Westinghouse Elec. & Mfg. Co. v. Heimlich

• Decision Date: 14 January 1904
• Docket Number: 1,209.
• Citation: 127 F. 92
• Parties: WESTINGHOUSE ELECTRIC & MFG. CO. v. HEIMLICH.
• Court: U.S. Court of Appeals — Sixth Circuit

127 F. 92

WESTINGHOUSE ELECTRIC & MFG. CO. v. HEIMLICH.

No. 1,209.

United States Court of Appeals, Sixth Circuit.

January 14, 1904

Horace Andrews, for plaintiff in error.

Samuel Heimlich, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

The intestate of the defendant was a laborer in the foundry department of the shops of the plaintiff in error, and came to his death through the breaking of a crane chain while engaged in the operation of the crane. There was evidence tending to show that the chain which broke was, in size and apparent strength, such as is ordinarily used by foundrymen in connection with cranes gauged to 30 tons. There was also evidence tending to show that this chain was bought from reputable chainmakers, who represented the chian as of the highest quality of iron, handmade, and tested. The evidence tended to show that the chain was externally sound, and that it had been from time to time subjected to careful visual inspection without the discovery of any defect or other indication of weakness. There was evidence tending to show that the chain had been in use but three months, and that the cause of its breaking was crystallization, occurring probably in course of its manufacture.

There was no evidence that the chain, after purchase, had been subjected to any test as to its tensile strength, other than that incident to its use before the occasion of its breaking. Neither was there evidence that it was customary for the users of such chains to test them other than for defects discoverable by visual inspection. There was conflicting evidence as to the load at the time of breaking, and as to certain alleged jerking movements in lowering the crane, and as to the cause and effect of straining the chain by such irregular movement. There was a judgment for the defendant in error.

The jury was instructed, among other things, as follows:

'A test of the strength of the chain is the amount of weight which it will sustain, and that is accomplished by putting such a weight upon the chain. Now, whether that is done by some method such as merely suspending a weight to the chain for the sole purpose of the test, or whether it is done in the course of work, by which an equal weight was put upon the chain, there is a test of the chain in either case because in either case the trial has been had as to whether the chain will support a given weight. It need not be a formal test in the sense that the chain is taken out for the express purpose of testing it, and putting it into some device calculated to put a strain upon it, and measure the strain, but any method, if the defendant company, previous to this action, had given themselves an opportunity to be informed as to whether this chain was defective or an ordinarily good chain, such as it appeared to be, by putting sufficient weight upon the chain, either in the way of lifting a sufficiently heavy cope to test it, or by lifting iron piled up to test it, if you should find from the evidence that it had pursued either course as a means of informing itself of the existence or nonexistence of defects in the chain, then your verdict should be for the defendant. If they omitted such appropriate, reasonable test, by putting weights of some kind on the chain, which would, if the chain was defective, disclose that defect by a breakage, or, if the chain were good, would disclose that fact, if they omitted that, then your verdict should be for the plaintiff.'

To which the court added:

'And in that connection I will say that they are also to consider the idea of factors of safety; that, in ascertaining what is the safe limit of weight to put upon a chain, it must be tested by a higher weight than was expected to be put upon it. What difference of weight should be used in that test is what is called a factor of safety, and that is left to your judgment as jurors.'

In an earlier part of the charge the jury had been distinctly told that the defendants could not rely upon the reputation and representations of the makers of the chain, and that a mere visual inspection of the chain would not take the place of some test calculated to develop weakness due to latent defects.

The master is not a guarantor of the safety of machinery or implements furnished his employes, and is only bound to use ordinary care, diligence and skill for the purpose of protecting them, and it is not negligence to use and employ such machinery or implements as the experience of trade and manufacture sanction as reasonably safe. Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Washington Rd. Co. v. McDade, 135 U.S. 554, 10 Sup.Ct. 1044, 34 L.Ed. 235; Union Pacific Ry. Co. v. Daniels, 152 U.S. 684, 689, 14 Sup.Ct. 756, 38 L.Ed. 597, Texas, etc. Ry. Co. v. Barrett, 166 U.S. 617, 17 Sup.Ct. 707, 41 L.Ed. 1136; Shearman & Redfield on Negligence (5th Ed.) Sec. 195.

The duty of examining for a defect thus discoverable grows out of the fact that the master is chargeable with knowledge of any defect in an appliance furnished his servant which was discoverable by the exercise of reasonable care. Thus the master was held negligent for failing to discover a crack in a car wheel, which, though filled with dirt and grease, was discoverable by careful examination. Union Pacific Ry. Co. v. Daniels, cited above.

The defect in this chain was one which could not have been discovered by anything short of a test which would develop its existence by putting upon it a greater strain than the chain so defective would stand. In other words, in order to determine whether the iron was in fact crystallized, it was necessary to break or cut into each link, for it was altogether possible that if one link was made from crystallized iron that others were also defective. This defect might not exist to the same extent in every link. Was it, then, the duty of the plaintiff in error to subject this chain to test for latent defects before allowing it to be used, or might the purchasers rely upon the reputation of the maker, and his representation as to the quality of the material used, and as to the results of the manufacturer's...