of the inner longitudinal girders some distance in advance of it, and the application of the power of the engine, was moved forward onto and near the forward end of the span of girders next in the rear to that on which the grasshoppers rested, there stopped, and, by the use of chocks, stayed, and another span of girders hoisted to their places. By this method of construction the work had proceeded nearly one mile, when on February 14, 1888, the traveler while being so moved, and the girders on which it rested, fell to the ground, causing the injury to the plaintiff of which he complains. He was an employe of the defendants upon the traveler, and had been so engaged for some time. He recovered $2,500. The judgment was affirmed by the general term.

BRADLEY, J., ( after stating the facts.)

The immediate cause of the giving way of the girders and the fall of the structure was the subject of some contention upon the evidence. The plaintiff's counsel contends that it was the result of the negligent failure of the defendants to perform their duty to their employes, in that they did not use the care imposed upon them to provide a reasonably safe structure for the men to work upon, or proper means for its support or movement, for the purposes of the service required. If that proposition, in its application to the cause of the calamity in question, had the support of evidence, the charge of negligence on the part of the defendants were sustained. Ryan v. Fowler, 24 N. Y. 410;Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. Rep. 24; Kranz v. Railway Co., 123 N. Y. 1, 25 N. E. Rep. 206. There is no question about the competency of the men to perform the duties devolved upon them in the service. The charge of negligence against the defendants has relation mainly to the system provided for the performance of the work of construction in which the plaintiff was engaged, and is that there was a want of reasonable care in furnishing precautionary means for the safety of the employes upon it. The structure called the ‘traveler,’ containing the engine, boiler, and other appliances, was moved on the girders from one cross-beam to another, having the weight of 10 to 12 tons, and required a substantial support. In this instance, for some cause, it is said, the girders swayed as the traveler was moving along upon them, and they, with it, fell to the ground. There was no lateral bracing placed between the girders before this weighty structure called the ‘traveler’ was moved over them. Nor were the ends at the bottom bolted. The upper portion of each end of the girders extended beyond the lower portion, and when it projected onto the cross-beam, where it rested on a seat-plate and was held by two bolts, the lower portion sat up against the beam, and its bottom rested upon a bracket, where provision was made for bolting it also, but the bolting there was omitted until after the passage of the traveler over the girders. This was the method of going along with the work up to the time in question. There was evidence tending to prove that the bracing would have added materially to the stability of the girders, to the support of the traveler, and to the safety of the employes engaged upon it; and that such bracing is usual in like cases on other work; also that bolting the girders at the bottom, as well as at the top, would have essentially aided in keeping them in the position in which they were placed. The conclusion was warranted that the situation in which the girders were when the platform conveying the engine, boiler, and other implements was moved over them was such as to be deemed in defective condition for such use and purpose. Not because the girders had not of themselves adequate strength, but for the reason that they had not the support to keep them in proper position which they should have had, and which may have been given to them by such lateral bracing, and further support would have been given by bolting the ends at the bottom. But it seems that the onward movement of the traveler was not delayed for that purpose, nor for a sufficient time to straighten bent girders. Another force of workmen was supplied to follow the traveler, laterally brace them, and straighten such of the girders as were bent, and complete the bolting of them at the ends. This plan and system of proceeding with the work of construction may have been adopted and employed quite as much in reierence to expedition as safety. The movement of the platform on 12 wheels, each 2 feet in diameter, was slow, and regulated, when necessary, by a rear or heel rope, used to restrain its movement down grade and to aid in stopping its progress; and the steadiness of its movement very likely was supposed would give safety to it. But in view of the fact that it may have been rendered more so and perhaps perfectly safe by taking little more time to brace and bolt the girders before attempting to pass the platform over them, permitted the conclusion that failure to do so was negligence on the part of the defendants in the method adopted to proceed with the work. There was some, but not very satisfactory, evidence that the ‘heel-rope,’ as it was called, in the rear was defective, and on the occasion in question was broken. On the part of the plaintiff evidence was also given tending to prove that the rope or cable to which the power was applied to draw the traveler over the girders was not in line with its motion or movement; that the clamp employed, not being such as could be fastened to the cross-beam in direct line from the place it was attached for that purpose to the moving platform, was fastened a distance in advance of it to one of the longitudinal girders. This was the subject of considerable evidence, and it is by no means clear that the divergence of this rope from the direct line of motion was such as to be seriously prejudicial to the safe movement of the structure, although the evidence may have presented a question in that respect for the jury, in connection with the condition in which the girders were when required to support the transmission of the platform over them. But the main question seems to have had relation to the defective manner in which the girders were stayed to their places.

It is, however, urged by the...