Quigley v. Levering

• Decision Date: 30 April 1901
• Citation: 167 N.Y. 58,60 N.E. 276
• Parties: QUIGLEY v. LEVERING et al.
• Court: New York Court of Appeals Court of Appeals

167 N.Y. 58

60 N.E. 276

QUIGLEY

v.LEVERING et al.

Court of Appeals of New York.

April 30, 1901.

Appeal from supreme court, appellate division, First department.

Action by Mary Quigley, administratrix of Michael J. Quigley, against William M. Levering and others. From a judgment of the appellate division (63 N. Y. Supp. 1059), affirming a judgment for defendants entered on a verdict and an order denying a new trial, plaintiff appeals. Affirmed.Philo P. Safford, Charles Donohue, and Thomas G. Frost, for appellant.

Eugene Lamb Richards, Jr., and Arnold W. Sherman, for respondents.

VANN, J.

This action was brought to recover damages resulting from the death of the plaintiff's intestate, which was caused, as it is alleged, by the negligence of the defendants. In 1896 the defendants, as copartners, carried on a manufacturing business in the city of New York, and the plaintiff's intestate was employed by them as an ordinary laborer about the works. The room in which he worked was about 60 feet long north and south by 50 feet wide east and west. In the center was a machine known as a ‘punch,’ which was used for the purpose of making holes in heavy iron plates. Over this punch, about 16 feet from the floor, was a traveler, consisting of three sections, each about 20 feet long, which, when joined together, made a continuous track, with sides projecting from the base, upon which a trolley ran. The trolley had chains hanging down, which were used to attach the plates, for the purpose of transportation, to the punch. Each section of the traveler could be disconnected from the others, and moved east or west 8 or 10 feet, where it could be united to another traveler and form a part thereof. When the three sections were together the trolley could not run off, but when one of the sections was gone the trolley, if put in motion, would run off as soon as it reached the space which had been occupied by the absent section. As a safeguard against this danger the defendant Levering, a mechanical engineer of long experience, had invented an automatic drop bar, one of which was attached to either end of each section. It consisted of a series of levers so arranged that when the sections were all together the drop bar would be up in the air and the trolley could be moved without difficulty, but when one of the sections was gone the drop bar was forced down by a counterweight and the trolley could not be moved. This device was new, having been used in the shop in question for about six months, and for about eight months in another shop belonging to the defendants in Philadelphia, but not elsewhere. Although in constant use, it had never failed to work prior to the time when Quigley, the decedent, lost his life, except on one occasion, which was not reported to the defendants or their superintendent. What then caused it to fail did not appear, but no defect in design, materials, or construction was shown. Quigley was at work in the shop when the automatic device was first used, and he continued working there, with an interval when he was absent, until the accident happened. On the 16th of December, 1896, Quigley and one Jones were working about the punch as assistants to Mr. Berterman, who operated the punch and sometimes helped work the trolley. The trolley had not been used for two hours, as they had been moving plates by means of a vehicle, called a ‘buggy,’ which ran upon wheels resting upon the floor of the shop. After a while, in order to move a heavy plate, Berterman called for the trolley, which at the time was hanging over the punch. Not long before the north section had been moved over to the west, and the drop bar on the middle section was up, which showed that it was not working. The north end of the middle section of the traveler was almost over their heads, and the drop bar, being up, was a conspicuous object in plain sight, so that if they had looked up they could have seen that the trolley would fall if set in motion towards them. They were in a hurry and did not look up, but Jones, when the trolley was called for, seized one of the depending chains and gave a quicker and heavier pull than usual towards the place where he and Quigley were standing, which was right under the space occupied by the north section when in line. As the drop bar was up and did not work, the trolley, weighing over 50 pounds, ran off, fell down upon Quigley, who was getting a plate ready to attach, and inflicted injuries which soon caused his death. At this time, 10 or 12 feet away, the north section was in plain sight, with the chains, supporting a load of iron, hanging down to within 2 feet of the floor, all of which they could see without looking up. The drop bar did not work, because the oil on the sliding plates had become gummy, as the weather was cold, and some dust had settled upon a surface an inch and a quarter long. No dust could reach this spot when the sections were together, as they had been for three weeks prior to the day of the accident, during which period they had not been oiled. Immediately after the accident the apparatus was examined and found in good order, and a ladder, put up to make the examination, as it struck the traveler, caused the drop bar to fall. Sometimes the drop bar fell when the sections were in line, but this did no harm, except to require replacement before the trolley could be moved. It was the duty of Williams, the foreman, to take general charge of the shop and men, and to see that the machinery was kept in good order and the work properly done. He sometimes cleaned and oiled the automatic device, but it was generally done by the workmen; suitable materials being furnished for the purpose. The duty of Bruggeman, the superintendent, was to see that the foreman carried out the orders sent from the office. Scherveman was the outside superintendent, whose duties were not fully described. All the men, including Quigley, had been instructed to look up to the drop bar, to ‘watch for that thing up there,’ and see that everything was all right before using the trolley. Every week each man was paid by money placed in an envelope on which was printed the following: ‘Notice. All employés are cautioned to exercise all possible care...