Middleton v. P. Sanford Ross, Inc.

• Decision Date: 17 February 1914
• Docket Number: 2486.
• Parties: MIDDLETON v. P. SANFORD ROSS, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F. 6

MIDDLETON v. P. SANFORD ROSS, Inc.

No. 2486.

United States Court of Appeals, Fifth Circuit.

February 17, 1914

The material allegations of the first count of the petition are as follows:

That P Sanford Ross, Incorporated, is a New Jersey corporation having an agent, office, and place of business in Chatham county, Ga.; that the petitioner is the widow of Edwin Middleton, of Chatham county, Ga., lately deceased, and claims damages from the said P. Sanford Ross, Incorporated (hereinafter called the defendant), by reason of the homicide of her husband, in the sum of $25,000; that the said defendant is engaged in the business of owing and operating dredges and other boats, and at the times hereinafter named was engaged in said business. Defendant, on the 22d day of March, 1912, was engaged in rebuilding one of its dredge boats which had been damaged by fire, said dredge being rebuilt at a wharf in Savannah river in said county and state, near the foot of Barnard street, and the work thereon being done by and under the supervision of the defendant company.

Messrs John Rourke & Sons, a firm of machinists, had been employed by the defendant to install an engine in said dredge boat. Petitioner's husband was in the employ of said John Rourke & Sons in the capacity of foreman, and was to have superintended the installation of said engine in said dredge after same was placed in position, coupling and installing said engine and adjusting its necessary parts. The wooden deck of said dredge was being erected and the necessary space left thereon in the forward portion thereof for the installation of said engine in the 'hold' of the dredge. Said engine had been placed upon temporary beams, it being intended to take out said temporary beams and permanently install said engine on its bed. In order to 'house' over said dredge and to complete the upper structure thereof, upright posts were installed by defendant along the side of said dredge on its deck at intervals of about 20 feet apart. These uprights are about 20 feet in length. The deck of said dredge is about 30 feet wide. Crosswise of said dredge, and extending from the upright posts on each side thereof, are laid crossbeams or timbers, intended to be securely fastened, and thus making the framework of the upper portion of said dredge. The framework is known as the 'hog frame.' Two of said upright posts at the time hereinbefore stated were erected about 20 feet aft of the place where said engines were being installed. A crossbeam about 30 feet in length and about 12 x 12 in size, had been placed on the top of said uprights, extending crosswise of the deck. This was intended to be permanently placed and bolted. On the wharf was located a steam-hoisting engine with derrick and fall attached, the derrick boom being movable and swinging over the dredge.

E. D. Van Winkle was the superintendent of the defendant in charge of the work of reconstructing said dredge, and was its alter ego at the time and place herein referred to. During the course of said work and on the date aforesaid, it became necessary to remove a stick of timber upon which the engine was resting. This timber was about 14 inches by 14 inches and 25 feet in length. In order to accomplish this, a wire cable was run from said derrick boom and fastened around the timber underneath said engine. Said cable was not fastened in the middle underneath said engine. Said cable was not fastened in the middle of said timber. It was not cross-tied nor balanced. The result was that when said timber was hauled by said cable and brought above the deck, one end sagged down and the lighter end thereof was projected upward. Some of the employes of the defendant caught hold of the lighter end of said stick of timber while it was being moved. As the timber was being hauled upward it got beyond the control of said men who were holding the lighter end thereof, and the heavy end sagged downward, jerking the other end from the control of said men. As said stick of timber thus jerked loose, it struck the crossbeam above described, resting on the two upright posts of the 'hog frame,' and knocked the same from its position, throwing it down upon the deck of said dredge with great force and violence.

Petitioner's husband was not engaged in the work of moving said stick of timber, nor did his duties require that he should take any part therein, and none of the employes of John Rourke & Sons was engaged in such work, the same being done entirely by the defendant, its servants and employes. When the work of removing said timber commenced, petitioner's husband had walked aft of the place where said work was being performed, and was standing at the side of the dredge, about 15 or 20 feet away, in what was apparently a safe place. The place where petitioner's husband stood was a safe distance away from said work and not in the course of line of work. It was on the wharf or starboard side of said vessel, by the upright posts of said 'hog frame.' Petitioner's husband had nothing to do with the construction or placing of said crossbeams, or in the removal of said beam from beneath the engine. While petitioner's husband was thus standing in a place of apparent safety, without warning of any kind, the crossbeam, which should have been securely fastened and bolted in position, was struck by the stick of timber being raised out of said hole of said dredge, as described in the preceding paragraph, and fell with great force and violence, striking petitioner's husband upon the head and inflicting injuries from which he died within a short time.

At the time said injuries were received by petitioner's husband, he was in a place where he had a right to be. He did not contribute or consent to the said injuries, and could not, by the exercise of ordinary care, have avoided the same. Defendant knew of the unsafe and insecure position of said cross-beam; by the exercise of ordinary care it could have so known.

Defendant was negligent at the time and place aforesaid:

(a) In failing to provide a safe place to work in and aboard said dredge, and at the place where petitioner's husband was killed.

(b) In failing to securely fasten both ends of said crossbeam resting upon said uprights, as it should have done prior to the removal of said timber.

(c) In failing to warn petitioner's husband of the failure on its part to securely fasten and bolt the said ends of said crossbeams resting on the upright posts, and of its unsafe and insecure position.

(d) In allowing said crossbeams to lie on the top of said upright posts without fastening or support of any kind whatever so as to give notice or warning of its unsafe position and condition.

(e) In negligently and carelessly removing said stick of timber from beneath said engine bed.

(f) In failing

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