Eugene Kreigh v. Westinghouse, Church Kerr Company

Decision Date24 May 1909
Docket NumberNo. 188,188
Citation53 L.Ed. 984,29 S.Ct. 619,214 U.S. 249
PartiesEUGENE C. KREIGH, Petitioner, v. WESTINGHOUSE, CHURCH, KERR, & COMPANY
CourtU.S. Supreme Court

Messrs. Rees Turpin and James S. Botsford for petitioner.

[Argument of Counsel from page 250 intentionally omitted] Messrs. Clifford Histed and James H. Harkless for respondent.

[Argument of Counsel from page 251 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

This case is here upon a writ of certiorari to the United States circuit of appeals for the eighth circuit. The action was originally brought to recover for injuries received by Eugene C. Kreigh, petitioner, hereinafter called the plaintiff, while engaged in the employ of the respondent, Westinghouse, Church, Kerr, & Company, hereinafter called the defendant, superintending the construction of the brickwork in the erection of a brick and steel building for which the defendant was the contractor.

The case was originally commenced in the district court of Wyandotte county, Kansas. On the application of the defendant it was removed to the United States circuit court for the district of Kansas. In the petition for the allowance of the writ of certiorari a question was made as to the jurisdiction of the Federal court, as it appears that at the time of the removal neither party was a resident nor citizen of the Federal district to which the case was removed, and neither of them a resident nor citizen of the state of Kansas. But it appears that no motion was made to remand for want of jurisdiction in the Federal court, and no question as to the jurisdiction was made until the case came here. In that state of the record the defect as to the jurisdiction being simply as to the district to which the suit was removed, the parties being citizens of different states, the objection as to the jurisdiction might be, and, in our opinion, was, waived, by making up the issues on the merits without objection as to the jurisdiction of the court. It is unnecessary to enlarge upon this feature of the case, as it is controlled by the recent cases of Re Moore, 209 U. S. 490, 52 L. ed. 904, 28 Sup. Ct. Rep. 585, 706; Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U. S. 368, 52 L. ed. 1101, 28 Sup. Ct. Rep. 720.

The remaining question in the case concerns the correctness of the ruling of the circuit court, affirmed in the court of appeals, whereby, upon the conclusion of the evidence offered by the plaintiff, a demurrer thereto was sustained and the case taken from the jury.

The testimony shows, and, in deciding a question of this character, the view must be taken of it most favorable to the plaintiff, that he was foreman of the bricklayers engaged in the construction of a large brick building which the defendant, as principal contractor, was erecting in Kansas City. About the time of the plaintiff's injury a gang of workmen, also employees of the defendant, were engaged in cementing the roof of the building, the plaintiff and his men being engaged in laying the brickwork of the north wall of the building. The roofers were laying concrete upon the top of the roof. This was accomplished by means of a derrick with a rope and bucket attachment for raising the material, which was on the ground on the north side of the building, and which, by means of the derrick and motive power, was raised in the bucket suspended from the boom, or arm, of the derrick, to a height slightly above the roof, and then pulled inward by means of a guy rope attached to the boom, and, when the bucket was at the proper place, the bottom of it was opened and the concrete deposited upon the roof. Then, in order to put the bucket in position for lowering it, it was swung out over the north wall by means of an energetic push, carrying the end of the boom over the north wall and in position for lowering the bucket again. The work of bricklaying under the superintendence of the plaintiff had progressed to a height of about 40 feet in the north wall, and the plaintiff, superintending the erection of a scaffolding for the men to work upon in the further construction of the wall, was standing upon a plank near the wall, when the boom was swung outward by a push from the men operating it, and the plaintiff was struck by the heavy bucket attached to the rope from the end of the boom, and was knocked off the plank and fell a distance of 40 feet to the ground, and thereby severely injured.

The testimony shows that the derrick used for the purposes stated was what is known as a 'stiff-legged derrick,' having a main staff supported by two stiff legs or braces with a swinging boom with hoisting rope attached to it. The derrick at the time was on the top of the roof, and was operated by an engine furnishing the power for hoisting the bucket in the manner we have already described.

The plaintiff introduced testimony tending to show that the usual method of constructing such derricks was to provide them with two ropes, one attached on either side of the end of the boom, to be used to haul it back and forth, and for the purpose of steadying its operation; or by the attachment of a lever to the mast in such a way that a man operating the lever could control the swing of the boom. The boom in use had but the one guy rope, and that the testimony shows was used for hauling the loaded bucket over the top of the wall to the place where the load was dumped on the roof. The method of returning the bucket for lowering was by a strong push of the boom, the single guy rope thereof hanging loose at the time.

The testimony of the plaintiff tended to show that while he knew there was a derrick on the roof, he did not know of its method of operation further than he knew that it was operated by hand. He did not know the number of ropes attached to the boom, or whether there was a lever or not; he had not seen the boom in operation from the roof. At the time he was struck, when working on the north wall, he received no warning of the approach of the bucket, and had been there but a very short time when he was struck by the bucket and knocked to the ground.

In the amended petition it was charged as grounds for recovery that——

'1. The defendants were careless and negligent in furnishing and operating a defective, improper, and unsafe derrick to raise, move, and lower said tub or bucket.

'(a) Said derrick was so constructed and operated that there was no means of moving the arm thereof and said bucket or tub after it was emptied, horizontally to or over the north wall of said building, excepting by the employees of the defendants violently pushing the tub or bucket with sufficient force to cause it to clear the wall of the building, and also move with it said arm.

'(b) Said derrick was so constructed and operated that there were no means of stopping or controlling it or the tub or bucket attached thereto after the bucket or tub was emptied and started toward and over the wall of said building.

'(c) The ropes and pulleys on said derrick were defective, insecure, and improperly arranged...

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