Larsen v. O'Rourke Engineering Const. Co.

• Decision Date: 04 April 1910
• Docket Number: 175.
• Citation: 178 F. 541
• Parties: LARSEN v. O'ROURKE ENGINEERING CONST. CO.
• Court: U.S. Court of Appeals — Second Circuit

178 F. 541

LARSEN v. O'ROURKE ENGINEERING CONST. CO.

No. 175.

United States Court of Appeals, Second Circuit.

April 4, 1910

Frank Moss, for plaintiff in error.

Bertrand L. Pettigrew, for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge.

The plaintiff, who was in the employ of the defendant as a 'rigger,' was injured February 22, 1907, while engaged in placing the foundations for the Hudson Terminal Building, bounded by Church, Greenwich, Cortlandt and Fulton streets, New York. At the time of the accident he was sitting on top of a section of shafting when the boom of the derrick which placed the shafting in position suddenly descended upon him, causing severe injuries which resulted in the loss of his right leg. The derrick was one of four, arranged at each corner of a 'traveler,' and was operated by an electric engine in charge of an experienced engineer.

There was also a signalman for each engine. After landing the section in question and getting a signal to slack off so that the plaintiff, Larsen, could disconnect it, the engineer McTighe, moved to the opposite side of the traveler to answer a call of nature and while he was thus detained O'Rourke, the signal boy, went over to the engineer's seat, where there was a small improvised stove, presumably to get warm.

Though there is no direct evidence that O'Rourke started the engine, the presumption is very strong that he must have done so, as he was seen climbing over the engine at the time in question. McTighe testified that he left the engine with the power turned off, so far as it was possible for him to do so with the drum dogged and the friction thrown out. In such circumstances nothing but human agency could have set the engine in motion. Upon a verdict directed for the defendant every doubt must be resolved in favor of the plaintiff. On the plaintiff's proofs, therefore, the following propositions are established: First. The plaintiff, McTighe and O'Rourke were fellow servants. Second. The plaintiff was injured by the negligence of O'Rourke. Third. The plaintiff was not guilty of contributory negligence.

The case clearly falls, therefore, within the rule exempting the master for an injury to a servant occasioned by the fault of a fellow servant, unless it can be shown that the master was himself guilty of negligence. The only fault imputed to the master here is its failure to make rules.

Of course the establishment of the general proposition that the defendant should have promulgated rules for the conduct of a business so hazardous, will not aid the plaintiff unless it be shown that it was the defendant's duty to publish a rule which would have prevented the accident in question. For instance, the court might find that a mine owner should post rules stating when dynamite should be brought into the mine and under what conditions, but this would not aid an employe...