Pennsylvania Steel Co. v. Lakkonen

• Decision Date: 01 August 1910
• Docket Number: 308.
• Citation: 181 F. 325
• Parties: PENNSYLVANIA STEEL CO. v. LAKKONEN.
• Court: U.S. Court of Appeals — Second Circuit

181 F. 325

PENNSYLVANIA STEEL CO. v. LAKKONEN.

No. 308.

United States Court of Appeals, Second Circuit.

August 1, 1910

Battle & Marshall (H. S. Marshall, of counsel), for plaintiff in error.

H Powell and Jacob C. Brand (John B. Stanchfield and M. Spencer Bevins, of counsel), for defendant in error.

LACOMBE Circuit Judge.

The action is brought under the employer's liability act of the state of New York (Laws 1902, c. 600). Decedent was on the day in question in the employ of the steel company, which was erecting the Blackwell's Island bridge and was working under the charge of a subforeman or 'pusher' named Drummond. He was working at the bottom of a post constructed of plates riveted together with lacings on the sides. These posts would be put in place by putting a pin through a hole at one end, connecting the tackle of a derrick with the pin and lifting the post to a proper position. This post has thus been put in place and the next step was to remove the lifting pin, which was still in the post and attached to the block and fall. The pin was 14 to 16 inches in diameter about 3 1/2 feet long, and was held in place with a washer or saucer on each end of it. The washer weighs 40 to 60 pounds, is fastened on to a bolt or rod which runs through pin and washer and projects beyond the washer the latter being kept in place by a nut which is screwed on the end of the bolt. To remove the pin, it was necessary first to unscrew the nut and take off the washer. In removing the pin from the post, the washer was permitted to fall to the ground a distance of about 40 feet. It struck Lakkonen and killed him. James Headrich was the general foreman of the work in question, having under him Drummond and other pushers. The state courts have held that a pusher such as Drummond is a superintendent within the meaning of the act. Drummond told two of the men under him, Peterson and Davis to go up the post and get the pin out. He went up with them himself, and was at the top of the post when the accident happened. His narrative of what took place there is as follows:

'The pin was already fastened to the fall as it hadn't been disturbed from the day the post was connected; and, it being there was a strain on the fall, I had him (apparently the winchman) slacken off to release the strain-- I had to pull the pin a little one side to drop it on the bolt that went through the center. There was play enough to allow two inches (of side movement). By so doing it would leave a space big enough for a man to get both hands in-- for two men to get each one hand in to hold the saucer. I gave a signal to go ahead on the fall-- intending to stop him when he got the weight of the pin so that I could move it either way. The engine went ahead. The first time he went ahead so far that I had to make him lower again. He lowered so much that I had to make him go ahead again; and between the time I had given the signal and got the answer to my signal the nut was taken off, and when the strain came on the fall the pin floated south and the saucer fell. I had not seen Davis take this nut off-- I looked over the side before I gave the signal to go ahead with the fall and the nut was out-- I saw the nut and the saucer-- Davis was leaning sideways. His hands were straight in towards the column or ought to be. I couldn't see just where they were, and I didn't know whether he had hold of the nut or not. I couldn't say.'

The defendant contends that there is not sufficient proof of negligence on Drummond's part and that the accident was plainly due to the negligence of Davis, who was a fellow servant with deceased. The plaintiff contends that Drummond was negligent because he had given directions to Davis to remove the nut, and ought to have realized that between the time when he gave such directions and the time when he moved the pin it was to be expected that Davis would have unscrewed the nut; also, that it was the usual practice to begin operations for removing the pin by unscrewing the nut, and, if Drummond wished on this occasion first to shift the pin far enough to clear the bolt, he should have cautioned Davis not to take off the nut until he gave further orders. It is evident that some little time elapsed while Drummond was signaling to the engine man and trying to shift the pin, so as to bring the bolt into the hole. The following excerpts from the testimony are relied upon, Drummond testified: 'In the doing of my work it was always customary before I started to remove the pin to have the nut taken off-- to take off the nut before I moved the pin providing the pin was in good condition that I could take the nut and saucer off safely; but, being in this case it wasn't in a safe condition, it was my place to move the pin first. I went up to take the pin out. When I went up there I told Davis it would be his job to take the nut off, but I didn't mention the time.'

Davis testifies:

'It was our intention to work the pin out through the hole far enough so that we could lash on to the center of it, so that, when we lowered the pin down, it wouldn't slip through the cling. Well, we worked it out through the hole far enough so that the washer came up against the outside of the post, and then it was necessary to take the nut off in order to get the washer off, or to get the pin out through the hole any further, and Drummond said to me, 'We will take the nut off,' and I took the nut off and laid it down on the separator that is right at the top of the post; and I was straightening up to reach around to get hold of the saucer, expecting somebody to help me get it when the pin went out through the hole. I didn't have time to catch it. Q. When did Drummond tell you to take the nut off? Did he say to you to take it off, or that it would be your business to take the nut off? A. I believe he said, 'We will take the nut off now,' meaning for me to take it off.'

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