195 F. 468 | 2d Cir. | 1912
This case is sui generis in the informality of its presentation, but as neither party has insisted upon any technical objection we will consider the questions argued as properly before us for consideration.
The District Judge has found that Staudinger was rightfully on the Sunbeam in the discharge of his duties, and was entitled to timely warning before the stone was swung over his head at the end of the boom. We think the evidence warranted this finding and the failure to give the notice was negligence.
O’Brien Bros, recognized this duty at the trial and attempted to show that it had been fulfilled. The engineer engaged in hoisting the stone stated that he and the master of the scow shouted a warning to Staudinger, but on cross-examination he gave the following testimony. .
“Q. After tbe warning was given did yon notice Staudinger running? ' A. No; he didn’t have time to run. * * * He seemed to make an effort to step back, but it was too late. Q.' So that the warning was given almost instantly before the accident? A. About; yes, sir.”
When it is remembered that, it was raining at the time and that the deceased had an umbrella over his head; the duty to give him timely warning appears still more imperative. There was other testimony that no warning of any kind was given, but a warning given so late that -it allowed the person in danger no chance to escape was, of course, wholly insufficient.
The1 work being done was dangerous and the deceased, who was rightfully on the scow, was entitled to timely warning that a heavy stone was to swing over his head. Whether such notice was given was a question of fact, and -the decision of the trial judge is entitled to the same weight as the verdict of a jury in similar circumstances.
The District Judge also found that O’Brien Bros, failed to prove
The decree should be affirmed with interest and costs.
WARD, Circuit Judge, dissents.