Snare & Triest Co. v. Friedman

• Decision Date: 15 February 1909
• Docket Number: 49.
• Citation: 169 F. 1
• Parties: SNARE & TRIEST CO. v. FRIEDMAN.
• Court: U.S. Court of Appeals — Third Circuit

169 F. 1

SNARE & TRIEST CO. v. FRIEDMAN.

No. 49.

United States Court of Appeals, Third Circuit.

February 15, 1909

[Copyrighted Material Omitted]

H. M Hitchings, for plaintiff in error.

Gilbert Collins, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and ARCHBALD, District judge.

GRAY Circuit Judge.

The case brought before us by this writ of error, is as follows:

Suit was brought in the court below by the defendant in error (hereinafter called the plaintiff), against the plaintiff in error (hereinafter called the defendant), to recover for personal injuries received through the alleged negligence of the said defendant. At the time of the occurrences in question, certain persons, trading under the firm name of Colgate & Co., were the owners of lands, and the buildings thereon erected, in the city of Jersey City, in the state of New Jersey, bordering on a public street or highway of said city. The lands and buildings were located on the south side of the street, and were used and occupied by the firm for manufacturing purposes. At the time of the acts complained of, the firm was engaged in constructing an addition to its buildings, and for that purpose had contracts with the defendant, by which the defendant, among other things, was to furnish and set in place the iron and steel work for the foundation of certain tanks, including cast-iron columns and girders. The defendant, in the course of its performance of this contract, and in the furnishing, delivery, and setting in place of the cast-iron columns and girders, caused to be piled and placed certain iron girders, or I-beams, upon the sidewalk in front of the premises of the said Colgate & Co. for use, from time to time, in the prosecution of its said work. These beams were 22 feet long, 15 inches high, with flanges 4 inches wide, and weighed about 1,000 pounds each. They were, before and at the time of the accident, stored in two piles, one next to the building line and the other next to the curb line of the street, and parallel therewith, leaving a passageway on the sidewalk between the two piles. It was shown in the evidence that they could be piled so as to be measurably secure, by placing a row of three beams upon their sides, and superimposing two others so as to lock with those under them, with their flanges, and one on top locking with the two underneath; or, by placing four or five in the bottom row, and building up in the same manner. The sidewalk in front of these premises was asphalted. There was no curbing, but the asphalt pavement sloped into the street, forming a concave gutter, so that teams could drive from the street across the sidewalk into the premises in question.

There was some testimony in the court below, touching an alleged transfer of the original contract by the defendant to another construction company, and some controversy consequent thereupon, as to whether this company was responsible for the piling of these beams upon the sidewalk. The court below, however, correctly construed the written agreement in question as not in terms transferring the contract, and properly left to the jury the question, whether such other company was in charge of the work, or was merely in what it did the agent of the defendant. As to this, the jury has found in favor of the plaintiff, and the point may therefore be dismissed from further consideration. For the purposes of the case before us, therefore, the defendant is to be considered as an independent contractor, subject to whatever responsibilities attach to it, as such, in the prosecution of its work.

There was evidence tending to show that, at the time of the accident in question, an I-beam on the pile next to the street had become dislocated from its parallel position with the other beams, and was in a position diagonally along the side of the pile, edgeways or nearly edgeways, instead of flat, with the upper end on a piece of plank or joist, and the lower end near the bottom of the pile. It was, at all events, in a state of unstable equilibrium. Several little girls were playing about the pile, some skating on the asphalt pavement and two or more were on the pile, when the plaintiff, Fannie Friedman, 4 1/2 years old, ran across the street to where the other girls, including her two older sisters, were playing. The testimony tends to show that she sat down on the lower end of the beam just described, and that another girl just then jumped across the upper end of the beam onto the plank on which that end was resting, causing the beam to fall over, crushing the foot of the plaintiff beneath it.

The testimony was somewhat confusing as to the exact position of the I-beam, and as to just how the accident occurred, but there can be no doubt that the beam was in a position dangerous to all who came near it, and especially to those who came in contact with it. There was evidence tending to show that this beam was in this situation, or something like it, for two or more days prior to the accident; that it was noticed by, or should have been noticed by, defendant's servants, and that it had remained in this dangerous position long enough to affect defendant with notice. There was no testimony that directly accounted for this dislocation of the beam in question. There was testimony tending to show that these piles had been in place for several weeks, and that a short time before the accident, the number of beams on the pile was less than formerly. How this particular beam came into its dangerous position, was a matter, therefore, of conjecture. Whether it had been dislocated from its original position by taking other beams from the pile, for use in the structure under erection, or had been partly moved for the purpose of such use, and then temporarily abandoned, it is not necessary here to determine, even if it were capable of being determined. The evidence as to its dangerous situation, and its existence in that situation for two or more days before the accident, was properly submitted to the jury, and there can be no objection to the charge of the court in that regard.

The charge of negligence principally insisted upon at the trial was, not for the original careless piling of the beams, as was charged in the declaration, but for the maintaining of the pile in the dangerous condition testified to after notice of such condition, or after a long enough time had elapsed for notice to be presumed. After the conclusion of the evidence, the learned judge of the court below permitted an amendment to the plaintiff's declaration, charging the defendant with negligence in the latter respect. The defendant excepted to this action of the court and assigned the same as error. We may dispose of it in passing, however, by saying that the action of the court appears to us to have been the exercise of a sound discretion, and not to have transcended the liberal rules in regard to amendments to pleadings which obtain in the practical administration of justice. There was also testimony admitted over the objection of the defendant, tending to show that the asphalt pavement on the north side of the street, near the Colgate factory and these piles, was much resorted to by children of the neighborhood for roller skating and other plays, and that these piles were attractive to such children, as evidenced by the fact that they constantly played thereon, to the knowledge of the defendant. Under the laws of New Jersey, Colgate & Co. were the owners of the fee of the street to its center, subject to the public easement for purposes of travel, and it is not disputed that either by state law or municipal ordinance, they, or their subcontractor by their permission, had the right to a reasonable use of the sidewalk, temporarily, for the storing of material to be used in building, or repair of buildings, on their adjoining property.

The learned judge of the court below instructed the jury, in effect, that not only was the defendant bound to exercise ordinary care in originally piling these girders upon the street, but also in maintaining the piles so that they might not endanger the safety of those lawfully using the sidewalk, and that, if from the weight of the evidence the jury found that the girders so piled on the sidewalk were, at the time of the accident, calculated to tempt and attract little children accustomed to play on the street, to use them for play or rest, and that this was known to the defendant, then, if one of the beams, though originally secure in the pile, became dislocated and was allowed to remain in the dangerous position described in the testimony, for a time long enough to presume notice to the defendant, it became responsible for the damage caused to the plaintiff, who was without fault. A verdict was found for the plaintiff, and upon the judgment entered thereon, this writ of error was sued out.

The assignments of error are very numerous, but they are for the most part covered by the few principal contentions urged at the bar, upon the determination of which the case must turn. The first contention to be noticed is, that the court erred in striking out before the trial, and against the objection of the defendant, the plea of the statute of limitations, and in holding that it was not available to the plaintiff in error. Brief notice only is required of defendant's point, that it had an absolute right to interpose said plea and have it disposed of when it was sought to be availed of during the trial, and that the action of the court, in striking it out before trial, was contrary to the rules of practice and procedure in New Jersey.

We think, however, that the granting of the motion to strike out was a matter within the discretion of the court below. All the facts bearing upon the...