Shelton v. City of Memphis
| Decision Date | 23 March 1949 |
| Citation | 222 S.W.2d 681 |
| Parties | SHELTON v. CITY OF MEMPHIS. |
| Court | Tennessee Supreme Court |
Harsh, Pierce, Cochran & Rickey, Memphis, for plaintiff in error.
Frank Gianotti, Jr., Memphis, Charles M. Crump, Memphis, for defendant in error.
James Henry Davis, a common laborer in the employ of the City of Memphis, was fatally injured when he was struck by the heavy steel boom of a crane, which fell while the crane was being operated by another servant of the City. His children brought this suit for damages for the wrongful death of their father. There was a directed verdict for the defendant and the plaintiffs appealed in error. A number of interesting questions have been ably presented and elaborately briefed by counsel for the respective parties. We have found especially helpful the form and discriminating particularity with which counsel have briefed for our assistance the propositions of fact and law upon which they rely.
The declaration is in five counts. The first charged the doctrine of res ipsa loquitur. The second charged negligence of the defendant in failing to make a proper inspection of a machine. The third charged the failure of the defendant to provide an operator of sufficient skill and experience to properly operate the crane. The fourth charged that the crane was not suited to the particular work for which it was being used at the time, and that such use constituted negligence. The fifth charged that the crane was an inherently dangerous machine and the defendant failed to give the deceased adequate warning and instructions as to the proper precautions to be taken in working near it.
The verdict as to the third count was directed at the conclusion of the plaintiff's evidence, and no error is assigned on that action. The verdict as to the other counts was directed at the conclusion of all the evidence, and the errors assigned go to that ruling.
The crane was owned by the Hawkins Equipment Company and had been rented from that concern by the City for use by its construction crew in the repair and reconditioning of a bridge across Cypress Creek on Bellevue Street in Memphis. In the course of this work it became necessary to pull out two bulkhead pilings which were embedded in the ground to support the fill at the end of the bridges. The crane was to be used for this purpose. The accident occurred on the first attempt to remove one of these pilings.
The crane was a new one, of a truck-type known as the Insley K-14. A platform on the truck contained the apparatus by means of which the crane was operated by a man sitting in a cab on the platform. The boom was 30 to 40 feet in length and extended outward from the platform of the truck. The crane was operated by means of three cables. One held the boom up, another raised and lowered a hook attached to its end, and a third opened and closed a clam shell when that device was being used, which was not the case on the occassion in question.
In removing piling, the boom was not raised or lowered but held stationary at an angle of about 45°. The piling was pulled upward by means of a "lifting line" or cable which ran from the mechanism on the truck down the length of the boom. It had a hook or shackle bolt on the end of it to be attached to a chain wrapped around the piling. The cable which held the boom up was about one-half inch in diameter. It was anchored by means of a wedge inserted in a tapered socket welded to the side of the operator's cable. The cable was encased in the socket in the form of a horseshoe loop enclosing a tapered wedge. The end of the cable extended a short distance from the socket and was loose. As a result of this arrangement, when force was exerted on the cable by reason of the downward pull on the boom in the lifting process, the wedge tightened in the socket, thus making the cable fast, if, but only if, the wedge was of the proper size so that it did not pull through the socket. Before entering the socket, however, the cable passed around an iron bar to the rear of the point where the socket was located, so that the small end of the socket and the wedge therein were pointed in a direction opposite that in which the boom extended.
On the occasion in question there were two pilings to be pulled. These were 12 to 18 inches in diameter and firmly embedded in the bottom of a ditch or creek over which the bridge crossed. The crane was stationed at or near the end of the bridge, with the boom extending at an angle across one corner of it. Just prior to the accident one of the crew standing in the bottom of the ditch had wrapped a chain around the piling which was to be pulled out and to this had attached the hook on the end of the lifting cable. This employee was out of the view of the crane operator and another employee was stationed at point where he could signal the operator to begin the lifting operation. Upon this signal being given, the operator put the crane to work and "got about two pulls on it when the boom fell". As said, the boom extended from a truck at about a 45° angle. The force applied in the attempt to pull the piling by means of the lifting cable exerted a downward pressure on the boom, which in turn put a strain on the holding cable anchored by means of the wedge in the socket as above described. Following the accident a wedge bearing the imprint of a cable was found about 70 feet from the crane in the direction in which the small end of the socket pointed. Upon being tested, it was found that this wedge was too small and as a result would slip through the socket when sufficient force was exerted upon the holding cable, which a wedge of proper size would not do. Another wedge was found inside the cab. When tried in the socket, it did not slip through and was used to reassemble the crane after the accident, although there appears to have been no further attempt to pull the particular pilings with this machine.
As said, the crane was new, having been purchased from the manufacturer by the Hawkins Equipment Company but a short time before the accident. It had been assembled by the owner before it was turned over to the City and was apparently ready for use. Whether the owner knew it was to be used for pulling piling does not appear.
On the day before the accident the defendant had used the crane to remove dirt with a clam shell, without discovering any defect in the mechanism. But, as stated, no prior attempt had been made to use it to pull out embedded piling, and no investigation or inspection was made by the City to discover whether the crane was assembled in a manner that would permit it to be used for that purpose with safety.
It was the defendant's contention that as a result of the force applied in attempting to remove the piling, the wedge was pulled through the socket and the holding cable thus released from its anchorage, allowing the boom to fall; that the failure of the anchorage device to function was due to the fact that the wedge was too small and that this was a latent defect which could not have been discovered by a reasonable inspection.
The plaintiffs introduced two witnesses, officials of the Hawkins Equipment Company which owned the crane, and their testimony was that this type of crane was not designed and constructed and was not suitable for that purpose; that in any case where pilings were pulled by that type of crane extra precautions should be taken. Another expert testifying for the plaintiff said that the smallest size crane which should be used to pull pilings was one of a yard capacity; (the crane in question was but a half yard capacity); that if a crane of half yard capacity were used for that purpose, it should be staked down to the ground and a clamp placed upon the end of the cable below the anchor...
To continue reading
Request your trial