Pennsylvania Steel Co. v. Jacobsen

• Decision Date: 15 November 1907
• Docket Number: 30.
• Parties: PENNSYLVANIA STEEL CO. v. JACOBSEN.
• Court: U.S. Court of Appeals — Second Circuit

157 F. 656

PENNSYLVANIA STEEL CO. v. JACOBSEN.

No. 30.

United States Court of Appeals, Second Circuit.

November 15, 1907

Battle & Marshall (Roger B. Wood, of counsel), for plaintiff in error.

G. W Bristol (Woolsey Carmalt, of counsel), for defendant in error.

Before COXE, WARD, and NOYES, Circuit Judges.

NOYES Circuit Judge.

This action was brought to recover damages for the death of the plaintiff's intestate, Carl J. Jacobsen, alleged to have been caused by the negligence of the defendant, his employer. The plaintiff had a verdict for $5,000 damages and the defendant brought this writ of error. The grounds of error which the defendant now urges are in substance: (1) That the court erred in denying defendant's motion for a direction of the verdict in its favor because the plaintiff (a) had failed to show any negligence on the part of the defendant (b) had shown that the plaintiff's intestate assumed the risk; and (c) had failed to show freedom from contributory negligence on the part of such intestate. (2) That the theory of liability embodied in the charge to the jury was wrong and required more than a reasonable degree of care from the defendant.

In determining the question raised by the first claim of error-- whether the evidence warranted a verdict for the plaintiff-- we are not called upon to weigh testimony. We may simply ascertain the facts most favorable to the plaintiff, which from the evidence, the jury were justified in finding as the basis of their verdict. When these facts are ascertained, we then apply legal principles to determine whether a verdict thereon could be rendered for the plaintiff. In this case there was evidence from which the jury could have found these facts: (1) On and prior to April 9, 1903, the plaintiff's intestate, Carl J. Jacobsen, was employed by the defendant as a laborer upon the Williamsburgh Bridge at New York, then in process of construction, by the defendant as contractor. (2) Jacobsen's particular duty was to supply water and kindling wood for the engine upon a traveler or movable crane used in the work of building the bridge. (3) This traveler consisted of two trucks, with wheels, which ran on a temporary railroad track on top of the bridge structure. Upon the trucks was a wooden platform 22 feet wide and 23 feet long, with a tower used to support the derricks, of which there were two. There were also a shanty, a boiler, an engine, and certain material on the platform. When the derricks were in use, the traveler was usually blocked up to take the strain off the wheels. The wooden blocks used for this purpose were generally kept in the shanty. The kindling wood which Jacobsen supplied was hauled up at the rear end of the traveler. The platform of the traveler was about 60 feet from the ground. (4) On the occasion of the accident, Jacobsen had been cutting kindling wood on the ground underneath the traveler. Just before the accident, he moved a few feet, and was under the rear end of the platform of the traveler when struck. Underneath the traveler was the most convenient place for Jacobsen's work. While underneath the front end of the platform where the derricks were used nuts, bolts and other objects often fell. Nothing had fallen at the rear end, except coal when it was being hoisted up. No special danger was to be apprehended from falling objects where Jacobsen was working under conditions as they existed up to a few days before the accident. (5) While Jacobsen was working, as aforesaid, one of the wooden blocks used to block up the traveler fell from the bridge structure, striking and killing him. The falling of the block came about in this manner: The framing of the trucks of the traveler was originally built too light. A short time before the accident trouble developed, and it became necessary to put different trucks under the traveler. A carpenter's gang-- not the regular traveler's gang-- were employed to...