Carlson v. Phenix Bridge Co.

Citation30 N.E. 750,132 N.Y. 273
PartiesCARLSON v. PHENIX BRIDGE CO.
Decision Date25 March 1892
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, second department.

Action by Charles F. Carlson against the Phenix Bridge Company for personal injuries. From a judgment of the general term, entered May 12, 1890, affirming, without opinion, a judgment entered March 5, 1890, dismissing the complaint, plaintiff appeals. Affirmed.

J. Edward Swanstrom, for appellant.

A. B. Boardman, for respondent.

BROWN, J.

The plaintiff was an employe of the defendant, engaged in the construction of an elevated railway in Fulton street, in the city of Brooklyn, and while in the performance of his duties was injured by the fall of a heavy iron girder, and brought this action to recover damages sustained from such injury. For the purpose of lifting the heavy girders from the street to the elevated position they were to occupy in the structure, the defendant used a movable derrick, operated by steam power. The hoisting apparatus included a chain and hook. The plaintiff described the customary method of raising the girders as follows: The hook was fastened into the girders first, so as to raise them on edge, and then enough power was applied to raise them clear off the street, so that they could be placed on blocks. After they were placed on blocks, under their proper position in the structure, other tackle was used, the hook and chain being dispensed with, and they were raised into their permanent position. The immediate cause of the accident which injured the plaintiff was the breaking of the hook when the girder was being raised from the street, and the negligence charged upon the defendant was its failure to furnish a hook strong enough to sustain the weight of the girder. The hook in question was one of a number (testified to be eight or more) made for use in the work of building the railway by a blacksmith in the defendant's employ. They were made about three months prior to the accident from a bar of iron 24 feet long and 1 3/4 inches in diameter, purchased by defendant from Manning, Maxwell & Moore, reputable dealers in iron, and ordered as the ‘best refined,’ which was the best grade of iron in the market. All of the hooks had been used in raising similar heavy girders, and none of them were shown to have been weak or insufficient for the work required of them. The one in question had been used during the three months previous to the accident to lift about 200 girders similar to the one which fell upon the plaintiff, and there was nothing in its external appearance to indicate that it was weak, or that the material was not of the best quality. After the accident the iron at the point of fracture was discovered to be bad. The break was square across the shank, and presented a bright appearance, without rust, and the proof tended to the conclusion that it resulted from crystallization in the iron, which could not have been discovered by an external examination. It was not discoverable in the process of making the hook, and when delivered to the employes for use it was supposed to be of the best material.

The appellant claims, and gave evidence to the effect, that a customary test to ascertain the quality of a bar of iron could have been made by the blacksmith by nicking or cutting notches in the bar when cold with a chisel or cutter, and then breaking it, or by bending it over an anvil; that if broken, the grain of the iron would have been disclosed, and by bending it, if crystallized, it would break, but if fibrous it would bend. But it was conceded that such a test could not be appliced to the particular piece of iron which was used in making the hook without either destroying it, or greatly impairing its strength and efficiency. These tests were not applied to any part of the bar in question. It appeared from uncontradicted testimony introduced by the defendant that all refined iron is subjected to freqnent tests during the process of manufacture, and represents in the market the highest efficiency of the manufacturer's skill; and that, subsequent to the accident to the plaintiff, a piece of the bar in question, reduced in diameter to 1 1/2 inches, was tested, and shown to have a breaking strength of 46 tons, or more than 4 times the weight of the girder by which plaintiff was injured.

This statement of the facts brings us to the point of difference between the parties at the trial. The plaintiff claimed that the defendant was negligent in omitting to apply to the bar of iron from which the hook was made the test of cutting and breaking or bending, which he claimed would, had it been made, have disclosed the bad...

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28 cases
  • Southern Pac. Co. v. Hetzer
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 25, 1905
    ... ... exercise to protect his own safety ( Carlson v. Bridge ... Co., 132 N.Y. 273, 30 N.E. 750; Probst v ... Delamater, 100 N.Y. 266, 3 N.E ... ...
  • Dibbert v. Metro. Inv. Co.
    • United States
    • Wisconsin Supreme Court
    • May 1, 1914
    ... ... 462;Palmer v. D. & H. C. Co., 120 N. Y. 170, 174, 175, 24 N. E. 302, 17 Am. St. Rep. 629;Carlson v. P. B. Co., 132 N. Y. 273, 277, 30 N. E. 750;Treadwell v. Whittier, 80 Cal. 574, 594, 22 Pac ... ...
  • St. Louis, Iron Mountain & Southern Railway Company v. Reed
    • United States
    • Arkansas Supreme Court
    • November 15, 1909
    ... ... to secure safety in the appliances which are furnished to him ... to do the work. Carlson v. Phoenix Bridge ... Co., 132 N.Y. 273, 30 N.E. 750; Union Pacific ... Ry. v. Daniels, 152 U.S ... ...
  • Westinghouse Elec. & Mfg. Co. v. Heimlich
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 14, 1904
    ... ... N.Y ... Cent. Rd., 76 N.Y. 125; Marsh v. Chickering, ... 101 N.Y. 390, 5 N.E. 56; Carlson v. P.B. Co., 132 ... N.Y. 273, 30 N.E. 750; Railway Co. v. Aiken, 89 ... Tenn. 245, 14 S.W. 1082; ... ...
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