Smith v. New York Cent. & H. R. R. Co.

• Decision Date: 20 November 1900
• Citation: 164 N.Y. 491,58 N.E. 655
• Parties: SMITH v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 491

58 N.E. 655

SMITH

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

Nov. 20, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Jacob Smith against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Charles A. Pooley, for appellant.

Morris Cohn, Jr., for respondent.

O'BRIEN, J.

The plaintiff recovered a verdict in this action of $10,800 for injuries, consisting of a broken ankle and various bruises, while engaged in the defendant's service as a blacksmith. The broken ankle is a permanent disability. The others were temporary, and, though painful for a time, have been substantially healed. The accident resulting in the injury occurred on the 28th day of July, 1895. It was caused by the breaking of a ring in a chain which was one of the appliances used in the job upon which the plaintiff was then engaged. There is no substantial dispute as to the cause of the accident, or as to the manner in which it occurred. Both sides state the facts in the same way, and substantially as follows: At Spuyten Duyvil the defendant has a drawbridge over the creek. When vessels are passing, the bridge is hauled up from a horizontal to a perpendicular position, and stands against the towers which contain the appliances for opening it. These towers are about 75 feet high, and are provided with several weights, equal in all to the weight of the bridge, and an engine about half way up, which regulates the raising and lowering of the bridge. These weights are attached to a heavy wire cable, extending from the weights to the further end of the bridge, so that as the bridge raises the weights lower. The wire cable passes through all the weights, and is made fast to the bottom one by splaying out the strands of wire on the underside of the weight, and then pouring in Babbitt metal to fill the hole and hold the metal. The wire cable had become worn by use, and it was determined to replace it with a new one. In order to remove the old cable, the bridge gang had securely blocked up the weights at the top of the tower, and had cut off the cable, leaving the stub end in the lowest weight, and had then rigged a chain about the timber at the top of the tower, and a pulley block and fall attached to the weight, and lowered the weight to the ground. This was done one evening, and after melting out the Babbitt metal the weight was brought again to the tower, and the same rigging which had been used to lower it, and which had remained where it was overnight, was again attached to the weight, and they proceeded to hoist the weight back to its place. The foreman stood at the hoisting engine standing on the ground near the foot of the tower, and as the weight began to lift it became caught under a timber of the tower, so that it had to be dislodged. The foreman called plaintiff to dislodge it and guide the weight from under the timber, and then told him to get upon it, and ride it up, so as to keep it clear from other projecting timbers of the tower. The plaintiff mounted it, and rode up about 30 feet, when the plaintiff says the weight must have caught on a beam, and the ring of the chain at the top of the tower broke, precipitating the plaintiff and the weight to the ground, resulting in the injury complained of. The weight was 3 feet long, 20 inches wide, and 16 inches thick, and in raising it it was so fastened to the fall that the plaintiff could stand upon the flat surface. The gang of men that the plaintiff worked with was called the ‘bridge gang,’ and they had been furnished with every appliance necessary for the performance of the work. The plaintiff was attached to this gang as the blacksmith, in which capacity he had been in defendant's service for five years prior to the accident. The ring in question had been in use about two years. It was made of the best material, by competent and skilled workmen, and had been inspected by competent men several times during the period it was in use, when proper tests were applied to discover any flaw or defect in the iron, and had been examined before use on this occasion. It broke because subjected to an unusual strain, due to the circumstance that the weight was caught under the timbers of the tower.

The court charged the jury that it appeared without dispute in the evidence that the material furnished by the master for the manufacture of the ring, and out of which it was made, was proper material; that there was nothing in its appearance to indicate inefficiency; and that it was made by competent and skilled workmen. There was some proof given by the plaintiff tending to show a concealed defect in the iron of the ring at the place where it broke, due to the presence of dirt or sulphur, or both, within the body of the metal. The weld of the ring made by the workman did not part, but the metal broke in such a manner as to leave part of the weld on either end of the break.

The only question submitted to the jury, as I understand the charge, was whether this concealed defect, if it existed, could have been discovered by the workman who made the ring, in the exercise of ordinary care, and possibly the other question, whether there was proper inspection of the chain and ring while in use. The defendant's counsel at the close of the plaintiff's case moved for a nonsuit on various grounds, and, among others, that there was no...