Northern Pac. Ry. Co. v. Goss

• Decision Date: 22 February 1913
• Docket Number: 3,792.,3,790
• Citation: 203 F. 904
• Parties: NORTHERN PAC. RY. CO. v. GOSS et al. GOSS & SLEEGER v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F. 904

NORTHERN PAC. RY. CO. v. GOSS et al.

GOSS & SLEEGER v. NORTHERN PAC. RY. CO.

Nos. 3,790, 3,792.

United States Court of Appeals, Eighth Circuit.

February 22, 1913

[Copyrighted Material Omitted]

Goss &amp Sleeger, plaintiffs below, were a firm of contractors and builders of St. Paul, Minn. Sleeger, the more practical member of the firm, had been engaged in this business for a period of 11 or 12 years as superintendent and inspector of construction for others, and as a builder and contractor both independently and as a member of the plaintiff firm. In 1908 defendant below, a railway corporation, through a subsidiary company, was constructing 35 houses at Laurel, Mont., the contract for which was let to the plaintiffs. While the latter were engaged upon this work they learned that the railway company was about to construct two icehouses and a yard office at the same place. At their desire, plans and specifications were submitted to them, and they were awarded the contract over other competitive bidders. The contract price for the buildings and their appurtenances was $6,585. Each icehouse was to be 216 feet long, 36 feet wide, and 26 feet high to the top of the plate; trusses to support the boards of the roof were to be placed four feet apart for the entire length of the building, the bottom chord of the truss to be nailed securely to the top plate; the studding for the sides was to be 2 inches by 12 inches; the outside wall was to be covered with 1-inch by 6-inch drop siding, and the inside walls were to be sheathed with 1-inch by 10-inch boards. Thus, as will be seen, the building when completed was to be a box like structure of very simple character consisting of four walls with a roof covering binding the whole together. In erecting the walls it was found necessary to use braces to hold them in position as the work progressed. These braces consisted of boards 2 inches by 8 inches in dimension, nailed to the studding of the wall on the inside about 3 feet from the top, and extending diagonally downward toward the center of the building, where they were nailed to stakes. As the sheathing was put on, by which the walls were made heavier, it was found necessary to strengthen each brace by the addition of a second plank or board nailed to the side wall near the ground, and extending diagonally toward the center of the building. Neither this nor any other system of bracing was prescribed by the plans and specifications. It was adopted as a usual and ordinary method of safeguarding work in progress of construction until such time as the permanent features of the structure should furnish the necessary or contemplated stability.

The contract was made September 23, 1908, and by the 28th of November following the four walls of the first icehouse had been completed with the exception of 10 feet square of drop siding on the north side and 33 of the 54 roof trusses had been placed. These trusses were connected and in some degree supported by temporary strips or boards nailed across them; but the roof boards, which would add homogeneity to the entire roof, had not been nailed on. The plans contemplated a plank walk 3 feet wide to be constructed directly under the ridge of the roof on the bottom chord; this walk had not yet been constructed. Also it was provided that rods of 1-inch wrought iron should bind the foundation sills together at the corners; these supporting rods had not yet been placed. The walls having been erected, and being supported in position by the braces heretofore described, plaintiffs began the work of putting on the trusses-- starting at the west end of the building. The trusses were built on the ground inside of the building, and each truss, weighing 900 pounds, was hoisted to its position at the top of the building by means of a gin pole. While constructing these trusses, or at least before raising them to the top of the walls, plaintiffs removed the bracing heretofore described, and the braces thus removed were not replaced. If the trusses had been constructed and raised to position outside the building, the removal of these braces would have been unnecessary; but to construct and raise within the building was deemed more convenient and economical. The braces, crossing each other and anchored on the ground at a point midway between the walls, obstructed the building and raising of the trusses by the method adopted by the contractors. Consequently it was deemed necessary to remove such braces-- from west to east-- as the trusses were built and raised. It will thus be seen that when 33 trusses, counting from the west end, had been raised and set in place, all that portion of the walls immediately under them, or approximately 3/5 of the length of the building, was without bracing, except that afforded by the trusses themselves, and the temporary boards nailed upon them. It would have been both possible and practicable to have restored these braces after each truss had been raised to position, or other means of bracing could have been employed. Neither method was adopted by the contractors. On this 28th day of November, the wind was blowing at the rate of 12 to 15 miles an hour from the southwest. The building suddenly showed signs of collapsing, and before steps could be taken to prevent this the entire structure fell toward the north and east. One workman, named Johnson, was killed outright, several others were injured, and a large amount of material was wrecked and destroyed.

The plaintiffs then requested of the defendant that for the reconstruction of this icehouse, and the building of the second house, additional braces, known as knee-braces, and a bulkhead or cross-partition, should be added as parts of the permanent structure. To this the defendant acceded. Plaintiffs then completed their contract, and the buildings were turned over and accepted. At the completion of the contract there was due plaintiffs on the contract price and for extra work $2,220.84. This claim accrued March 30, 1909, and defendant tendered payment, provided plaintiffs would sign a receipt declaring 'every claim of every kind and description arising from said contract in our favor and against said Northern Pacific Railway Company, its successors and assigns, arising out of or connected with said contract, or its obligations, fully paid, satisfied and discharged. ' This plaintiffs refused to do.

On or about April 1, 1909, the administrator of the estate of Joseph E. Johnson, plaintiffs' employe who was killed by the collapse of the building, brought suit against Goss & Sleeger in the district court of Ramsey county, Minn., to recover damages for the death, alleging gross negligence and carelessness on the part of Goss & Sleeger in removing the braces hereinbefore referred to; that the removal of these braces rendered the building unsafe, and was the direct cause of the accident. This was denied by Goss & Sleeger, who charged in their answer that deceased came to his death by reason of his own carelessness and negligence. The jury returned a verdict for the plaintiff in the sum of $4,000, and judgment for this, together with interest and costs, was entered in the sum of $4,121.03. Goss & Sleeger paid this judgment, and incurred additional expenses, in the defense of said action, in the sum of $1,194.20. Before trial they notified the Northern Pacific Railway Company to appear and defend the action; to which the Railway Company, disclaiming responsibility for the negligence charged, did not respond.

It is admitted that after the accident the plaintiffs below paid on account of injuries to the other workmen the sum of $457 in full settlement thereof.

It further appears, practically without dispute, that plaintiffs' actual outlay for labor, services, and material necessary to the reconstruction of the collapsed building to the stage of completion at the time of collapse was $967.81.

April 19, 1910, Goss & Sleeger brought suit against the railway company upon four causes of action: The first, to recover the sum of $5,315.23, on account of the judgment and other expenses which they had been compelled to pay because of the death of the workman Johnson; the second, for the recovery of $457, with interest, paid in settlement of claims of other injured workmen; the third, for the recovery (as finally asserted) of $967.81, with interest, for their outlay in the reconstruction of the collapsed building; the fourth, for the recovery of the balance due on contract price and for extra work, with interest from the date it was due and payable. The first three causes of action are founded upon the contention that the damages laid therein were wholly due to the defects and insufficiency of the plans and specifications tendered by the railway company, and that the latter is liable upon the implied warranty that such plans and specifications were in all respects safe, adequate, and sufficient for the purposes designed.

In support of the first cause of action counsel for complainants offered the record of the evidence taken in the case of Johnson's administrator against Goss & Sleeger. This was excluded. Plaintiffs next sought to prove by two witnesses that Johnson left a family surviving him, and of what it consisted.

Neither witness proved competent to testify. The court directed the jury to find for the defendant upon this cause of action.

The second and third causes of action were submitted to the jury. As bearing upon the issues joined therein experts introduced by plaintiffs testified, in substance, that the plans used were inadequate for buildings of sufficient stability to withstand such strains from wind, or otherwise, as might reasonably be anticipated. Other experts, produced on behalf of the defendant, testified directly to the...