No. 1,208 | 7th Cir. | Jan 2, 1906
The injury to defendant in error was caused by a large electric crane striking him while delivering his tools to an assistant while seated on the T-rail of the track on which the crane ran. At the time of the accident, the defendant in error was in the employ of an independent contractor, and was employed in the placing of steam heating apparatus in the shop belonging to the plaintiff in error.
The T-rail on which the accident took place, was about thirty feet above the floor. There were two of them, about seventy feet apart, running the whole length of the building, three hundred feet. The cranes traveling these rails were used to carry iron and other articles for plaintiff in error from one place to another in the shop, having no connection with the independent work on which defendant in error was engaged. The only fact tending to show defendant in error’s right to be on the rail was his habit, known to the men running the crane, of going to and from his work over the rails— that being the only way available to reach his work; as also the fact that the engineer in charge of the crane that struck him knew of this habit, and had been told as late as the morning of the accident, to look out for him.
On the day of the accident, defendant in error having gotten some tools, walked down the track to the place where he was about to work, one of the cranes following him. “The first thing I did,” said the defendant in error in his testimony, “when I got back with the tools, was to hand them down to my helper. I was standing on the girder with one foot on each side of the track on top, and I sat down on my heels and handed him down the tools. As I leaned over Kadd (the helper) took the tools away from me, and just as I went to get up, the crane struck me and knocked me down.” The crane that struck him was not the one that had followed him, but one coming from the opposite direction. This crane he had seen several hundred feet away, before he had sat down, but it was then standing still.
The engineer of the crane that struck him tells of the accident as follows:
*300 “On the trip on which Mr. Reilley [defendant In error] was hurt, I started' my crane from where I picked up the bucket of sand, probably forty feet from the east end of the shop [fully one hundred and fifty feet from whereReilley was sitting]. When I started the crane, I did not look ahead and down the tracks. I hoisted up the bucket of sand until I thought I had it up-high enough, and then I started to travel down the track, running the carriage over in such a position so that it would clear the obstructions along thefioor. I had probably traveled one hundred and twenty feet, when I felt that the crane had struck something, and immediately heard Reilley call for me-to stop.”
The evidence that went to the jury to show that Reilley had license-to use the track, was in our judgment sufficient to justify such finding. That being the case, the remaining questions were; Was the-engineer negligent? Was Reilley free from negligence? Had the-engineer of the crane looked ahead, the accident would not have-occurred. Had Reilley kept his eye upon the crane, as he saw it at. rest, the accident would not have occurred. The accident occurred because, in the interval of a minute or two, between the starting of' the crane and the striking of Reilley, neither one was looking out for the other.
The failure of the engineer to look constantly ahead justified, ini our judgment, the finding of the jury that the engineer was guilty of’ negligence. The engineer of a crane, running upon a track upon-which others are licensed to walk or work, is under obligation to-keep a lookout that is without interruption. His position in that, respect is like that of an engineer of a locomotive- in respect to persons licensed to be upon the railway tracks.
The jury was justified, too, in our judgment, in finding that in. not keeping his eye constantly upon the crane, Reilley was not guilty of contributory negligence. Reilley’s work at the moment was to-hand down the tools. This required that he should give his attention to that performance. He was under no obligation to anticipate that the crane at rest would start up without warning, or that the engineer would not be on the lookout, or would run him down without warning. We are not prepared to hold, as a matter of law, that for the minute or two during which he did not look, Reilley was not exercising reasonable prudence—the prudence that a reasonably careful man in a like position -would have exercised.
The assignments of error that relate to instructions given and instructions refused, present no reversible error. And as none of the assignments present legal questions that are not elementary we deem it useless—the judgment of the lower court being affirmed—to review them in detail.
The judgment of the Circuit Court is affirmed.