Statement of case.

132 228

a165 427

132 228 75 AD 270

WILLIAM G. DAVIDSON, Respondent, v. JOHN M. CORNELL et al., Appellants.

It seems that a servant entering into employment which is hazardous assumes the usual risks of the service and those which are apparent to ordinary observation, and when he accepts or continues in the service, with knowledge of the character of defective structures and of the dangers which may be apprehended, he assumes the hazards incident to the situation.

Where, however, although the defect is apparent, it may require skill and judgment, not possessed by ordinary observers, or by the servant, to give knowledge of hazards which may be apprehended therefrom, he does not assume those hazards.

Defendants were engaged in constructing an elevated railroad; they used for this work a steam engine and apparatus placed upon a platform on wheels, which moved along as the work progressed, upon girders resting upon cross-beams. While the platform was being moved forward the girders on which it rested gave way and the end of the platform fell to the ground. Plaintiff, an employe of defendants, at work upon the platform, where he had been employed for some time previously, was injured. In an action to recover damages plaintiff's evidence tended to show negligence on the part of defendants in not properly bracing the girders laterally, or bolting them to the cross-beams. Held, that while the alleged defects were apparent, yet as plaintiff, although having knowledge thereof, might not have been advised of the dangerous consequences that might result therefrom, and to give knowledge thereof, may have required some skill or judgment not available to him or to an ordinary observer, such consequences were not as matter of law obvious and within the hazards assumed, and the question of plaintiff's contributory negligence was one of fact for the jury; and so, that a motion for a nonsuit was properly denied.

While statements of a person injured, expressive of his present condition, made to a physician for the purpose of treatment, may be proved in his behalf, statements made as to the past, i. e., as to pains which he had suffered or disabilities he had labored under, are not competent, and error in receiving such statements is not cured by testimony on his part that such statements were true.

(Argued February 1, 1892; decided March 22, 1892.)

APPEAL from judgment of the General Term of the City Court of Brooklyn, entered upon an order made June 23, 1890, which affirmed a judgment in favor of the plaintiff entered upon a

Statement of case.

verdict, and also affirmed an order denying a motion for a new trial.

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, who were engaged in the construction of a doubletrack elevated railway on Broadway in the city of Brooklyn. This was done by setting columns upright on either side of the street opposite each other in transverse lines and longitudinally about sixty feet apart, placing upon them iron cross-beams which supported girders, four in each span, extending from one to another of those cross-beams. And for the purpose of hoisting those long girders from the ground to their places in the structure, there was used a steam engine, boiler and other apparatus upon a platform on wheels. This was in the evidence designated as a "traveler." It was about twenty feet in width and about thirty feet in length, on twelve wheels, three resting on each of the four girders, and its weight was from ten to twelve tons. In advance of this traveler, and disconnected from it, were two derricks or cranes, called by the witnesses "grasshoppers," also on wheels. In hoisting a girder, the rope to which the tackle was attached led from it through the top of the crane, thence back to the traveler, where, by the power of the engine, it was wound about a drum, thus raising the girder to its place on the cross-beams. When the four girders, constituting a single span, were thus hoisted and bolted, the grasshoppers were taken onto that span, and the traveler, by means of a rope and tackle attached, fastened by a clamp to one of the inner longitudinal girders some distance in advance of it, and the application of the power of the engine was moved forward onto and near the forward end of the span of girders next in the rear to that on which the grasshoppers rested, there stopped, and by the use of chocks stayed, and another span of girders hoisted to their places. By this method of construction, the work had proceeded nearly one mile, when on February 14, 1888, the traveler, while being so moved, and the girders on which it rested, fell to the ground, causing the injury to the plaintiff of which he complains. He

Statement of case.

was an employe of the defendants upon the traveler, and had been there so engaged for some time. He recovered $2,500. The judgment was affirmed by the General Term.

Further facts are stated in the opinion.

James Troy for appellants. The admission of the conversation between the plaintiff and Dr. Corey was clearly error. (Roche v. B., C. & N. R. R. Co., 105 N. Y. 294; Ryan v. P. M. Co., 57 Hun, 253.) The testimony as to the manner of constructing the Sands street road after the accident on the Broadway road, was improperly admitted. (Johnson v. M. R. Co., 52 Hun, 111; Simpson v. M. R. Co., 17 N. Y. S. R. 68; Dougan v. C. T. Co., 56 N. Y. 8; Band v. Daly, 68 id. 557; Satters v. D. & H. C. Co., 3 Hun, 339; Dale v. D. & W. R. R. Co., 73 N. Y. 472.) It was erroneous for the court to charge the proposition which rendered defendants liable for consequences against which their knowledge, best skill, judgment and experience was unable to guard, and it was erroneous for the court in its charge to exclude the effect of contributory carelessness. (Wright v. N. Y. C. R. R. Co., 25 N. Y. 566; Warner v. E. R. R. Co., 39 id. 468; De Graaf v. N. Y. C. & II. R. R. R. Co., 76 id. 125; Leonard v. Collins, 70 id. 90; Slater v. Jewett, 85 id. 62; De Forest v. Jewett, 88 id. 264; Hussey v. Cooger, 112 id. 614; Hays v. F. S. & G. S. R. R. Co., 97 id. 259; Baulec v. N. Y. & H. R. R. Co., 59 id. 357; Dwight v. G. Ins. Co., 103 id. 341; Lafflin v. B. & S. W. R. R. Co., 106 id. 139; Loftus v. U. F. Co., 84 id. 455; Dougan v. C. T. Co., 56 id. 1; Feltham v. England, L. R. [2 Q. B.] 33; Creegan v. Marston, 126 N. Y. 568; Cullen v. Morton, Id. 1; Butler v. Townshend, Id. 105; Filbert v. D. & H. C. Co., 121 id. 257; Kelly v. F. S. S. R. R. Co., 58 Hun, 93.)

Chas. J. Patterson for respondent. The defendants were guilty of negligence in failing to take the precautions which were usually taken in such work to render the structure safe and secure before subjecting it to the heavy strain of moving the traveler over it. (Pantzar v. T. F. I. M. Co., 99 N. Y.

Statement of case.

368; Nichols v. B. & D. Co., 33 Hun, 137; 117 N. Y. 646; Vredenberg v. N. C. R. R. Co., 14 id. 582; Ford v. Lyons, 41 Hun, 512; Ryan v. Fowler, 24 N. Y. 410; Kranz v. L I. R. R. Co., 123 id. 1; Buckley v. P. H. I. 0. Co., 17 N. Y. S. R. 436; 117 N. Y. 645.) The defendants were also under an obligation to provide a plan for the construction of the roadbed which, if it was faithfully carried out by their employes, would have resulted in the safety of the structure. (Abel v. D. & H. C. Co., 103 N. Y. 581; Sheehan v. N. Y. C. R. R. Co., 91 id. 332; Cambell v. R. R. Co., 35 Hun, 506; Whittaker v. D. & H. C. Co., 126 N. Y. 544; McGovern v. C. V. R. R. Co., 123 id. 280; Bulkley v. P. H. I. O. Co., 17 N. Y. S. R. 436; 117 N. Y. 645.) The plaintiff was not guilty of contributory negligence, nor did he assume the risks which arose from the failure of defendants to perform their duty to make the structure safe for the workmen. (Kain v. Smith, 89 N. Y. 375; Grizzle v. Frost, 3 F. & F. 622.) The statements made by plaintiff to Dr. Corey, in connection with the examination which the latter made of plaintiff's physical condition, were admissible in plaintiff's favor. (Meeham v. M. R. Co., 115 N. Y. 647; Matteson v. N. Y. C. R. R. Co., 35 id. 487; Reed v. N. Y. C. R. R. Co., 45 id. 574; Roche v. B. C. & N. R. R. Co., 105 id. 294; Cleveland v. N. J. S. B. Co., 5 Hun, 523; Fay v. Harlan, 128 Mass. 241; Kent v. Lincoln, 32 Vt. 591; Earl v. Tupper, 45 id. 275; Collins v. Waters, 45 Ill. 485; Towle v. Llake, 48 N. H. 92; State v. Gedicke, 43 N. J. L. 86; Bridge v. Oshkosh, 67 Wis 195; Quaife v. C. N. & W. R. Co., 48 id. 513; Ropers v. Cram, 30 Tex. 195.) The servant does not assume the risk arising from the master's neglect. (Stringham v. Stewart, 100 N. Y. 516; Pantzar v. T. F. I. M. Co., 99 id. 368; 117 id. 645; McGovern v. C. R. R. Co., 123 id. 280.) The charge that if the accident would not have happened but for defendant's negligence, then the fact that negligence of a co-employe helped to bring it about would not be a defense, is good law. (Cone v. D., L. & W. R. R. Co., 81 N. Y. 206; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546.)

Opinion of the Court, per BRADLEY, J.

BRADLEY, J. The immediate cause of the giving way of the girders and the fall of the structure was the subject of some contention upon the evidence.

The plaintiff's counsel contends that it was the result of the negligent failure of the defendants to perform their duty to their employes, in that they did not use the care imposed upon them to provide a reasonably safe structure for the men to work upon, or proper means for its support or movement for the purposes of the service required. If that proposition, in its application to the cause of the calamity in question, had the support of evidence, the charge of negligence on the part of the defendants was sustained. (Ryan v. Fowler, 24 N. Y. 410; Pantzar v. Tilly Foster Mining Co., 99 id. 368; Kranz v. Long Island Ry. Co., 123 id. 1.)

There is no question about the competency of the men to perform the duties devolved upon them in the service. The charge of negligence against the defendants has relation mainly to the system provided for the performance of the work of construction in which the plaintiff was engaged, and is, that there was a want of reasonable care in furnishing precautionary means for the safety of the employes upon it. The structure, called the traveler, containing the engine, boiler and other appliances, was moved on the girders from one crossbeam to another, having the weight of ten to twelve tons, and required a substantial support. In this instance, for some cause, it is said, the girders swayed as the traveler was moving along upon them, and they, with it, fell to the ground. There was no lateral bracing placed between the girders before this weighty structure, called the traveler, was moved over them. Nor were the ends at the bottom bolted. The upper portion of each end of the girders extended beyond the lower portion, and when it projected onto the cross-beams, where it rested on a seat plate and was held by two bolts, the lower portion set up against the beam and its bottom rested upon a bracket, where provision was made for bolting it also, but the bolting there was omitted until after the passage of the traveler over the girders. This was the method of going along with the