Kreigh v. Westinghouse, Church, Kerr & Co.

• Decision Date: 06 March 1907
• Docket Number: 2,423.
• Citation: 152 F. 120
• Parties: KREIGH v. WESTINGHOUSE, CHURCH, KERR & COMPANY.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 120

KREIGH v. WESTINGHOUSE, CHURCH, KERR & COMPANY.

No. 2,423.

United States Court of Appeals, Eighth Circuit.

March 6, 1907

(Syllabus by the Court.)

Roofers were using a derrick and bucket to hoist cement from the ground and unload it on the roof. No one but these workmen had been at work or moving about on the roof for several days. The brick walls had not reached the top of the building. The plaintiff was the superintendent of the brickwork. They were all employes of the defendant. The roofers swung the boom and bucket in over the north wall by means of a rope attached to the end of the boom, and sent it back by a push. Just as they pushed it back on one of its trips the plaintiff came up on to a plank just beyond the north wall, stepped into the path of the bucket, and stood there looking north to direct the construction of a scaffold and the bucket knocked him off and injured him.

Held the defendant was not guilty of negligence because it failed to establish a code of signals for the roofers to enable them to warn other employes of the approach of the bucket, nor because the derrick was not provided with a lever nor the boom with a guy rope on its north side to steady and control its movements.

An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of an act of negligence is not actionable, because it is not the proximate cause, but either the remote cause or no cause whatever of the damage.

The duty of caring for the safety of a place or of machinery in cases in which the work which the servants are employed to do necessarily changes the character of the place or of the machinery as to safety, as the work progresses, is the duty of the servants to whom the work is intrusted, and it is not the duty of the master.

The duty of construction and provision is the master's. The duty of operation and of protection from negligent use is the servant's.

Rees Turpin and Robert E. Morris (Edward D. Ellison and John E McFadden, on the brief), for plaintiff in error.

J. H. Harkless (C. S. Crysler and Clifford Histed, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff, the foreman in charge of the brickwork, and certain roofers were engaged in constructing a building. The steel frame had been erected and was about 42 feet in height the bricklayers were at work raising the walls which had not reached the roof, and the roofers were laying cement upon the top of the building and were using a stiff leg derrick and an engine to hoist the material. This derrick was near the northeast corner of the structure, and the cement was on the north side of the building. To a rope which extended over a pully on the end of the boom a bucket was attached. This was the method of operation: This bucket was filled with cement and raised by means of the engine and rope to a point a little higher than the top of the building, and was then swung in over the roof by means of a guy rope attached to the end of the boom on its south side. The cement was then dumped from the bucket, and the roofers pushed the empty bucket back with sufficient force to cause it to swing clear of the north wall, and it was then lowered to the ground for another load. The plaintiff had been at work on this building, and the roofers had been raising the cement in this way, for some days, so that the plaintiff knew the location and the general operation of the derrick. As the concrete was hoisted, the bucket swung in over the north wall at the same place and in the same path each time. No one but the roofers was or had been at work or moving about on the top of the building for several days. Under these circumstances, when, upon one of its trips, the bucket had been hoisted, drawn in over the north wall, and dumped, the plaintiff climbed upon a plank on the north side of the north wall to superintend the construction of a scaffold below, and stood there looking north at the exact place where the bucket swung over the wall at the exact time that the roofers pushed it back for another load. The bucket knocked the plaintiff to the ground and severely injured him. At the time of the injury he had been above the top of the building from 50 seconds to 3 minutes. There was no evidence that he attempted to notify the roofers of his presence or...