American Bridge Co. of New York v. Bainum

• Decision Date: 29 June 1906
• Docket Number: 35.
• Citation: 146 F. 367
• Parties: AMERICAN BRIDGE CO. OF NEW YORK v. BAINUM.
• Court: U.S. Court of Appeals — Third Circuit

146 F. 367

AMERICAN BRIDGE CO. OF NEW YORK v. BAINUM.

No. 35.

United States Court of Appeals, Third Circuit.

June 29, 1906

Samuel McClay, for plaintiff in error.

Ward Bonsall, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

GRAY Circuit Judge.

In November, 1902, the defendant in error and plaintiff below Frank E. Bainum, was employed by the plaintiff in error and defendant below, the American Bridge Company of New York, as a tool boy, to take car of the tools and carry them to the different workmen engaged in the structural work of the company. Plaintiff was then a minor of 16 years and 10 months of age. The defendant was a construction company at that time, and was engaged in steel structure work. On the 29th of November, 1902, defendant was engaged in doing some construction work on the main land of the Ohio river, at the south end of the Ohio Connecting Bridge. This bridge crosses the Ohio river a few miles below Pittsburgh, at Brunot's Island, and runs over the island at a height of about 60 feet. From the bridge down to the island, there was a stairway, in two flights, at an angle of about 45 degrees. The bridge was owned by the Pittsburgh Railways Company, and the stairs had been erected and were owned by the Philadelphia Company, which owned Brunot's Island. The defendant company, sometime prior to the 29th of November 1902, had been engaged in construction work on said island and on the date last mentioned still kept tools in a chest on the island, at the foot of these steps. From the point where the defendant was at that time at work on the main land, at the south end of the bridge, to these steps, was a distance of between half and three-quarters of a mile. On the said 29th of November, on Riddle, a foreman of the defendant company, at about 11 o'clock in the forenoon, ordered the plaintiff to go from the work at the south end of the Ohio Connecting Bridge to the tool chest on the island, and bring back certain tools, to wit, a crosscut saw, a foot adze, a spirit level, an auger, a carpenter's square, and about tow dozen wire nails, and the foreman's lunch box. As a number of workmen were waiting for these tools, the foreman told him to hurry up. The plaintiff started upon his errand, and crossed the bridge which spanned the Ohio river, to the stairs which led down to Brunot's Island. He descended these, went to the tool chest and got the tools for which he was sent. The stairs were a wooden structure, erected by the Philadelphia Company for its own purposes, and consisted of two flights; the first, leading from the ground, terminated at a small platform about 27 feet from the ground, at which commenced another flight at right angles to the first, which led to the top of the bridge. As far as appears from the testimony, these stairs were well constructed and were furnished with a wooden hand rail on one side. After loading himself with the tools, the plaintiff started to return by these stairs which he had just descended, and had taken one or two steps on the second flight, when his foot slipped on some ice on the tread of the step, and, rolling under the hand rail, he fell to the ground below, causing the serious injuries complained of. One of the witnesses called by the plaintiff, one of defendant's workman, testified that at seven o'clock on that morning, the stairs were a 'a little bit slick-- a little icy. ' It had thawed that day, and at the time of the accident this slippery condition had disappeared, except where the steps of the second flight were shaded by the bridge. The foreman, on cross-examination, testified that he had been down and up these stairs about eight o'clock that morning, but he was not asked and did not say anything as to their condition, and there is no other testimony from which any inference as to the existence of a dangerous condition from ice on these steps could be inferred, or that their condition was in any respect such as to impress either the foreman or the witness who ascended them an hour before, that they were especially dangerous.

In the suit brought by the plaintiff, it is charged that the defendant had erected the steps in question for the use of its employes, and had carelessly constructed them, in that they were without sufficiently secure balusters or railing, and were consequently in a dangerous condition. It also charges negligence, in that the slippery condition of said steps being known to defendant and unknown to plaintiff, the defendant, in violation of its duty to plaintiff, 'did negligently, carelessly and wrongfully compel plaintiff to ascent said steps, with neither hand free for protecting himself, as defendant did not give plaintiff sufficient time to make two trips, but required undue haste from plaintiff in getting all the articles from Brunot's Island to the western end of the bridge,' whereby plaintiff was thrown from the steps and suffered the injury complained of. The only evidence to support his allegation is, as already stated, that the foreman, in giving the plaintiff the order to fetch the tools from Brunot's Island, told him to 'hurry up,' the reason for so telling him being that certain of the work under the foreman's charge would be delayed until the tools were brought. The trial resulted in a verdict and judgment for the plaintiff, and the case is here brought upon a writ of error sued out by the defendant.

The...