New York Lubricating Oil Co. v. Pusey

• Decision Date: 13 January 1914
• Docket Number: 90.
• Citation: 211 F. 622
• Parties: NEW YORK LUBRICATING OIL CO. v. PUSEY.
• Court: U.S. Court of Appeals — Second Circuit

211 F. 622

NEW YORK LUBRICATING OIL CO. v. PUSEY.

No. 90.

United States Court of Appeals, Second Circuit.

January 13, 1914

William Butler, of New York City (Lowen E. Ginn, of New York City, of counsel), for plaintiff in error.

King &amp Booth, of New York City (Frederick P. King, of New York City Albert D. MacDade, of Chester, Pa., and Frederick J. Moses of New York City, of counsel), for defendant in error.

Before COXE, WARD and ROGERS, Circuit Judges.

ROGERS Circuit Judge.

This action was brought to recover damages for personal injuries arising out of the alleged negligence of the defendant. A verdict was returned in favor of the plaintiff and against the defendant for $10,000, and judgment was entered for $10,105.35, damages and costs.

The plaintiff was a deck hand employed by the Pure Oil Company on one of its barges-- loaded with oil in bulk. The oil which had been sold to the defendant, was being pumped from the barge directly into one of defendant's tanks. In all such transactions the custom is to have the contents of the tank gauged before and after delivery by representatives of the buying and selling companies who go to the top of the tank, measure the depth of oil through a manhole, agree upon the gaugings and exchange signed memoranda of their measurements. The defendant, who had had previous experience and had done gauging before, was designated by the captain of the barge to make the gaugings for the Pure Oil Company, and one O'Brien was designated by the defendant to make the gaugings on its behalf. The tank was cylindrical in shape, 30 feet high and about 20 feet across. The only means of reaching its top was by a series of handholds forming a ladder up the side of the tank. The top step was 16 1/2 inches below the edge of the tank. The roof was conical and sloped down from the center to the circumference. There was a manhole on the roof about six inches from the edge of the tank and directly in front of the ladder. The manhole cover weighed about 25 pounds. In the middle of the manhole cover was a handle in the form of a low arch. The cover was intended to be fastened down by four bolts. On the day of the accident, and for several years before, there was but one bolt in the cover. O'Brien, the defendant's gauger, had frequently been on the tank to gauge, and knew that there was but one bolt in the slots. The plaintiff had never done any gauging on this particular tank, and had never seen a manhole cover fastened with bolts on a sloping roof tank. The usual construction of sloping roof tanks includes a manhole cover fastened to the roof by a hinge. The plaintiff was not informed that the cover was insecure. O'Brien preceded the plaintiff up the ladder. He reached across the manhole cover and took hold of the flange and thus climbed safely to the roof. Then plaintiff mounted the ladder, and as he reached the top saw the cover right in front of him and took hold of the handle to pull himself over the edge. It came off in his hand, and he fell to the ground and was injured. The bones of his leg were driven down through the ankle bone and came out and produced a very bad injury. He was operated on several times in an effort to save the foot. The physicians on both sides agreed that the foot would have to be amputated.

The court below charged the jury that it was one of the duties which any employer of men is under to furnish a reasonably safe place for his own workmen to work in, and that, if in the course of his workmen's employment, some outsider is invited upon the premises to take part in the work which is being done by his own workmen, then the same employer is bound to exercise ordinary care and prudence in seeing that the place where the party is invited to work is in a reasonably safe condition. He also informed the jury that it was for them to say whether the defendant had furnished a reasonably safe place for his own workmen and for the people who were invited to come there and get up onto the top of that tank, and that if they found that the plaintiff's own negligence contributed to his injury, he could not recover.

In considering whether there was error in the charge, it becomes important to inquire whether the defendant owed any duty to the plaintiff. If the court can say as a matter of law that no duty was owing from the defendant, the judgment must be reversed. The plaintiff was not a trespasser, but was rightfully upon the property. The defendant invited the plaintiff's employer to enter on the premises with such of its servants as might be necessary to fill the oil tank with the oil which he had purchased, and, acting under the orders of his employer, the plaintiff entered. An invitation is implied by the law where one enters on the premises to carry out a purpose which is to the common advantage or to the common interest of the owner and himself, as in the case of one going on property on business of the owner. Heskell v. Auburn, Q.H. & P. Co., 209 N.Y. 86, 91, 102 N.E. 540; Dixon v. Swift, 98 Me. 207, 56 A. 761; Norris v. Nawn Contracting Co., 206 Mass. 58, 91 N.E. 886, 31 L.R.A. (N.S.) 623, 19 Ann.Cas. 424; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am.St.Rep. 463; Purtell v. Philadelphia & R. Coal Co., 256 Ill. 110, 99 N.E. 899, 43 L.R.A. (N.S.) 193, Ann. Cas. 1913E, 335. The law is clearly established that the owner of premises who induces another to come upon it by invitation, express or implied, owes to him the duty of exercising ordinary care and prudence to keep the premises in a safe and suitable condition so that he will not be exposed unnecessarily or unreasonably to danger. Barrett v. Lake Ontario Beach Improvement Co., 174 N.Y. 310, 66 N.E. 968, 61 L.R.A. 829; Wright v. Perry, 188 Mass. 268, 74 N.E. 328; Smith v. Jackson, 70 N.J.Law, 183, 56 A. 118; Crogan v. Schiele, 53 Conn. 186, 1 A. 899, 5 A. 673, 55 Am.Rep. 88; Lauritsen v. American Bridge Co., 87 Minn. 518, 92 N.W. 475. In Holmes v. N.E. Ry. Co., L.R. 4 Exch. 254, a workman going into the private grounds of a railroad company to assist in unloading coal was allowed to recover damages for an injury sustained by the insecurity of a flagged path in the yard. He was not a mere licensee; being there, as the court said, in a transaction of common interest, he was entitled to require that the defendant's premises should be in a reasonably secure condition. The case was affirmed in L.R. 6 Exch. 123.

In his work on Torts (3d Ed.) p. 1259, Judge Cooley states the rule as follows:

'When one expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.'

It is only those parts of the premises where the person invited is expected to be that the owner is required to keep in a reasonably safe condition Cowen v. Kirby, 180 Mass. 504, 62 N.E. 968; Phillips v. Library Co., 55 N.J.Law, 315, 27 A. 478; League v. Stradley, 68 S. C. 515, 47 S.E. 975. But at the time the plaintiff was injured he was in that part of the premises where he was invited to go. It is impossible, therefore, to conclude either that the plaintiff was at the time of the accident a mere trespasser or even a licensee. He was there upon invitation, and that imposed upon the owner an obligation to have the premises reasonably safe. It may be conceded that he was not under obligation to have the premises in an absolutely safe condition. Distilleries Co. v. Hair, 103 Ky. 196, 44 S.W. 658. He was merely required to exercise ordinary care to keep the premises, or that portion which the plaintiff was invited to enter, in a safe condition. Odell v. Solomon, 99 N.Y. 635, 1 N.E. 408; Marsh v. Minneapolis Brewing Co., 92 Minn. 182, 99 N.W. 630; Sesler v. Rolfe Coal, etc., Co., 51 W.Va. 318, 41 S.E. 216.

The invitation which the defendant extended to the plaintiff was to go to the roof of the tank by means of the ladder, and when he got to the top to take hold upon what he might there find to help him to get upon the roof. To say that the invitation was to take hold of the manhole by the flange or collar, and not by the handle of the manhole cover which directly faced him, seems almost a quibble, and certainly is a proposition to which we cannot give our assent. No court has a right to say that the plaintiff was as a matter of law guilty of negligence when he grasped the handle of the cover in order to get upon the roof. Neither can the court say as matter of law that the premises were in a safe condition, and that a manhole cover, intended to be fastened to the roof by four bolts, was in a safe condition when secured by only one bolt. Neither can we say as a matter of law that the plaintiff was bound to look and see whether the bolts were in place or not....