New York Electric Equipment Co. v. Blair

• Decision Date: 08 April 1897
• Citation: 79 F. 896
• Parties: NEW YORK ELECTRIC EQUIPMENT CO. v. BLAIR.
• Court: U.S. Court of Appeals — Second Circuit

79 F. 896

NEW YORK ELECTRIC EQUIPMENT CO. v. BLAIR.

United States Court of Appeals, Second Circuit.

April 8, 1897

This is a writ of error to review the judgment of the circuit court of the United States for the Southern District of New York which was entered upon a verdict in favor of the plaintiff for $15,000, in an action brought to recover damages for severe personal injuries received by the plaintiff in consequence of the alleged negligence of the defendant's servants. The accident occurred on April 1, 1895, in the extension of a building on Elm and Leonard Streets, in New York City. The plaintiff was in the employ of Otis Bros. Constructors of passenger elevators, and was at work in elevator shaft No. 1, on a platform about six feet above the fourth floor. The defendant was equipping the building with electrical appliances, and its employes were hoisting iron pipes of ten feet in length and an inch in diameter, in bunches of six, from the first floor to the ninth floor, in elevator shaft No. 3. There were four shafts, which were apparently close to each other. The pipes in each bundle were tied together by a rope twisted around them near the bottom of the bundle, and looped about them against towards the top. No bagging or canvas was placed around the lower ends of the pipes, and the coupling ends were intended to be placed at the top of the bundle, so as to form a sort of cone, with the larger ends upward. The plaintiff offered evidence tending to show that the defendant's workmen who were attending to this business, were warned to be careful, and were told that the right way to raise the pipes was to roll canvas on the bottom of the bundle, and make a hitch from the bottom and around the canvas; that a bundle passed the fourth floor in its upward ascent, with one pipe projecting below the other pipes, with its coupling end downwards; that a pipe forthwith came down the same shaft, and struck a cross beam between the second and third shaft above the fourth floor; that this pipe struck the plaintiff, threw him to the fourth floor, broke his lower jaw, lacerated his scalp, and that permanent partial motor paralysis of the right side was the result which will probably be progressive, and entirely prevent his working against. The defendant's testimony tended to show the safety of the method of securing the bundles, the care with which they were tied, and the improbability that a pipe fell from a bundle. The defendant also urged the inability of the plaintiff to prove that its pipe fell and inflicted the injury.

Edward C. James, for plaintiff in error.

Frank Dudley Tansley, for defendant in error.

Before PECKHAM, Circuit Justice, and WALLACE and SHIPMAN, Circuit judges.

SHIPMAN Circuit Judge (after stating the facts as above).

Upon the writ of error, the defendant relied much upon the alleged error of the trial judge in refusing to grant a motion, at the close of the testimony on both sides, to direct a verdict for the defendant upon the ground that the plaintiff's testimony presented no adequate question of fact to go to the jury, and that a cause of action had not been proven. The statement of what has been given of the facts which the plaintiff attempted to show directly, or to have inferred from proven facts, is sufficient to indicate that he undertook to prove that his injury was occasioned by the negligent conduct of the defendant's servants, and against which they had adequate warning. An examination of the record leads to the conclusion that the jury were justified in finding that the plaintiff had sustained the burden of proof which he took upon himself, and in finding that his injury was caused by the undue and improper carelessness of the defendant's employes in attempting to hoist bundles of inadequately protected iron pipes to the ninth story of the building. The remaining exceptions, save one, were in regard to the admission or rejection of testimony.

A witness for the plaintiff testified that on the day of the accident, and before it occurred, and on the preceding day he notified the men who were hoisting pipe of the necessity of care. Another witness testified that on the morning of the accident he told the men who were assisting in hoisting pipe on the ground floor that the proper way was to wrap canvas around the bottom of the bundle for the purpose of holding the pipes fast. An overruled objection was taken to the testimony of the first witness that it was immaterial, and incompetent upon the question of negligence, but notice to the defendant, before an injury, of the nature of the dangers to be apprehended and of the unsafe practices which he is employing, is competent upon the question of his negligence by the use of methods which he knew, or ought to have known, were hazardous to the lives of those who are necessarily exposed to the danger. Brady v. Railway Co., 127 N.Y. 46, 27 N.E. 368. The defendant moved to strike out the testimony of the second witness, because it did not appear that the conversation was with one of its employes. The denial of the motion is the ground of an exception. There was enough evidence to justify the conclusion that the person who was...