Kaare v. Troy Steel & Iron Co.

• Decision Date: 03 October 1893
• Citation: 34 N.E. 901,139 N.Y. 369
• Parties: KAARE v. TROY STEEL & IRON CO.
• Court: New York Court of Appeals Court of Appeals

139 N.Y. 369

34 N.E. 901

KAARE

v.TROY STEEL & IRON CO.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, third department.

Action by Jens Kaare against the Troy Steel & Iron Company for personal injuries. From a judgment of the general term (19 N. Y. Supp. 789) affirming a judgment for plaintiff, defendant appeals. Reversed.

O'Brien and Maynard, JJ., dissenting.

R. A. Parmenter, for appellant.

G. B. Wellington, for respondent.

EARL, J.

In the night of June 13, 1887, the plaintiff was in the employment of the defendant as a laborer, and while engaged in wheeling a load of slabs over an elevated platform into its boiler house on Breaker island he fell from the platform, and was seriously injured, and this action was commenced by him on the 3d day of December, 1889, to recover for his injuries. The account he gives in his evidence of the accident which befell him is as follows. He had been at work for the defendant on the island about two months, and for about two weeks had wheeled coal over the platform into the boiler room. One of those weeks he worked in the daytime and one in the nighttime, and he had commenced his night work in the third week. He had wheeled coal all day on Sunday, June 12th, and between 1 and 2 o'clock on Monday morning the supply of coal was exhausted, and he, Sullivan, Keeler, and other workmen, were ordered by Mr. Stevenson, the night boss, to wheel slabs to the boiler room for fuel; and be and the others asked Stevenson to wait until daylight, as the platform was dangerous to work on when they could not see. He nevertheless ordered them to proceed with the work of wheeling the slabs upon wheelbarrows. The plaintiff loaded the slabs, which were about two yards long, crosswise upon his barrow. The platform was made of two planks, each one foot wide, and ascended, so that it was 15 feet high where he fell. There were no guards on the sides of the platform, and no lights so that he could see ahead at the place where he fell. There was a hole in the platform which he could not see on account of the darkness, and when the barrow struck that as he was wheeling the first load of slabs, it tipped over, the slabs struck against the door of the boiler room, and he was thereby thrown off from the platform. It was the hole in the platform which tipped over the barrow, and caused the accident. The hole had been there about two weeks, and he had frequently seen it, and had several times called the attention of Mr. Cooper, whom he styled the ‘head boss,’ to it, saying to him that it was dangerous in rainy weather, and slippery. Other workmen had also called his attention to it, and he said he would see about it. He gave no particular description of the hole when he was first examined. But the plain inference is that it was not there when the platform was built, it was not through the platform; it was a mere imperfection or depression, caused by the use of the platform. Keeler had preceded him with a load of wood in safety. This is the story of the plaintiff as to the cause and manner of the accident. He called no witnesses whatever to confirm it in any respect. As to the width of the platform, and its height, and as to the lights and the hole, he is his only witness. There must have been numerous persons who knew the condition of the platform, if he told the truth about it, and yet he did not call one of them.

The defendant called several witnesses as to the condition and use of the platform, as follows: Martin Fay, who had been in the employ of the defendant for many years, a millwright and carpenter, built the platform, in the early part of May, 1887, of oak, spruce, and pine, seven feet wide, of seven plank. There was no defect in any of the planks, and the platform was built wide enough so that two men with barrows could use it at the same time, on going up and the other down, and there was plenty of room for them to pass each other. The door of the boiler room into which the men wheeled the slabs was four feet and six inches wide. The height of the platform at the lower end was six feet and six inches, and at the upper end at the boiler room seven feet above the filling under it. He saw the platform, and passed over it every day after it was built, and it was in good condition, and there was no hole in it. There were pieces of scantling spiked on the sides of the platform to hang torches on. He saw the platform as late as 8 o'clock in the evening before the accident, and it was well lighted, so that one could see all around on both sides of it. The workmen had had no difficulty in working on this platform before. Hugh Munroe, a foreman in the employ of the defendant, gave evidence in all essential respects confirming that of Fay. He assisted in building the platform, and said he knew there were seven planks, three inches thick, and that it was seven feet wide. The morning after the accident, he and others examined the platform, and there was no defect or hole in any of the planks. The platform, at the time of the trial, was seven feet wide, and in that respect had never been changed since it was built. Mr. Touceda, a civil engineer and chemist in the employ of the defendant, testified that the length of the platform was eighty feet, and that it was eight feet high at the highest point, and that the boiler room door was four feet six inches wide. Mr. Keeler, at the time of the accident one of the defendant's workmen, testified, in substance, that at that time he was working with the plaintiff, wheeling wood over the platform; and when the plaintiff fell he was wheeling a load of wood about six feet behind him. They had been wheeling wood about an hour before the accident occurred. The slabs were four feet long. He loaded the slabs on his barrow lengthwise of the barrow, and wheeling until 6 o'clock in the morning he had no trouble on the platform, which consisted of seven planks, each ten or twelve inches wide. There were a good many men engaged in wheeling the wood, and they wheeled the loaded barrows up on one side of the platform, and came down with empty barrows on the other side. There were lights hung on both sides of the platform, and there was plenty of light, so that the whole of the platform could be seen. The plaintiff was close by the boiler-room door when he fell, and the slabs were piled on his barrow crosswise. Either the wheels of the barrow or the slabs struck the side of the doorway, and thus caused the accident. He never discovered any hole in the plank, and there was none, and he never made any complaint of the hole or of the platform, or heard any one else make any. At the time he gave his evidence he was not in defendant's employ, and had not been for two years. Mr. Trowbridge worked for the defendant in 1887, and was night timekeeper. He was well acquainted with the platform, examined it, and went back and forth upon it every night. There were seven planks, side by side, on the platform, which was seven feet wide; and, in wheeling, men with loaded barrows would go up on one side, while men with empty barrows came down on the other side. From the time the platform was built to the time of the accident he saw it every night, and there was no change in its width, and it was safe and strong. John Sullivan testified that he was working for the defendantat the time of the accident; that he was wheeling coal and wood that night over the platform; that the platform was six or seven feet wide; that he made no complaint, and heard no complaint by any one of the platform; that there was a depression worn by the barrows in one of the planks, of about one-quarter of an inch, which did not amount ot anything, and did not cause any difficulty in the use of the platform; that the platform was about two feet...