Grant v. National Railway Spring Co.

86 A.D. 593 | N.Y. App. Div. | 1903

J.:

■ The theory of plaintiff’s counsel, in support of his claim that the defendant is liable for plaintiff’s injuries, appears to be that the light "went out at a critical moment when he and Conley were in the act of placing the bar of steel upon the pile, so that they could not see where to place it properly, and consequently they, without fault on their part, placed it in such a position upon the pile as to topple it over and cause the injuries, and that if the light had been burning the plaintiff could have seen and avoided the falling pile. It- is urged that under these circumstances the questions of the defendant’s negligence and of plaintiff’s contributory negligence were for the jury to determine.

When, in the plaintiff’s testimony^ he first mentioned.the manner in .which he received his injuries, he said : “I was putting this bar of steel down and just turned tó go away when the pile I was making came over and caught me on the left leg about half way between the knee and ankle; my leg wasn’t cut, but it jammed me up against the pile of steel opposite to the pile I was under.”

Afterwards he said: “ It was dark just about the time we started to lay that bar down on the top of the pile; we thought, we put that bar on top of the pile; * * * the moment wé were laying this last bar on the pile the light went out; I was caught j I didn’t notice anything after that; I didn’t notice that the electric light was out after I was caught, but I remember at the particular moment that I was placing that last bar there that' tlié light went out.” .

There was a considerable conflict in the evidence as to the character of the light and as' to when, if at all, it went out, as related to the time of the injury, so that if the liability of the defendant depends upon these questions they were- undoubtedly for the jury to determine. But I do not think, upon the proof here, it does so depend.

. We may assume for the purpose of this appeal that the light was defective to the knowledge of the defendant, and that because of this defect it went out, as the plaintiff claims, just as he was in the act of placing the bar on the pile, and yet I think the case falls far short of establishing the defendant’s liability.

The injuries were received by the fall of the pile which the plaintiff and his coemployee—Conley — were making. The plaintiff must be assumed to have brought to that work ordinary skill in performing it. Indeed he testified: “ I claim to be a man of more than ordinary intelligence; I have worked in factories all my life. I have worked around machinery more or less all my life.”

If the pile fell because of its being improperly piled, it was either the fault of the plaintiff or of his coemployee, or of both of them, and the defendant, under well-settled rules of law, would not be liable.

The plaintiff testified as to the manner of piling and with reference to the falling of the pile : “ I don’t know whether those piles slipped from the top ; I don’t know whether they slid from the top or bulged out from the middle; we had it piled up in about four piles; I couldn’t say how many strips there were in a pile; we didn’t have over six to eight piles ; I am not positive that it was just four ; I couldn’t say whether it was five, it wasn’t six; whether it was more than three I don’t know; whether it was 4 or 5; I don’t know; wepiled these about or three-feet high ; I don’t know which it was, near .three feet I think; that is what I think it is : * * * W.e didn’t pile one pile up first and then pile up the next; we piled the four piles. all up at the same time ; we started at the back end next to the rack ; we. put probably three or four there, then started the next so that these four piles Conley and I piled up as if it was one pile,.’that is, all at the same time.”

Another witness for the plaintiff testified that “ they .piled those strips up as you would take boards and pile one on top of another,” Another witness for the plaintiff testified that “ they piled them I should judge three feet or three feet and a half high; the steel was four pieces. in width; * * "x" all. the four piles tipped over ; they all slid into one mass.”

Still another witness for the plaintiff, who had piled considerable steel like this, said on cross-examination: “ In my judgment it wasn’t safe to pile it more than a foot high; nobody had told me how high to pile it; as far as the height was concerned I exercised my own judgment.”

Evidence was given as to the character and condition of the ground upon which the plaintiff was directed to pile the steel, the claim being that it was soft and uneven and, therefore, an improper place to pile such heavy material, but the court rightly, as we think, refused-to submit that question to the jury as the plaintiff had worked upon the place in question four hours in daylight and knew as much of the-situation as the defendant and ought to have known of its safety or lack of it.

There was no evidence given as to the propriety of piling these narrow strips of steel from two and a half to three and a half feet high without any cross pieces to support or bind them, and every reasonable inference to be drawn from the evidence as to the manner of piling, in the absence of any evidence as to the cause of the fall, is that the fall was caused by defective piling, for which the defendant was not liable.

There :is absolutely no evidence connecting the fall with the defective light or with the absence of light as a proximate cause, so I think there was no evidence upon which the court could properly have submitted the question of the defendant’s negligence to the jury.

The jury upon the evidence as it stands have been left to guess or conjecture that the fall might • have been caused in putting the last rail On the pile in some way in the absence of light as to cause the pile to topple over when the pile might have fallen in the same way because of its own inherent defects when the last rail was put on, even if the light had been perfect and was burning properly. The jury have also been left to guess that the plaintiff might have escaped from the falling pile if the light had been burning.

This verdict is wholly the result of speculation and conjecture on the part of the jury, and it is not based upon any evidence of defendant’s negligence that resulted in plaintiff’s injuries. The judgment entered thereon should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.