McDonald v. Buckley

• Decision Date: 21 May 1901
• Docket Number: 1,033.
• Citation: 109 F. 290
• Parties: McDONALD et al. v. BUCKLEY.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F. 290

McDONALD et al. v. BUCKLEY.

No. 1,033.

United States Court of Appeals, Fifth Circuit.

May 21, 1901

This suit was originally brought in the circuit court for Monroe county, Fla., and was removed by plaintiffs in error to the circuit court of the United States for the Southern district of Florida. It was an action of trespass on the case, brought to recover damages for injuries received by Eugene J Buckley, defendant in error, while in the employ of the Union Bridge Company. The declaration charges, in substance, that the Union Bridge Company was engaged in the work of erecting and constructing certain wharves, coal sheds, and other work of a similar character in Key West; that none of the firm resided there, nor gave their personal attention or supervision to the work, but had placed one J. C. Griffith in charge and control of the work and of the men engaged thereon; that Buckley was hired through said Griffith, and by him was told to place iron rings on the top of the piles before they were driven; that on the 18th of July, 1898 Buckley was sent by Griffith to place a ring over the top of a pile, and while in the act of placing it, and before he had time to place the ring, Griffith negligently without plaintiff's knowledge, and through no neglect or fault of plaintiff, gave the signal to drop the hammer of the pile driver; that the hammer was dropped on Buckley's right hand, whereby he lost four fingers and the use of the hand for life. The declaration further charged and averred defective and negligent equipment, rig, and appliances. The plaintiff was a cigar maker, depended on that vocation for his support and that of his family, and claimed damages in the sum of $15,000. The defendants pleaded: First, not guilty; second, that the injury was caused by negligence of the plaintiff, and not otherwise; third, that it was caused by contributory negligence of the plaintiff. Upon these issues the case went to trial, and resulted in a judgment and verdict in favor of plaintiff for $7,500. After a vain effort to obtain a new trial, the defendants in the lower court sued out a writ of error to this court. On the trial of the case, the plaintiff, among other matters, testified as follows: 'On the 18th of July, I was in the employ of the Union Bridge Co. Mr. Griffith, the foreman, employed me. By Mr. Griffith I mean the gentleman who was just on the witness stand. On the Saturday morning before I was hurt, at about nine o'clock, I went to Mr. Griffith, and asked him if he could give me a job. He asked me what I could do. I said, 'Anything you tell me.' He said, 'All right; go to work.' I asked him what did he pay the men. He said $1.50 and $2.00 a day. I said, 'Mr. Griffith, I won't work for a dollar and a half a day.' He said, 'All right; if you are worth two dollars a day, I will give it to you.' I went to work on Saturday morning at about nine o'clock. I did not know who hired and discharged the men. Mr. Griffith told me what work to perform. On Monday, July 18, 1898, we were engaged in pulling up a pile we had put down Saturday evening. We were so engaged all day until about five o'clock. After the piles had been gotten up, we were engaged in clearing away the two piles, and about ten or fifteen minutes after that Mr. Griffith sent me over to the south foundation for a 6-inch ring, and when I got back with it they were driving piles. There was a great deal of confusion, and everybody seemed excited, and, as I arrived with the ring, Mr. Griffith, the foreman, called out, 'Damn it, ring that pile,' and I went on the platform of the pile driver to put the ring on the pile, and as I was putting the ring on the pile he let the hammer drop. He gave the signal for the hammer to drop, and my hand was mashed, and I had to go home. ' Griffith testified as follows: 'Mr. Sheridan was up in the leads, and in putting this pile in the old hole where we had pulled the other one out it went two platforms below his platform,-- about 16 feet. That necessitated for Mr. Sheridan to come down, or for somebody to go up from the bottom. It was handier for some one to go up from the bottom than for him to come down, and I spoke out, 'Somebody put a ring on that pile.' Buckley looked up, and understood what I meant, picked up a ring, and went up and put it on the pile. Q. Please state what took place after you say Buckley picked up the ring, and went up and put it on the pile. A. After the hammer had hit the pile, he threw the ring on the pile, and about two-thirds of it went on the pile, and about one-third was off the pile. He grabbed hold of the ring with his right hand to jerk the ring back into proper position, and the hammer came down, and caught his hand. Q. How many times had he attempted to put this ring on the pile when he got hurt? A. He was making the second attempt. Q. Was the hammer up when he put the ring on the pile the first time? A. It was going up. Q. Did you give the signal to drop the hammer at that time? A. No, sir. ' The evidence was undisputed that Griffith was the foreman of the pile-driver gang of seven men, including himself; that, while he directed the operations of the men, he also worked with them in performing the work, at least so far as to give the signals directing the engineer in using the hammer; that the Union Bridge Company were contractors engaged in the construction of iron and foundation work, with a place of business in New York; that they sent out a general foreman for each job, and a general manager for each contract; that, while W. S. McDonald was the manager of the Key West work, and also of the Tortugas by the name of Moorman, and another general foreman in charge of the work at Key West, who was

Griffith himself. After the testimony was in, and before the jury retired, the defendants requested the court, among other charges, to charge the jury as follows: 'The defendants' attorney requests the court to instruct the jury to find a verdict for the...