Philadelphia & R. R. Co. v. Berg
| Decision Date | 28 June 1921 |
| Docket Number | 2627. |
| Parties | PHILADELPHIA & R.R. CO. v. BERG. [1] |
| Court | U.S. Court of Appeals — Third Circuit |
William Clarke Mason, of Philadelphia, Pa., for plaintiff in error.
Silas B. Axtell, of New York City (Carl G. Kirsch, of Philadelphia Pa., of counsel), for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This suit was brought by Carl A. Berg, plaintiff below, a seaman on the barge Wiconisco, owned and operated by the Philadelphia & Reading Railway Company, to recover in a common-law action damages for injuries received by him. The barge was lying in New York Harbor. She had a donkey engine below her decks at the bow, over which was a steam winch being operated at the time of the accident to pull another barge alongside of her on the starboard side. The rope leading from the other barge came in at the starboard chock of the Wiconisco and passed through a 14-inch snatchblock to the starboard niggerhead around which it was wound. This snatchblock was of proper size and hooked in an eyebolt attached to the deck 3 feet 10 inches from the starboard drum. The top of the eyebolt, when standing straight up, was about 7 1/2 inches high above the deck. In that position the hook of the block could easily enter the eye, but the eyebolt was bent so far forward that only the end of the hook of the block could enter the eyebolt. This caused a great strain on the hook, the tendency of which was to straighten it out and break it, and this is what happened when a heavy strain came upon it. When the hook broke, something, presumably the block, struck plaintiff's leg, producing a compound fracture, 'crushing and pulverizing both bones for a distance of about 3 inches, the approximate thickness of the block. ' The cause was tried to a jury, which returned a verdict for the plaintiff, and the defendant sued out a writ of error, on which he is before this court.
The several assignments of error raise the following questions:
1. The plaintiff failed to prove the cause of action alleged in his statement.
It is a fundamental principle of universal application, both in law and equity, that the proofs must correspond with the allegations. The purpose of the rule is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue. so that he will not be misled and be surprised at the trial. Jones v Morehead, 68 U.S. (1 Wall.) 155, 165, 17 L.Ed. 662; Nash v. Towne, 72 U.S. (5 Wall.) 689, 698, 18 L.Ed 527. Did the statement in this case comply with that requirement? The plaintiff alleged in the 'sixth' paragraph of the statement that his injuries were received as a result of the negligence of the defendant--
'in failing to provide a block and tackle and the attachments and fittings thereof for use on the donkey engine of a sufficient size, adequate strength and quality for the uses and purposes to which it was necessarily put, and in that no suitable tackle was provided by the said defendant, its agents, servants, and employees, for the carrying on of the work required of this plaintiff on board the said barge.'
The specific defect in the barge or its equipment which, the evidence tends to show, caused the injury complained of, was an eyebolt, which was so bent over that the hook of the block could not enter it, so as to be seated and rest in its normal position. The end only of the hook could enter the eye, and as a consequence when power was applied an unusual leverage and strain was exerted upon the neck or curve of the hook. The defendant contends that the allegations in the statement charging negligence were not sufficiently definite to apprise it of what it had to meet, and accordingly it moved for a nonsuit on this ground, among others. The court overruled the motion, and on motion for a new trial said:
'I think the eyebolt, without which the block and tackle used on the donkey engine could not have been employed in hauling the other barge, is included within the 'attachments and fittings,' and that the evidence that the eyebolt was so bent as not to permit the seating of the hook to its position was sufficiently set out in the allegation of lack of sufficient size and quality.'
If the eyebolt is included within the 'attachments and fittings,' the question arises: Of what are they 'attachments and fittings'? What is the antecedent of the word 'thereof'? The defendant says that 'the allegation in the statement of claim would seem to refer to the failure to furnish proper appliance in the form of a hook, block, and tackle'; that is, the defendant is charged with failing to provide proper 'attachments and fittings' for the block and tackle. The plaintiff contends that the eyebolt is part of the ship, but is included in the equipment that goes with the winch. Grammatically the antecedent of the word 'thereof' is 'block and tackle.' In other words, plaintiff charges that defendant failed to provide a block and tackle having attachments and fittings for use on the donkey engine, etc. Neither the block and tackle nor the attachments, supposed to include the eyebolt, as we understand it, were used literally 'on the donkey engine,' but in connection with it 'for the uses and purposes to which it was necessarily put.'
If this allegation of negligence stood alone, it must be admitted that it is vague and indefinite. But there is a second charge of negligence, which is separate and distinct from the first and additional to it. It is separated from the first by a comma and the conjunction 'and,' which is followed by the phrase 'in that,' whose function is to designate the particular additional negligence charged, which is that 'no suitable tackle was provided by the said defendant * * * for carrying on of the work required of this plaintiff on board the said barge. ' 'Tackle' here is broader than as used in the first allegation, and includes any and all of the equipment or outfit used by the plaintiff in carrying on his work at the time of the accident on the barge. 'Tackle' is defined by the Standard Dictionary as:
'A mechanism of ropes, pulley blocks, hooks, etc., for raising and lowering heavy weights'; 'the instruments collectively for carrying on any specific work or undertaking; gear; tools; outfit; equipment.'
It is defined by the Century Dictionary and Cyclopedia as:
'A mechanism or apparatus in general for applying the power of purchase in manipulation, shifting, raising or lowering objects or materials; the windlass and its appurtenances, as used for hoisting ore from small depths; equipment or gear in general; a combination of appliances.'
Hawkins' Mechanical Dictionary defines 'tackle' as:
'The instruments, taken as a whole, for carrying on a work; tools; outfit; equipment.' 'Tackle,' as used here, included the eyebolt as a part of the equipment used by defendant in carrying on the work of drawing the other barge alongside the Wiconisco at the time of the injury to the plaintiff, and as the defendant had in its possession the hook, eyebolt, and barge, and in its employ the associates of the plaintiff engaged in the work with him, and thus doubtless knew or had the means of knowing the nature of the accident it was called upon to defend, we feel that, while the statement as such was not a model to be followed and was poor pleading, yet the defendant knew what it had to meet and was not surprised at the trial, and, if it was not, the learned trial judge properly refused to direct a verdict. Nash v. Towne, supra; Washington, etc., R. Co. v. Hickey, 166 U.S. 521, 17 Sup.Ct. 661, 41 L.Ed. 1101. Furthermore, if the defendant did not know what particular piece or part of the tackle, then and there used in the work, was meant, it could have ascertained it by a bill of particulars.
2. The plaintiff was guilty of contributory negligence and could not recover.
The questions of whether or not the eyebolt was defective, and if it was, whether or not that defect caused the hook to break, which resulted in the plaintiff's injury, as well as the question of...
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