Dougherty v. Milliken

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: WERNER
• Citation: Dougherty v. Milliken, 163 N.Y. 527 (N.Y. 1900)
• Decision Date: 22 June 1900
• Parties: HUGH DOUGHERTY, Respondent, v. EDWARD F. MILLIKEN et al., Appellants.

163 N.Y. 527

57 N.E. 757

DOUGHERTY

v.MILLIKEN et al.

Court of Appeals of New York.

June 22, 1900.

Appeal from supreme court, appellate division, Second department.

Action by Hugh Dougherty against Edward F. Milliken and another for injuries by falling derricks. From a judgment of the appellate division (49 N. Y. Supp. 905) affirming a judgment in favor of plaintiff, and overruling a motion for a new trial, defendants appeal. Reversed.

Haight and Martin, JJ., dissenting.

Perry D. Trafford, for appellants.

Isaac M. Kapper, for respondent.

WERNER, J.

This action was brought to recover damages for personal injuries resulting from the collapse of a derrick upon which the plaintiff was at work when the accident occurred. The negligence charged against the defendants is that a certain eyebolt to which said derrick and another derrick were fastened by means of cables or guys was ‘in an unsafe, insufficient, insecure, dangerous, and improper condition for the purpose for which the defendants used the same, so that solely by reason thereof, and while the plaintiff was upon one of the said derricks as aforesaid, the said eyebolt broke, causing said derrick to fall.’ Aside from the testimony of the experts, which will be hereafter referred to, the evidence adduced for the plaintiff established the following facts: The defendants were engaged in the business of iron and steel construction. The plaintiff had been employed by them as a laborer for about two years prior to the day of the accident. Two or three months before the accident defendants had removed their shops to the foot of Clinton street, in the city of Brooklyn. Upon the docks which formed a part of the yards adjacent to defendants' shops there were erected two derricks about 60 or 70 feet apart. The mast of the larger one was about 35 or 40 feet in height, and that of the smaller one measured about 30 feet. The boom upon each was somewhat shorter than its companion mast. These derricks had been in use at this yard for two or three weeks. One week before the accident they were put up at the place where they afterwards fell. Each of said derricks was supported by four guys, which were fastened at different places. The only eyebolt used as an anchor was the one which broke and caused the accident. It was about an inch in diameter and 10 or 12 inches long. When the derricks were last erected, prior to the accident, one of the guys running to the smaller one was anchored into this eyebolt, which was screwed perpendicularly into the stringpiece at the end of the dock. Between the time when the derricks were thus erected and the happening of the accident, one of the guys of the larger derrick was also fastened to said eyebolt; but the evidence does not disclose when or by whom, or under what circumstances, it was done. On the day before the accident one Avery, another of defendants' employés, who is referred to by plaintiff as his ‘immediate boss,’ commenced the work of substituting wire guys for ropes. During that afternoon the plaintiff was engaged in carrying wire and materials for this work. On the morning of the accident plaintiff was directed by Avery to go aloft, and he was hoisted to the top of the larger derrick. While steadying himself in this position and awaiting orders from Avery both derricks collapsed; and the plaintiff was precipitated upon the docks, and sustained the injuries complained of. At the time of the accident a ‘fifteen-inch’ iron beam, 40 or 45 feet long, and weighing about 1,600 pounds, was being hoisted upon the smaller derrick. Upon investigation as to the cause of the accident, it was discovered that the eyebolt which had served as an anchor between the two derricks had broken off ‘about an inch into the wood.’ There was no evidence of any inherent defect in the eyebolt, except that given by the witness Avery, who testified ‘that it looked all right, with the exception of one little spot in it. * * * There was a peculiar look in the iron. * * * It did not look just as the other parts of the iron did.’

This résumé of the facts clearly discloses the inherent weakness of plaintiff's case, which rendered a resort to expert testimony both prudent and necessary. The facts above referred to were obviously insufficient to support the allegations of negligence set forth in the complaint. Before adverting to the exceptions which were taken to the evidence of the experts, let us clearly emphasize the position of the case withoutsuch evidence. The falling of the derricks, the apparent cause, and the resultant injuries to the plaintiff, were clearly shown, but nothing more. Indeed, the case in so singularly barren of essential facts as to make it almost a matter of conjecture whether the accident happened under circumstances which would in any event render the defendants liable for its consequences. It seems to have been assumed, rather than proved, that the derricks in question were designed for continuous use in the place where the accident occurred. The case was submitted to the jury, apparently without objection from defendants' counsel, upon the theory that these structures and the character of their use were such as to charge the defendants with the master's primary duty of furnishing to their servants reasonably safe and suitable tools, appliances, and machinery. The learned appellate division affirmed the judgment entered upon the verdict on the assumption that these derricks ‘were intended and erected for permanent use.’ We have scanned the record for evidence in support of this assumption, but in vain. The facts disclosed by the evidence are quite as consistent with the theory that the fastening of these derricks was a mere detail of some work, the improper performance of which by any one but the plaintiff would have been the negligence of a co-employé, as with the assumption that the structures were such as to charge the defendants with responsibility not only for the sufficiency and suitableness of their constituent parts, but the safety and adequacy of their construction as a whole. A derrick is one of those appliances which may be used in various ways and for different purposes. In some circumstances it may be a mere temporary means to an end, in the performance of the work, which of necessity makes the kind and number of its fastenings dependent upon the exigencies of the moment or the situation. In such a case, if the master has exercised reasonable care to furnish sufficient and proper materials and to employ competent and skillful workmen, he has discharged his whole duty, and he is not responsible for the negligent use of the materials which he has furnished. Under other conditionsa derrick may be so used as to be a permanent appliance in the regular and ordinary conduct of the master's business, so as to charge him with responsibility not only for the sufficiency of the materials of which it is composed, but for the safety and adequacy of its construction.

In view of the omission of defendants' counsel to raise the...