Schenkemeyer v. Tusek

• Decision Date: 19 January 1914
• Docket Number: 1,784.
• Citation: 210 F. 151
• Parties: SCHENKEMEYER v. TUSEK.
• Court: U.S. Court of Appeals — Third Circuit

210 F. 151

SCHENKEMEYER v. TUSEK.

No. 1,784.

United States Court of Appeals, Third Circuit.

January 19, 1914

Forest & Percy Allen Rose, of Johnstown, Pa., and George E. Reynolds and Louis Caplan, both of Pittsburgh, Pa., for plaintiff in error.

John F Gloeckner and S. G. Porter, both of Pittsburgh, Pa., for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below, Paul Tusek, the plaintiff, brought suit and recovered a verdict against Charles Schenkemeyer, a citizen of Pennsylvania, for damages sustained by him while in defendant's employ. On entry of judgment thereon defendant sued out this writ.

Turning first to the refusal of defendant's request for binding instructions, we find the evidence tended to show these facts: Schenkemeyer had a contract for erecting a building and had piled on the building lot sawed stone from which sills, lintels, etc., were to be cut. He had for several weeks employed some stonecutters, who split or cut from such piled stone such parts as were required, carried them to benches a short distance away, and there dressed them to size. Tusek, who was also a stonecutter, worked with these men eight or nine days before his injury, and pursued the same course. While so cutting off a piece of sawed stone preparatory to removing it to his bench, a number of stones fell from a pile and crushed his right arm so as to necessitate amputation. The charge of negligence was that the stones 'had been piled in a careless, reckless, and negligent manner without binders, one stone on top of the other, * * * the stones lying lengthwise, * * * and with large stones about 7'x7"x7" standing on edge and leaning against the piles.' And it was averred that:

'By reason of the faulty and negligent construction of one of these piles of stone, and by reason of the large and heavy stones leaning against it, the place in which plaintiff was required to work was dangerous and unsafe, and plaintiff's safety imperiled, and further for the same reasons, one of these piles of stone fell onto the plaintiff and injured him.'

The stones were piled by Louis Schenkemeyer, a son of defendant who was in charge of the work, and Valentine Gabriel, a stonecutter. The testimony of the former is that all the sawed stones were placed in a single pile about 25 feet long and on sloping ground, one end of the pile being 3 feet lower than the other; and that the stones were laid crossways of the slope upon two rows of sleepers 4 inches square and about 8 feet long. Upon each of the stones in the lower course a tier of six stones, unconnected by any cross-stick or binder, was carried to the height of the pile, which was 42 inches. On end and leaning against the end of the pile were stones 11 inches square and 5 1/2 feet long. His testimony, and that of several others, was that it was not customary in piling to put strips between courses of stone. The testimony of Gabriel, who was called by the plaintiff, differed from the foregoing, in that he said the stone was placed in separate piles, and the pile that fell on Tusek was about 4 feet high and 3 feet wide; that it stood by itself and was 18 inches or 2 feet from the stone on which Tusek was working when injured. Against this pile leaned on end four stones, two against the end 11 inches square and from 6 1/2 to 7 feet long; the other two against the side about 5 by 10 and from 5 to 5 1/2 feet long. He testified: That it was customary to place strips between the stones, and that they were used 'to have the pile safe together; tight; and to keep the edge of the stone all right. ' That he called Schenkemeyer's attention to his not putting in strips and advised laying on the ground the pieces which were stood on end against the pile, but was told they were in a hurry to unload the car. It suffices to say, without detailing it, that there was evidence substantiating in some particulars both witnesses. Witnesses for the plaintiff testified that it was customary, and those for the defendant that it was not, to put strips or binders between the layers of stone. Coming down to the day of the injury, the proof is that on that morning, pursuant to orders given by Louis Schenkemeyer the night before, Gabriel, Tusek, and Friedman, another stonecutter, went to a pile to get some designated lots of stone. They in turn, and from time to time in the manner they had theretofore followed, split or cut and removed all the stones of that pile except the last one. It was too heavy for Tusek to move to his bench. Going between it and the adjoining pile, testified to by Gabriel, he measured off the desired length and, placing his pitching tool or chisel on the stone, struck two blows. As he struck the second blow, one of the large stones which was leaning against the next and last adjoining tier of six superimposed stones...