94 N.Y. 374 | NY | 1884
The plaintiff was a brakeman in the employ of the defendant company, and was injured by the fall of the bridge at Ashtabula on the 29th of December, 1876. He has recovered a judgment for damages, which is now sought to be reversed, upon the ground that there was no sufficient proof of negligence to carry the case to the jury. The bridge was built of iron, and spanned a gulf leading inland from the lake, and growing narrower as it approached the point of crossing. It was a deck bridge, constructed upon what is known as the Howe truss plan, frequently applied in the building of wooden bridges, but apparently in this one instance alone, made wholly of iron. It was originally constructed in 1864, by the Cleveland, Painesville and Ashtabula Railroad Company, a predecessor of the present defendant. The history of its construction is not encouraging. The superstructure was planned by Amasa Stone, who appears to have had a large experience in the designing and construction of railroad bridges, and at the time was president of the company for which the bridge was to be erected. Stone, however, merely "directed the method of making the plans," "and the method of carrying it out," "in general terms through agents and practical employes." He employed one Tomlinson "to make the design and draft of the structure, and the specifications and details." With reference to his capacity, Stone says only that he had been in his employ for about fifteen years, "more or less in the erection of some bridges," and that he regarded him as competent to execute the work under his, Stone's, "general directions." But Tomlinson evidently bungled his work making the top chords too short, and planning to put in the braces with their webs horizontal *377 instead of vertical; errors which so "annoyed" Stone that he "intimated to him that his resignation would be accepted, and put another man in charge." Who that was and what may have been his capacity we are not informed. These errors had to be corrected. In doing it, the top chords were elongated by inserting between their members thin plates of iron, called shim pieces, held in their places merely by the dead weight of the bridge and the loads upon it; the office of the top chords and braces under them being mainly to resist compression. When the position of the braces was altered, a few more were added, and this change compelled the chipping away of the lugs on the angle blocks in order to give the braces a fair bearing, and then some of them, crowded by the vertical rods, did not rest fully upon the angle blocks. The iron work for the bridge was done by Congdon, whose principal business appears to have been the construction and repair of locomotives, and who held the position of master mechanic.
The superstructure was put together and erected by one Rogers, who was a carpenter. The result which followed was not surprising. The bridge was put in its place and its members united by the aid of bents built up from the ground below, and when the blocks upon them were removed, the bridge sagged below a horizontal line. That occurred twice. The difficulty was sought to be remedied the first time by the lengthening of the top chords, which proved ineffectual, and the second time by the change in the braces. After that the top chords seem to have preserved their camber of two and one-half inches, and the bridge went into use, at first with a single track and later with a double track, and stood for about ten years, until its fall in 1876.
Upon all these questions of original plan and construction experts were examined. Their opinions differed, as is very common in such cases. But upon two things they agreed. Nobody disputed the mechanical axiom that the strength of a bridge is that of its weakest part, nor the rule of prudence that its factor of safety should have been five, when in truth it was only about three; that is, the bridge should have been *378 five times as strong as its breaking weight under expected loads, but was only of about three times that strength. As to other alleged defects — in the yoking of the main braces, so that each I beam acted independently instead of solidly as one; in the insufficiency of the lateral bracing; and the alleged movement or change of position of the braces upon the anchor-blocks — there was much difference of opinion and considerable contradiction in the evidence.
Enough has been said to indicate the questions of fact existing in the case, unless it be true that the defendant company was not responsible for any of the alleged defects because it acquired the bridge by purchase, as a completed and to some extent as a tested structure. In other words, the contention is, that a railroad company acquiring by purchase an additional line already built and in operation, of which an existing bridge forms a part, owes no obligation to its employes running trains over such bridge, except to keep it as good as when it was bought, and has a right without negligence to assume the sufficiency of its original plan and construction. The case relied upon for this doctrine is Devlin v. Smith (
The learned counsel for the appellant insists that the defendant did employ suitable and competent persons to inspect the bridge, who did make the usual and customary examinations, and that there is no dispute about that in the evidence. But it is plain that the inspection described in the proofs as customary is that made by a company which has built its own bridges. In such case it already knows the plan and mode of construction, and is already responsible for the lack of reasonable care in either the design or its execution. The subsequent inspection is directed only to its perfect repair, and to indications of weakness. But where the company does not know either the safety of the plan or the prudence of the construction because it has purchased it completed, and in use, and knows nothing of the skill or want of skill of the builder, an inspection which takes no heed of that inquiry when defects are obvious, and lack of safety is indicated and may be easily ascertained, is not sufficient. The employer must exercise reasonable care in furnishing the servant with the means and implements of his service. That the master does not do when he buys an unsafe and defective bridge, whose obvious deficiencies give warning of possible danger, and sends his servants upon it without inquiry as to the skill of its construction or safety of its design. The servant is entitled to that care whether the master builds the bridge or buys it. The risk and the injury are the same in either case. Of course the test of actual, previous use goes for something. It might justify a continuance of that use until a competent inspection could reasonably be made, but would not justify a neglect when it was made to observe and remedy obvious defects and elements of danger, because existing in the original plan, and an omission to learn by a well-understood process whether in view of its apparent defects it had the ordinary surplus of strength. Upon railroad bridges, every *381 day and almost every hour, the lives of passengers and of employes are trusted. It is not requiring too much to insist that, whether built or purchased, the company shall take reasonable care to know or ascertain the safety of their design and construction, and shall be charged with knowledge of defects which a competent examination would have disclosed.
It is apparent, therefore, that in this case there were questions of fact for a jury. Whether the bridge was in truth defective in particulars, not latent or undiscoverable, but open and obvious to the eye of a skilled and faithful inspector; and whether that inspector did make such an examination as reasonable care required and the company should have exacted in the exercise of such care under the existing circumstances, and in view of such obvious and apparent defects, were questions of fact in the case, and properly submitted to the jury.
The judgment should be affirmed, with costs.
All concur, except ANDREWS, J., who took no part.
Judgment affirmed.