Pullman's Palace-Car Co. v. Harkins

• Decision Date: 25 May 1893
• Docket Number: 5.
• Citation: 55 F. 932
• Parties: PULLMAN'S PALACE-CAR CO. v. HARKINS.
• Court: U.S. Court of Appeals — Third Circuit

55 F. 932

PULLMAN'S PALACE-CAR CO. v. HARKINS.

No. 5.

United States Court of Appeals, Third Circuit.

May 25, 1893

Allan McCulloh and Geo. H. Bates, for plaintiff in error.

Levi C Bird, (A. E. Sanborn, on the brief,) for defendant in error.

Before ACHESON, Circuit Judge, and BUTLER, District Judge.

ACHESON Circuit Judge.

This was a suit by Mrs. Maggie Harkins against Pullman's Palace-Car Company for the recovery of damages for the death alleged to have been occasioned by the defendant's negligence, of her husband, Michael Harkins, who, while in the employ of the defendant at its works in the city of Wilmington, Del., on the morning of January 8, 1891, was caught by a rapidly revolving shaft, and killed. The action was brought under a statute of Delaware in a state court, but was removed by the defendant into the United States circuit court. Harkins, who was about thirty years of age, and by occupation was a common laborer, inexperienced in the use and operation of machinery, went into the employ of the defendant seven or eight days before his death. He was first set to polishing with pumice stone the exterior of cars, and continued at that work until the morning of January 8th, when he was taken to make one of a crew of seven men, who were engaged, under the directions of William Roach, a carpenter and a foreman in the defendant's employ, in raising heavy joists twenty feet long, which were to be used in the construction of a new second-story floor, and placing them in position on the top of a plate about eighteen feet above the ground floor of the building in which they were working. This plate rested against the inside wall of the building. At the distance of about four feet from the bottom of the plate, and about two feet from the side of the building, was a girder running parallel with the plate, with a bar of railroad iron fastened lengthwise on the top of it. About three feet from the top of the girder and between it and the bottom of the plate, was a revolving iron shaft one and one-half inches in diameter. This shaft was parallel with the plate and girder, and distant from the bottom of the plate about ten inches. It was used to communicate power to five sewing machines in an upper room. The end of the shaft projected from the pulley which operated it about three or four feet. A ladder had been placed against the girder at a distance of about five feet from the end of the shaft, and to the right of it. The company's head carpenter had put the men under the charge of Roach, and Harkins and the others were assigned their places by Roach, and acted under his orders. The accident about to be mentioned happened while the first joist was being put in place on the side of the building where the shafting was. A rope was tied around each end of the joist and, the other end having been pulled up, Roach ascended the ladder followed by Harkins, and they took their stand on the bar of railroad iron, and, with their backs resting against the side of the building, they pulled up by means of the rope their end of the joist. They then turned around their faces to the plate and proceeded to lift the end of the joist to the top of the plate with their hands and shoulders. In doing this they stood on the bar of railroad iron on the top of the girder, between the ladder and the revolving shaft, the two men close together, one on either side of the joist, Harkins being next the shaft, and in close proximity to the end of it. The shaft was revolving at the rate of 170 revolutions a minute. After placing the end of the joist on the top of the plate it was found necessary to shift it around a piece of studding, and move it several inches more to the left, towards the shaft; and in making this change Harkins' clothing was caught by the shaft, and he was thrown against the bottom of the plate, between which and the shaft his body became wedged. He received injuries which resulted in his death in a few moments.

There was no covering or guard of any kind placed at the end of the shaft. It did not appear that any caution was given to Harkins in respect to the shafting. Roach testified that he gave him no warning, and heard none given to him. Roach further testified: 'I do not believe the man saw the shafting at the time he was caught. He might have seen it before. But at the time I do not think the man did, because his attention was drawn to something else,-- drawn to putting this around the studding. ' There was no evidence tending to show that Harkins' attention had ever been called to the shafting; nor did it appear that during the short time he had been in the defendant's employ he had worked near to the shafting, or had any occasion to notice it. It was 16 or 17 feet above the floor, off to the side of the building, and was not used in connection with the work done in that shop. At the time of the accident tinsmiths were working nearly under the shaft, and there was hammering on trucks, and other noises occurring in the shop. The facts, as above narrated, appeared by the uncontradicted evidence. The assignments of error are 31 in number. We will specially notice such of them as were here urged.

The first assignment is to the refusal of the court to sustain the challenge to the array of jurors made by the defendant on the ground that before the venire issued three of the persons named therein had died. It did not, however, appear that in the filling of the wheel or in drawing the names of jurors therefrom there was any want of compliance with the provisions of the act of congress. The rule of court has not been furnished us. Presumably its terms were fulfilled. The act of congress does not fix the number of the panel of jurors to be summoned for the trial of civil causes. The mere fact, then, that three of the persons whose names had been placed in the wheel afterwards die before their names were drawn therefrom was not good ground of challenge to the array. Foust v. Com., 33 Pa.St. 338. Perhaps, for cause shown, the court might have issued a special venire, returnable forthwith, to fill up the panel; but this was not asked.

Assignments third and fourth and from the sixth to the eleventh, inclusive, raise the question whether the testimony of expert witnesses that revolving shafting is dangerous machinery was admissible. Upon a careful consideration of this record we are entirely satisfied that the testimony was properly received. Revolving shafting, it appears, is attended with peculiar and latent danger. It seizes with fatal result the clothing of any person who unconsciously or incautiously comes in contact with it. Usually it is noiseless. To an inexperienced person the motion of a rapidly revolving shaft one and one-half inches in diameter would not be observable unless he should happen to notice the pulley connected with it. One of the witnesses, an experienced machinist, speaks of revolving shafting as 'a very harmless looking thing to an ignorant man. ' These facts are not of common observation and knowledge. We think, then, that upon the question of the peculiarly dangerous character of this particular species of machinery, the case belongs to that class in which persons having special knowledge, experience, and judgment may give their opinions. Ogden v. Parsons, 23 How. 167; Transportation Line v. Hope, 95 U.S. 297;

Spring Co. v. Edgar, 99 U.S. 645; Insurance Co. v. Smith, 124 U.S. 405, 8 S.Ct. 534; Lewis v. Siefert, 116 Pa.St. 628, 11 Atl.Rep. 514; Huizega v. Lumber Co., 51 Mich. 272, 16 N.W. 643; Railway Co. v. Frawley, 110 Ind. 18, 9 N.E. 591.

The assignments last enumerated embrace questions which elicited from the witnesses their opinion upon some other points, but the record does not show that any objection was made to those questions or exception taken to the answers. The general objection noted does not cover those matters, and therefore we are not at liberty to consider them.

The fifth assignment is as follows:

'That in the redirect examination of Joseph Farrell, a witness called on behalf of the plaintiff, the court erred in admitting the following evidence: ' Question. You were asked about this being a place of danger. In reply to that I will ask you if, in your opinion, it was a place of danger. (Objected to by counsel for the defendant. Objection overruled. Exception noted for defendant.) Q. State to the jury what constituted the danger of that place. Answer. It was an open pulley; nothing to cover it; very close to the side of the building; and the man could not help being caught the way he was working there."

Now, it will be perceived that the first of these questions was not answered at all, and, if the objection can be regarded as embracing the second, we think that question was properly allowed, because, on the cross-examination of this witness, he had been asked, 'Did it occur to you at the time that there was danger about that job that he was engaged in?' to which the witness answered, 'There was danger.' The defendant having thus opened up the subject, it was not error to permit the plaintiff, on the re-examination of the witness, to inquire in what the danger consisted.

The assignments from the twelfth to the eighteenth, inclusive are to portions of the charge of the court, and may be treated together. In considering them and the assignments which follow, we must bear in mind that, as to all the material facts of the case, there was no conflict of evidence. It was clearly proved that when Harkins 'went into the employment of the defendant he was ignorant of and unfamiliar with the use and operation of machinery;' and, in view of the indisputable facts, we cannot say that there was anything objectionable in the following statement: 'It does not satisfactorily appear from the proof that,...