Kennedy v. Grace & Hyde Co.

• Decision Date: 27 February 1899
• Citation: 92 F. 116
• Parties: KENNEDY v. GRACE & HYDE CO.
• Court: U.S. District Court — Southern District of New York

92 F. 116

KENNEDY v. GRACE & HYDE CO.

United States Circuit Court, S.D. New York.

February 27, 1899

Gilbert D. Lamb, for plaintiff.

Charles C. Nadal, for defendant.

WHEELER District Judge.

The plaintiff is a carpenter, and was at work for the defendant at night, on tall timbers above the sidewalk on Vanderbilt avenue, steadied by guys across the avenue. In the early morning a mail wagon going along the avenue hit one of the guys, and thereby the plaintiff was thrown from the timber where he was at work to the sidewalk, and seriously injured. This suit is brought for that injury, and now, after verdict for the plaintiff for not properly guarding the street for the protection of the work, has been heard on a motion for a new trial.

The guys were moved from place to place along the avenue by the fellow workmen of the plaintiff, as the work progressed. This guy had been moved but a short time before, and so placed that it might be hit by high wagons passing along the avenue. The principal ground urged in support of the motion is that the injury was caused by the negligence of fellow servants, of which the plaintiff took the risk, and not by anything for which the defendant was responsible.

The employer provides the place. That this imposes the duty of providing for the safety of the place, except as it may be changed by the progress of the work itself, seems to now be well settled. The cases cited for upholding the exception prove the rule. Armour v. Hahn, 111 U.S. 313, 4 Sup.Ct. 433; Finalyson v. Milling Co., 14 C.C.A 492, 67 F. 507; City of Minneapolis v. Lundin, 7 C.C.A. 344, 58 F. 527, and others. This place was a public street, where teams and high vehicles were likely to pass at all hours. There was evidence that watchmen, or red lights, are usually and necessarily stationed about the places of such work to warn drivers, for safety; and that there were none about this work at this time. The progress of the work did not displace these safeguards. The lack of them was negligence of the defendant, which the jury found to be unreasonable, and to have caused the injury to the plaintiff without fault of him. In all the cases, enforcing the exception, noticed, the progress of the work affected the place itself as to safety. As in Armour v. Hahn, 111 U.S. 313, 4 Sup.Ct. 433, the place complained of was a building in process of construction. In Finalyson v. Milling Co. it was a mine being...