Hoban v. Sandford & Stillman Co.

• Decision Date: 26 February 1900
• Parties: HOBAN v. SANDFORD & STILLMAN CO.
• Court: New Jersey Supreme Court

45 A. 819

64 N.J.L. 426

HOBAN

v. SANDFORD & STILLMAN CO.

Supreme Court of New Jersey.

Feb. 26, 1900.

(Syllabus by the Court.)

Action by John M. Hoban against the Sandford & Stillman Company. Verdict for defendant. Rule to show cause why new trial should not be granted. Rule to show cause discharged.

Argued November term, 1899. before MAGIE, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Warren Dixon, for plaintiff.

James B. Vredenburgh and Charles C. Black, for defendant.

LIPPINCOTT. J. Although the rule to show cause in this case in behalf of the plaintiff is a general one, yet it was allowed on the ground of newly-discovered evidence, and must be so treated. The cause was tried once before at the circuit, and resulted in a verdict for the plaintiff. A rule to show cause was allowed the defendant, and after argument this court made the rule absolute, and directed a new trial. Upon the new trial the same evidence in toto was produced on both sides, and the trial justice, following the opinion in the supreme court, directed a verdict for the defendant, to which direction an exception to the plaintiff was allowed, which' exception was reserved in the allowance of tills rule.

The evidence upon both trials shows that the plaintiff on the 6th day of April, 1897, was in the employment of the defendant company, engaged, as one of a gang of workmen in charge of a foreman, in placing capping upon piling in the construction of a railroad bridge over Berry's creek, in the county of Bergen. He commenced this employment on the morning of this day, and while at his work, with other workmen, in a gang with a foreman in charge of them, between 7 and 8 o'clock, in the attempt to place a cap upon one of the bents of piling, a rope in use in the work broke, and the cap fell upon him and very seriously injured him. The work of placing the capping upon the bents upon the piling was progressing on the westerly side of the creek, and from the creek or the edge thereof westwardly therefrom. At some distance westwardly from the creek a derrick or pile fall had been placed, with which, with an engine, drums, and a gypsy drum and blocks, and the rope attached to the same, the work of driving and capping the piling was being conducted. The general operation of the work seemed, as shown by the evidence to have been that a large rope, to the end of which was attached a chain, passed over the top of the piling machine, or pile fall, as it may be called, and was taken out to where the capping timbers lay, in the creek, or the edge thereof. The other end of this large rope was twisted about a drum connected with the engine, at or about where the pile-driving machine lay. The chain end of the rope was attached to the capping piece of lumber in the creek. The engine was set going, the drum revolved, and thus the capping timber was dragged, or "telegraphed," as the phrase used is, along the ground until it reached the foot of the machine. Then another and smaller rope was attached to the capping piece or timber at its center, and that smaller rope was taken then to the creek, or the edge thereof, and then placed through a pulley which was attached to one of the piles in the creek, and the same rope brought back to the pile fall and wound around another drum, called a "gypsy"; and with the ropes in this position the drum around which the large rope was wound, which passed over the head of the pile fall, was set in motion. This also set the gypsy arum in motion, drawing the rope, so that the timber was pulled out from the pile fall and suspended in the air. The rope over the head of the engine was then slackened, and the timber descended until the timber was nearly level with the top of the bent, and at such a distance from it as was proper in the work. The rope to the pulley was then set in motion, the timber again went into the air, and the process was repeated until the timber reached the place intended, where it was taken in hand by the workmen with whom the plaintiff was engaged, and placed upon the piling. The work of the men with whom the plaintiff was engaged then was to straighten the timber so that when it swung down it would come Into the proper position on the pile. The plaintiff was standing abreast of this particular piece of capping, in order to get it into this position, when the smaller rope, which, in connection with the larger one, was holding it in position, parted, and the timber fell upon him. This smaller rope was 7/8 of an inch in thickness. On the morning of the accident, Whalen, one of the foremen, directed some of the workmen of the gang in which the plaintiff was engaged to bring this rope from the place where it, with other ropes, was kept for use in this work. It was a part of a coil of 1,000 feet of rope, 7/8 of an inch thick, and from 250 to 300 feet long; and when this was obtained it was, in connection with the larger rope which ran over the head of the machine, used by the workmen in rigging the machine for work.

On the trials of this case much controversy arose in relation to this question whether the rope was of sufficient length. This question arose, because upon the length of the ropes much depended, in respect to the strength thereof. The main controversy, therefore, was over the sufficiency of strength of the ropes. On this subject no question was raised over the sufficiency in the strength of the larger rope, or pile-fall rope; that Is, the rope over the head of the machine. The question arose over the smaller, or 7/8-inch, rope, attached to the gypsy drum. Whether it was deficient in strength, by reason of want of proper thickness, was the controverted question in the case. It was clearly shown on the trials that ropes were there provided, of greater thickness, by the defendant, for use by the workmen,—of ample length, thickness, and strength for this work; and therefore the question of whether the master had performed its duty, in furnishing proper ropes for the use of the workmen, was submitted to the jury to decide, and it resulted in a verdict for the plaintiff for a large amount. A rule to show cause why the verdict should not be set aside was allowed. The opinion of this court after the argument of this rule to show cause is as follows: "Per Curiam. This rule must be made absolute, because the verdict was against the great weight of evidence and the charge of the court The pre ponderance of the evidence was that the company had provided, for use in such work as Hoban was on, ropes of the size which his witnesses declared was safe for use. The rope used, which broke, was of less size, and was selected by a foreman working with the gang. For the misjudgment of the foreman in such selection the company was not liable (Maher v. Throop, 59 N. J. Law, 187, 35 Atl. 1057), and the court so told the jury."

On the first and second trials there seemed to be no question whatever at what distance from the creek, or the first bent of piles in or at the edge of the creek, the piling machine and engine were placed, and that all the ropes which were provided there for use were of sufficient length. On this rule to show cause it is attempted to be shown that this small 7/8-inch rope which was used was the only one which was long enough to be used. It is attempted now, according to the affidavits taken on this rule, to show that the machine was at a much greater distance from the edge of the creek westwardly, and at a much greater distance westwardly from the pilings which were then driven, and from the place where the plaintiff was at work, and at such a much greater distance that the ropes which were shown to have been furnished by the defendant for use, and which were of sufficient size and strength, other than the one which was used, were not of sufficient length to use, and therefore there was no choice at all which could be exercised by the foreman in the selection of the ropes; that this was the only one which could be used, and, as it was insufficient, the liability of the defendant had arisen, so far as that the verdict directed for the defendant on the second trial should be set aside, and the question of liability once again submitted to the jury. This position therefore requires us to examine the evidence in the case as tried, in order to determine whether the evidence taken under the rule is what is legally denominated "newly discovered."

Under the evidence at the trials, the piling which had already been driven was in bents (that is, in rows), from the creek outwardly towards the spot where the pile fall was placed. In this respect the very highest numbers sworn to were 7 or 8. Eight is the very highest. The bent to the piling of which the pulley was attached in the creek was upon the edge of it, and after that the highest number of bents sworn to was 7. Some witnesses swear to only 7 bents in all. All of the witnesses, including the plaintiff, with much positiveness identify the 7 or 8 bents. No witnesses attempt to say that there were more, and this was a subject to which the attention of all the witnesses (workmen and others, Including the plaintiff) was particularly directed. It is undisputed, under the evidence, that these bents were, at the greatest, only 10 feet apart, making 80 feet of space, at most. Then the evidence is clear that the machine stood 15 feet west of the westwardly bent, which, at most, would, giving effect to the most liberal calculation under the evidence, make the machine stand 95 feet from the first bent of piling at or in the edge of the creek. This is established by all the evidence in the first and second trials, and it is not disputed, and it was so material to the evidence as to the strength of rope required as to be almost exactly established by the plaintiff. The plaintiff was established to have been at work at the fourth bent, outwardly, westerly from the creek towards the machine, which at the time of the accident would place him about 55 to CO...