Barber Asphalt Pav. Co. v. Odasz, 54.

• Decision Date: 26 February 1894
• Docket Number: 54.
• Citation: 60 F. 71
• Parties: BARBER ASPHALT PAV. CO. v. ODASZ.
• Court: U.S. Court of Appeals — Second Circuit

60 F. 71

BARBER ASPHALT PAV. CO. v. ODASZ.

No. 54.

United States Court of Appeals, Second Circuit.

February 26, 1894

Daniel Noble, for plaintiff in error.

Wales F. Severence, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

This was an action at law, brought in the circuit court for the eastern district of New York by Frances Odasz, as administratrix of Frank Odasz, to recover damages for injuries resulting in the death of the intestate, a day laborer in the service of the defendant corporation. The injuries were alleged to have been directly caused by defective and improper machinery or appliances which, through the negligence of the defendant, were permitted to be used in its business. A verdict for the plaintiff was rendered by the jury, and, judgment having been entered, the cause was brought to this court by writ of error.

The defendant, a manufacturing corporation in Long Island City was in the habit of receiving loads of sand in scows at the dock at the foot of its yard. This sand was hoisted from the scow, and dumped into a self-righting V-shaped car, upon a tramway about 22 feet above the ground, and running on a level through the yard, and was then dumped from the car wherever it was needed. The gauge of the track was 30 inches the car hopper was 60 inches at the top, and 5 feet 6 inches in height. The car was shoved into the yard by two men, who raised a lever at its end when the place of dumping was reached. At the time of the accident the entire load in the car was not discharged when the dumping took place, and the men shook the car to rid it of all the sand, when it fell over and upon the plaintiff's intestate, who, with others, was shoveling the sand underneath, and killed him. There was no framework around the track, nor platform alongside of it, at the time of the accident. Afterwards, a platform was placed on the side of the track.

The theory of the plaintiff was that the employer, being under obligations to provide a reasonably safe place for his employes to work in, negligently did not make such provision that the yard under the tramway was unsafe by reason of the liability of the unstable V-shaped car, when shaken, to fall off from a tramway which had no guard rail; and that, from the nature of the case, the danger was, or should have been apparent to the employer. The important disputed facts which the plaintiff strove to establish were the dangerous character of the tramway, and that it ought to have been known, and therefore avoided, by the employer. The law upon the subject of the liability of an employer for the consequences of dangerous appliances which he furnishes to or for his workmen has been recently stated by this court as follows 'An employer does not undertake absolutely with his employes for the sufficiency or safety of the appliances furnished for their work. He does undertake to use all reasonable care and prudence to provide them with appliances reasonably safe and suitable. His obligation towards them is satisfied by the exercise of a reasonable diligence in...