| S.D.N.Y. | Jan 16, 1893
The evidence does not show anything out of the usual course that should cause the handle of the ash bag to break while it was hoisting up; its weak and insufficient condition must be inferred from the fact that it broke under such circumstances. I cannot regard the general testimony that the bag was sound and sufficient as overcoming that fact.
The cases cited for the claimants seem to me not applicable here. The libelant had no duty or responsibility in the selection, oversight, or charge of the bags used; and the present case is therein distinguished from the whole class of cases to which that of Cregan v. Marston, 126 N.Y. 568" court="NY" date_filed="1891-06-02" href="https://app.midpage.ai/document/cregan-v--marston-3601758?utm_source=webapp" opinion_id="3601758">126 N. Y. 568, 27 N. E. Rep. 952, belongs.
Hor can I find the libelant chargeable with contributory negligence in working beneath the hatch. The falling bag struck him while he was shoveling cinders into another bag, as was customary, and thus bag was nearly filled. It is not credible that he would have been filling a bag under the hatch, unless there had been matter near by that was required to be shoveled into the bag at that place. On re-reading the depositions of the other worlcmen who were near him, I do not find it a reasonable construction of that evidence, that the libelant was notified to keep from under the hatch while a bag was ascending, or in respect to any such contingency as the breaking of the bag handles and the falling of an ascending bag. All the witnesses testify that they never had known any such previous breaking; there was no apprehension of it; and, as it seems to me, there is not the slightest probability that the several notices spoken of to stand from under, had any reference to the bags going up, but solely to the bag, rope and chain coming down, since the evidence shows that the persons above when about to throw them down were in the habit of giving notice to the persons below. It was quite natural, and in the ordinary course, that such calls should be repeated to the libelant by his fellow workmen while he was working under the hatch; and I have no doubt that it was such calls, and such only, that are referred to by the witnesses; and those notices had nothing .to do with such an accident as this, and indicate no neglect by the libelant.
The libelant was severely injured by the fall. The femur was fractured, and to some extent crushed. Shortening of the limb in consequence could not be avoided, notwithstanding the severe treatment applied in the endeavor to diminish the contraction, and the great suffering incident to this treatment. The result is a permanent injury and considerable crippling, disabling the libelant from following his former or any severe occupation, but not such as to interfere materally with many lighter kinds of employment. I award him $2,000, with costs.