James Stewart & Co. v. Newby

• Citation: 266 F. 287
• Decision Date: 26 April 1920
• Docket Number: 1746.
• Parties: JAMES STEWART & CO. v. NEWBY.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

266 F. 287

JAMES STEWART & CO. v. NEWBY.

No. 1746.

United States Court of Appeals, Fourth Circuit.

April 26, 1920

Leon T Seawell, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., on the brief), for plaintiff in error.

Edward Walbridge, of Norfolk, Va., for defendant in error.

Before PRITCHARD and KNAPP, Circuit Judges, and WATKINS, District judge.

WATKINS District Judge.

This action was begun by Oscar C. Sawyer for injuries sustained while working for James Stewart & Co., a corporation conducting a general contracting business, and which was, at the time of the accident complained of, engaged in building a pier in the waters of Hampton Roads, near Sewell's Point Va. The accident occurred on July 26, 1918. After the declaration was filed, and before the trial of the case Sawyer died in consequence of his injuries. His administrator was substituted as plaintiff, and recovered a verdict of $10,000. At the time of the accident plaintiff in error had in its employment several hundred men under the direction of its general superintendent, J. H. Halpin, a man of about 30 years' experience in construction work. The workmen were divided into squads or gangs, each under the control of a gang boss; the one in which Sawyer worked being under the direction of Gustav A. Erickson, a man of about 11 or 12 years' experience in construction work. This gang was engaged in operating a certain floating Batter pile driver and pile engine, which were then being used in lifting and placing in position heavy timbers. Erickson had no power to employ or discharge the laborers under him. The engineer had had about 23 years' experience around engines. The Batter pile driver is described in the declaration as consisting of--

'a high frame, with a large beam, or leads, and also having a jibboom connected therewith; also certain bolts, pulleys belting, and shafting, and apparatuses and appliances, and the same was operated by said pile engine, propelled by means of steam and electricity, having the power to raise to a height a large beam or pole, to which beam is attached a heavy mass of iron, and then dropping the same upon a pile, driving it into the ground; that the said jibboom attached to said pile driver was used to lift heavy masses of timber, poles, beams, planks, and to place same where needed.'

The jibboom, which is frequently referred to in the evidence as the gin pole, was an upright piece of timber, used sometimes to pull the piles into place for driving, and sometimes as a derrick for handling material. It was on the same order as a derrick, but was stationary, instead of having a swing, as a derrick. It was estimated in the testimony to be about 50 to 65 feet in length, 8 or 9 inches in diameter at the top, something over a foot in diameter at the bottom, and approximately 12 inches in diameter at the point where it broke. This gin pole stood alongside the Batter, and a cable ran through and over a block, with loose ends extending from the block, so that it could be moved up and down to the point desired. The uncontradicted testimony showed that the gin pole was of sufficient strength, with proper use, to lift a weight of over 3,000 pounds, that it had been in use for several months, and that during this time it had constantly been used in lifting timbers of this weight.

At the time of the accident certain heavy timbers, about 24 feet in length, had been placed alongside the docks. The appliances mentioned were loaded on a floating scow, or barge, and it was the custom and proper method of operation that this scow should be moved from time to time, so that, when the timbers were lifted, the jibboom should be opposite the center of each of them, in order that the strain of the lifting should be straight over the pole, and not at an angle. The placing of the scow in proper position for each lift was in charge of Erickson, the gang boss, and it was his duty, after seeing that each piece of timber was properly hooked for the lift, to signal the engineer, who then applied the power and started his engine. Sawyer, at the time of the accident, was engaged as a timber handler, and was at one end of the pile driver, picking up some wire. In attempting to raise one of the timbers, which was 12 inches by 12 inches, and 24 feet in length, and which weighed from 900 to 1,000 pounds, there is testimony to indicate that the scow had not been placed in proper position, that is to say, it had not been moved so that the jibboom should be opposite the center of the timber, and, in consequence thereof, that this piece caught under some other heavy pieces, and this added weight, coupled with the fact that the pull was at an angle, instead of in a straight line, caused the gin pole to break at a distance of some 15 or 20 feet from its top, and the broken piece fell upon Sawyer, crushing and injuring him so seriously that his death resulted after several months of suffering.

The specific negligence charged in the declaration was: First, failure to provide competent, skillful, and experienced persons to operate the pile driver, pile engine, and other appliances; second, failure to provide a reasonably safe and proper place to work; and, third, failure to furnish and maintain safe machinery and appliances. In his evidence in chief, the defendant in error produced no testimony as to the negligence complained of, further than evidence of the fact that the gin pole broke and caused the injury.

At the conclusion of this testimony, plaintiff in error moved for a directed verdict, which was refused. Thereupon a number of witnesses were introduced in its behalf. They testified, among other things, that the gin pole had been properly selected and was suitable for the purpose for which it was intended to be used; that the engine, machinery, and appliances were without defect; that the engineer and foreman were competent, safe, and experienced persons; and that proper inspections were had. None of this testimony was contradicted. In an attempt to show how the accident occurred, plaintiff in error introduced witnesses whose testimony tended to show that the accident was caused, as above stated, by failure to move the scow into proper position, and that the accident was due to the timber being caught under other heavy timbers and the lift being attempted at an angle; these two facts causing such a strain on the gin pole as to result in the break. At the conclusion of all the testimony, plaintiff in error renewed its motion for a directed verdict, which was again refused.

During the progress of the trial the attorney for the defendant in error, over objection of opposing counsel, repeatedly attempted to prove that plaintiff in error was protected by insurance, and that the Accident Insurance Company was liable for whatever damages might be recovered in this case. Having reserved his decision, the presiding judge, at the conclusion of all the testimony, excluded all evidence as to the accident insurance. A number of letters regarding the liability of the Accident Insurance Company were offered in evidence by the defendant in error, but were excluded by the presiding judge, who certifies, in signing an exception thereto, that he did so, believing that the trend of authority on the subject required the exclusion of these papers, and that he did not mean, in so doing, to express his individual views regarding the propriety and right of having such papers in evidence.

The first assignment of error relates to refusal of the motion for a directed verdict. Had plaintiff in error rested its case upon the testimony in chief of the complainant, this motion would have been meritorious, because no evidence of negligence had then been produced, except the mere fact that the gin pole broke and caused the injury. The law is settled beyond controversy that such proof alone was not sufficient to charge the master with liability. 'The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employe to establish that the employer has been guilty of negligence. ' Patton v. Texas & P.R.R. Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Texas & Pacific Railway Co. v. Barrett, 166 U.S. 617, 17 Sup.Ct. 707, 41 L.Ed. 1136; Dixie Peanut Co. v. Lewis, 118 Va. 577, 88 S.E. 72; The Montcalm (D.C.) 249 F. 760; Burras v. Cudahy Packing Co., 230 F. 596, 144 C.C.A. 650. Upon what ground the motion was refused at the conclusion of complainant's testimony is not specifically stated. It is apparent, however, that the motion must have been refused on the ground that there was some evidence to go to the jury upon the question of defective appliances. That this was the opinion of the court is shown by what was said in signing the first bill of exception, wherein, commenting on the charge as to fellow servants, it was stated that this instruction should doubtless have been qualified, 'having regard to the inapplicability of that doctrine, if the jury should have found the fact that the injury arose by reason of the defective appliances of the defendant.'

However, any right which the plaintiff in error may have had, as to a directed verdict in the first instance, was waived when it undertook to produce testimony on its own behalf to disprove the acts of negligence charged against it. Its right then became dependent upon all the testimony submitted at the trial. Silsby et al. v. Foote, 14 How. 218, 14 L.Ed. 394; Wilson v. Haley Live Stock Co., 153 U.S. 39, 14 Sup.Ct. 768, 38 L.Ed. 627; Runkle v. Burnham, 153 U.S. 216, 14 Sup.Ct. 837, 38 L.Ed. 694; Hansen v. Boyd, 161 U.S. 397, 16 Sup.Ct. 571, 40 L.Ed. 746; American Locomotive Works v. Thornton, 259 F. 409, 170 C.C.A. 381.

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