Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co.
| Decision Date | 15 September 1915 |
| Docket Number | 1358. |
| Parties | WASHINGTON & BERKELEY BRIDGE CO. v. PENNSYLVANIA STEEL CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Forrest W. Brown, of Charlestown, W. Va., and Chas. D. Wagaman, of Hagerstown, Md. (Wagaman & Wagaman, of Hagerstown, Md., and Brown & Brown, of Charlestown, W. Va., on the brief), for plaintiff in error.
Chas J. Faulkner, of Martinsburg, W. Va., and Henry H. Keedy, Jr. of Hagerstown, Md. (Stuart W. Walker, of Martinsburg, W. Va on the brief), for defendant in error.
Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.
On the first trial of this cause the District Court sustained plaintiff's demurrer to the evidence, and judgment was entered accordingly. This court reversed the judgment and remanded the cause for a new trial, on the ground that material evidence offered by the defendant had been excluded. On the second trial the District Judge directed a verdict in favor of the plaintiff for the amount claimed. For convenience we repeat the short statement made when the case was here before.
The Bridge Company, having undertaken to construct a bridge across the Potomac river near Williamsport, Md., contracted with the Steel Company to furnish and put in position the steel girder spans. Under a contract similar in terms Elmore & Hamilton Contracting Company undertook to furnish the material and construct the concrete piers or abutments. Mason D. Pratt, as engineer, agreed with the Bridge Company to supervise, inspect, and take charge of the construction of the bridge as its representative. On December 16, 1908, pier No. 10 fell while the workmen of the Steel Company were placing on it the steel superstructure, killing some of its men and injuring others. Frank L. Benning, one of the workmen who was seriously injured, sued the Steel Company in the circuit court for Washington county, Md., claiming damages for his injuries, on the allegation of negligence that the Steel Company knew or by the exercise of reasonable care could have known that the pier was 'green, weak, defective, and of insufficient strength to carry the weight for which it was intended. ' The Steel Company gave the Bridge Company written notice of the pendency of the suit and of its intention to hold the Bridge Company responsible for any recovery in favor of Benning. Benning recovered judgment for $13,500 against the Steel Company.
After paying the judgment the Steel Company brought this action, alleging that it was the duty of the Bridge Company to see that the piers were safe for the placing of the steel superstructure; that the work was done under the direction of its engineer; that the defendant knew, or by the exercise of reasonable care and caution could have known, that the pier was green, defective, and of insufficient strength to carry the weight; and that nevertheless the defendant authorized and directed the employes of the Steel Company to proceed with the work of placing the steel superstructure on pier 10. On this allegation of negligence the plaintiff asked for judgment against the defendant for the amount of the judgment in favor of Benning, together with interest and costs.
By the former judgment of this court these points were settled: First. The judgment of Benning against the Steel Company was conclusive against the Bridge Company as to matters necessary to Benning's recovery, namely: (a) The negligence of the Steel Company as a proximate cause of the injury in failing to furnish Benning a reasonably safe place to work; (b) the absence of contributory negligence on the part of Benning and of any act of a stranger as an intervening cause of the injury; (c) the correctness of the verdict is an estimate of the damages suffered by Benning.
Second. The judgment in favor of Benning was not conclusive as to matters not necessary to Benning's recovery.
Third. Since the Steel Company could not escape liability to Benning for failure to perform its nondelegable duty of furnishing him a reasonably safe place to work, by showing that it had relied on the Bridge Company to furnish a safe pier, it follows that the judgment in favor of Benning against the Steel Company did not settle the issue of negligence between the Steel Company and the Bridge Company.
Fourth. The Bridge...
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...arise except upon the second trial of the suit of the Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co., reported in (C. C. A.) 226 F. 169. In the case at bar it was conceded that the tort complained of was committed by the agent or servant of the railroad company alone, and that i......
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