Miller v. Pennsylvania Railroad Company

• Citation: 236 F.2d 295
• Decision Date: 13 August 1956
• Docket Number: Docket 23731.,No. 353,353
• Parties: Harvey MILLER, Plaintiff, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant (Allen N. Spooner & Son, Inc., Third-Party Defendant-Appellee).
• Court: U.S. Court of Appeals — Second Circuit

236 F.2d 295 (1956)

Harvey MILLER, Plaintiff, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant (Allen N. Spooner & Son, Inc., Third-Party Defendant-Appellee).

No. 353, Docket 23731.

United States Court of Appeals Second Circuit.

Argued May 16, 1956.

Decided August 13, 1956.

Irving H. Schafer, New York City (William L. Shumate, New York City, of counsel on the brief), for defendant and third-party plaintiff-appellant.

Galli & Locker, New York City (Patrick J. McCann and Patrick E. Gibbons, New York City, of counsel on the brief), for third-party defendant-appellee.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

The question raised by this appeal is whether the Pennsylvania Railroad, a Pennsylvania corporation, is entitled to indemnity from Allen N. Spooner, Inc., a New York corporation, for damages paid to an employee of Spooner who was injured while working on property owned by Pennsylvania.

The Pennsylvania Railroad owns and maintains a building located on the east side of First Avenue between 33rd and 34th Streets in Manhattan, which building is known as Shaft House No. 4. This shaft house contains high tension electrical equipment and fans which are used to ventilate railroad tunnels running between Long Island City and Pennsylvania Station in Manhattan.

Allen N. Spooner & Son, Inc. contracted with Pennsylvania to remove a concrete fan cowl or vent from Shaft House No. 4 and to replace it with a cowl of steel. Pursuant to this agreement Spooner removed the concrete cowl and on October 7, 1950 the new steel cowl was delivered at the shaft house. Because the work on that day involved moving the steel cowl in close proximity to high tension cables outside the building, the electrical equipment was de-energized while the work was in progress.

Spooner found it necessary to cut the cowl into two pieces in order to install it. The pieces were put in place on October 7, but it was still necessary to weld the two pieces together and to weld the cowl to the vent which passed through the north wall of the building and fitted over an airshaft which led to the tunnels below. None of the remaining work was done until Saturday, October 14. There was testimony that the work was done only on weekends because representatives of Pennsylvania and Spooner had agreed that traffic through the tunnels was lighter at that time. On October 14 a group of Spooner's employees including Miller and Sharkey, two welders, continued their work but were unable to finish. They returned on Sunday, October 15 to finish the job. During the afternoon of that day Miller and Sharkey took turns at working on the remaining welding.

On the north wall of the shaft house, about four feet above the cowl on which Sharkey and Miller were working, was a rack of high tension equipment. Although this equipment had been de-energized on October 7, it was not de-energized on October 14 or 15. The pot heads and petticoat insulators of this high tension equipment were located above a narrow platform and behind a railing on which hung a sign reading "Danger Live Wire Keep Off." Miller testified that he had been warned by his foreman to stay off the platform and to keep away from the high tension equipment. He testified that he heeded these instructions, did not go on the platform, and was careful not to touch the equipment.

In welding the top of the cowl, however, it was necessary for the welders to work very close to the high tension equipment. This equipment was about three feet from the north wall of the shaft house and four feet above the top of the cowl. The welders had to work on top of the cowl in the three foot space between the electrical equipment and the north wall.

Shortly after 9 P.M. on October 15, while Sharkey was welding and Miller was standing near him, there was a bright flash and an explosion which filled the shaft house with dust and smoke. Miller was thrown down, his clothes were smoking, part of his clothing had been torn from his body, and he suffered serious injury.

Miller brought action against Pennsylvania alleging that his injuries were the result of its negligence in maintaining an unsafe condition in its shaft house. Pennsylvania filed a third-party complaint against Spooner seeking indemnity for any damages which might be recovered from it by Miller. Jurisdiction was based on diversity of citizenship.

After Miller put in his affirmative case Pennsylvania settled with him for $70,882.88. Counsel for Spooner stipulated that Pennsylvania's settlement was not improper or improvident, and it was agreed that the third-party action be tried before Judge Rayfiel without a jury and that the evidence adduced thus far in the trial be deemed a part of the record in the third-party action. Judge Rayfiel, after hearing further evidence, gave judgment for the defendant. He found that Pennsylvania was negligent in allowing dust, dirt, and metal particles to accumulate on the insulators and electrical equipment, that this accumulation caused a "flashover" or short circuit resulting in an "arc or long flame," and that it was this "flashov...