Payne v. Bucher

• Decision Date: 03 February 1921
• Docket Number: 2619.
• Citation: 270 F. 38
• Parties: PAYNE, Director General of Railroads, v. BUCHER.
• Court: U.S. Court of Appeals — Third Circuit

270 F. 38

PAYNE, Director General of Railroads, v. BUCHER.

No. 2619.

United States Court of Appeals, Third Circuit.

February 3, 1921

Frederic B. Scott, of New York City, for plaintiff in error.

Edward J. McCrossin and Harry R. Cooper, both of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

This writ brings here for review a judgment recovered under the Federal Employers' Liability Act (Comp. St. Secs 8657-8665). The sole question, arising from the court's refusal of the defendant's motion for a directed verdict is, whether there was any evidence of negligence on the part of the defendant to submit to the jury. Shortly stated, the plaintiff's case was as follows:

Bucher was an experienced employe of the Director General of Railroads. His grade was that of checker or boss of a small gang whose duties consisted in moving freight from place to place in the Terminal Yards of the Delaware, Lackawanna &amp Western Railroad Company at Hoboken, New Jersey. For the performance of his work the defendant had supplied him with appliances. These included tackle and a steam crane, whose crew was under his direction. On the day in question, Bucher was engaged in moving from one place to another iron buckets weighing two and one-half tons. He had at his disposal heavy metal hooks of two kinds: One, Vulcan hooks, curved in shape each of which, when used in pairs, is attached to a separate cable suspended from block and fall hanging well above, and depend for their hold upon the object to which they are attached on the continuous upward strain of the connecting cables; the other, box hooks, each composed of two straight arms positioned at right angles one to the other. These hooks, being used in pairs, are not fastened to separate cables but are held together at the top by one cable passing through eyes in their upper arms, so that when placed together they form a rectangle, or box, as their name denotes, with the result that the greater the vertical strain from the cable the greater is the horizontal contraction of the hooks and the better their hold.

To do the work at hand Bucher selected Vulcan hooks against the caution of one of his men that hooks of that kind would not hold the buckets. Bucher, nevertheless, directed this employe to 'hook them up' with these hooks. This the man did by placing their curving points under the bucket's flanges, which were but two and one-half inches wide. Four buckets thus hooked were safely moved. On raising the fifth and moving it toward the place at which it was to be put, it fell upon Bucher and killed him.

Bucher's administratrix brought this suit. The verdict in her favor puts out of view any question of contributory negligence by Bucher in selecting hooks ill-adapted to the task he was performing, and resolves the case, as presented by this writ of error, to the question whether there was evidence of negligence on the part of the defendant which in some measure brought about the accident.

From the case made by the plaintiff, we have had trouble in finding just what duty the defendant owed the decedent which he violated. Turning to the plaintiff's complaint, we surmise that she too had the same difficulty, for in order certainly to cover the case by sufficient allegations she variously charged the defendant with negligence in placing her intestate at work with incompetent and inexperienced help; in setting him at a task with which he was not familiar and in failing to give him proper instructions; in supplying him with defective appliances, and with appliances not adapted to the work; in failing to warn him of the perils incident to the work and appliances; in permitting another employe, who was more experienced with such work and...