Bryson v. Gallo

• Decision Date: 07 June 1910
• Docket Number: 2,022.
• Citation: Bryson v. Gallo, 180 F. 70 (6th Cir. 1910)
• Parties: BRYSON v. GALLO.
• Court: U.S. Court of Appeals — Sixth Circuit

180 F. 70

BRYSON v. GALLO.

No. 2,022.

United States Court of Appeals, Sixth Circuit.

June 7, 1910

[Copyrighted Material Omitted]

This action was begun in the common pleas court of Cuyahoga county, Ohio, by Gaetano Gallo against the Tidewater Building Company and Thomas B. Bryson, to recover damages in the sum of $20,000 for personal injuries alleged to have been suffered by Gallo while in the employ of defendants and through their negligence.The building company is a corporation organized under the laws of New York, and Bryson is a citizen and resident of that state.The case was removed to the court below on the ground of diversity of citizenship and was tried on the petition filed in the state court and separate answers and a reply filed in the trial court.At the close of the plaintiff's evidence a motion to direct a verdict in favor of the building company was granted, and a like motion by Bryson was denied.A verdict for $5,000 and judgment thereon were rendered against Bryson.The case is pending here on proceedings in error.

Bryson a contractor, was engaged in constructing a building in Cleveland, and Gallo, a laborer in the employ of Bryson, was engaged in mixing and wheeling concrete within the building as far as it had progressed, at the time of the injury.The building was about 200 feet square and fronted on two streets.A platform with a derrick upon it was maintained on one side of this building at the level of one of the streets as a place and means for receiving materials and then lowering them into the cellar and basement.Gallo's work was in the basement, and the place provided for mixing concrete was directly under this platform.The accident was caused by the fall of material from the derrick.It was attempted to lower three steel beams at one time, each weighing about 700 pounds, by fastening the derrick chain around them at their center, when they slipped from their fastening and so injured Gallo as to require amputation of one of his hands.

The plan of conducting the work involved a division of it into three parts, to wit, iron work, carpenter work, and unskilled labor.One Eldridge was the superintendent and in control of all the men and work.He had an assistant, named Lowery.The iron work was under the immediate charge of a foreman named Schmunk; and under him was an iron worker named Keith, who fastened the chain to the three beams which fell and injured Gallo.The carpenters were under the control of another foreman, and the unskilled laborers like Gallo were under control of still another foreman, named Stevenson; but neither of the last-mentioned foremen seems to have been immediately concerned with the lowering of steel beams.

W. B. Stewart, for plaintiff in error.

H. F. Payer, for defendant in error.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

WARRINGTON Circuit Judge(after stating the facts as above).

Although there are quite a number of assignments of error, the controversy is reducible to two issues.One arises upon a claim that the accident was caused by admitted negligence of certain fellow servants of Gallo who were engaged at the derrick in giving orders for lowering and in handing the three steel beams.The other grows out of the receiving of evidence, and of a portion of the charge of the court below, touching a claim that Bryson failed to furnish appliances necessary to steady the beams as they were lowered and so failed to furnish Gallo a safe place in which to work.Stating these issues in other language: They concern the violation of primary duties, first, by Gallo's fellow servants, and, second, by Gallo's employer, Bryson.

The admitted negligence is claimed on behalf of Bryson to have grown out of an order given by Schmunk as foreman of the iron workers to Keith as an iron worker under him, to lower at one time the three beams in question instead of one at a time as previously directed by Superintendent Eldridge.One complaint is that the court below erroneously submitted to the jury the question of negligent operation of proper appliances by fellow servants of Gallo.But we think the charge was in favor of Bryson upon this feature.As illustrative of this, we may refer to the following portion:

'Nor does the fact that a person is hurt, or the fact that the plaintiff was hurt, and his injury was due to the fact that somebody who was working there, like Keith or the other associates of his, was negligent-- was not exercising ordinary care-- make the defendant liable.The negligence of some fellow workman of the plaintiff, resulting in injury to the plaintiff, would not, in and of itself, or because of that fact alone, make the employer liable.'

This was emphasized by a statement shortly following it:

' * * * And so the plaintiff must show by a preponderance of the proof, before he can recover, that it was the defendant's negligence which was responsible for the falling of the beams.'

We may therefore safely pass by the question of fellow service or of liability in that regard, and turn to a consideration of the important question touching the claim of failure of the master to furnish necessary appliances.The claim of Gallo is that there was a failure to furnish guide lines called 'snub ropes,' to steady the beams in their descent from the derrick platform to the floor of the basement.The objection of Bryson is that no such failure was alleged in the petition.Keith was permitted to testify that there was no 'guide line or snub line there' for him to use, when attempting to lower the three beams, and defendant's counsel at the time objected 'on the ground that it is not covered by the petition; there is no allegation against us for failure to have such. ' It must be conceded that the petition does not in express terms contain such an allegation.It does contain many allegations of specific negligence; and one inquiry is whether any of them separately, or in connection with others, may fairly be regarded as broad enough to justify admission of this evidence.Among the allegations are the following:

' * * * They(defendants and their superior agents and servants) were careless and negligent in undertaking to lift by means of said derrick at one time three metal beams of such great weight and size, and the plaintiff says that the tools and appliances then and there owned and used by the defendants were inadequate to lift more than one beam at a time.They were further careless and negligent in this, to wit, that they just prior to attempting to lift said beams had recklessly fastened and secured the same merely by a single loop over and around said beams and near the center thereof, instead of securing and fastening the same by at least two loops near the ends thereof, so as to secure and insure a proper balancing of said beams when the same would be lifted in the air.'

Again:

' * * * In failing to apprise him of their purpose then and there to elevate said beams in the air in the manner and under the conditions aforesaid, and in failing to provide for him a safe place in which to work.'

These allegations, as well as the others, were traversed in the answer by simple denial.What is the true scope and meaning of the words 'that the tools and appliances then and there owned and used by the defendants were inadequate to lift more than one beam at a time'?It was nowhere alleged that the derrick or its depending cable, chains, or appliances were broken by the weight of the beams or otherwise.It is within the ordinary and accepted meaning of the word 'inadequate,' as used in the allegation, that it may signify insufficiency or lack of 'appliances.'True the word is followed by the words 'to lift more than one beam at a time'; but these words must be read in connection with other allegations such as the succeeding language, in which it is charged that it was attempted 'to lift said beams' by fastening them merely by a single loop near the center instead of fastening them 'by at least two loops near the ends thereof so as to secure and insure a proper balancing of said beams when the same would be...