Thomas Vincent, Appellant, v. John E. Alden, Respondent

Thomas Vincent, Appellant, v. John E. Alden, Respondent. ITegligence — injury to an employee, removing a girder from a car, by reason of the breaking of a chain by which the same was being moved. In an action brought to recover damages for personal injuries it appeared that the defendant’s superintendent was supervising the unloading of iron girders from railroad cars; that the first girder was unloaded in safety and that,, during the unloading of the second girder, the superintendent sent the plaintiff with a crowbar to keep the girder from catching on the girder under it, and that, while holding the bar, the chain supporting the girder parted, allowing the girder to fall upon one end of the bar, the other end of which was¡ as a consequence thereof, thrown up and struck the plaintiff. There was evidence tending to show that the chain in question was a half-inch chain, and that a safe load for such a chain is one and three-quarters tons, and that the girders each weighed eight tons, and that the chain was so worn that some of the links were reduced one-third. One of the plaintiff’s witnesses testified that the defendant’s superintendent asked him if he would loan him a, chain; that he told him that he could lend him a chain but that he did not consider it a good one; that the superintendent went away without taking the ■ chain, .but subsequently came back and said he would have to use it. Evidence was also given that one of the defendant’s employees • called the attention of the superintendent to the condition of the chain and told him .that he had better put a rope on the girder; that a rope was put on the girder which- . was first unloaded, but that, during the operation, it was so cut" that it could not be'used again. It did not appear that the defendant furnished any chains and appliances for the moving of the girders other than those that were used by the superintendent, nor was there any evidence that the plaintiff examined the chain or had any knowledge in regard to its safety. Held, that the questions of the plaintiff’s contributory negligence and of the defendant’s negligence were. questions of fact which should have been submitted to the jury. Appeal by the plaintiff, Thomas Vincent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 26th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Clinton Trial Term. The defendant is engaged in designing and building iron and steel bridges. In November, 1897, he was about to erect a bridge over the Big Chazy river at Perry’s Mills, N. T. On the morning of the 21st of November, 1897, he commenced the work of unloading iron girders for said bridge from platform cars standing on the track of the Ogdensburgli and Laké Champlain railroad over said river The defendant was not personally present at the work, but the same was in charge of one Merrill, his superintendent. The girders were about fifty-four feet long.by five feet three inches wide, and each weighed a little over eight tons. The three girders that were being unloaded were placed one upon the other, extending over two platform cars. Shoe plates were attached to the- girders and extended about four inches beyond the face of the girders for a short distance from the end on each side. The cars were, standing east and west,, and the girders were being unloaded from the north side of said cars. The first girder resting upon the cars had the shoe' plate to the north; the second girder had the shoe plate to the south. The girders were unloaded by putting a chain around each end of the same and connecting said chains with tackle to the south of the car. Iron rails were placed in -the stake holes of the cars and extended down to the ground. The girders were.pushed over the side of the cars so that the north side thereof would rest upon rails, and the inner or south side was lifted and held by the chains and said tackle, and in that way the girders were lowered and entirely removed from the cars. The top or third girder was unloaded without accident. They commenced to unload the second girder, and the shoe plate of the girder that was being removed was about to catch on the shoe plate of the girder under it, when the superintendent sent the plaintiff with a bar to the west end of the girder and told him to watch that the shoe did not catch on the angle of the girder. The plaintiff put one end of the bar on the shoe of the lower girder and held the other end of the bar in his hand, for the purpose of easing the girder that was being removed over the shoe of the lower girder and to prevent it from catching thereon. While standing in this position the chain on the west end of the girder broke, and the girder fell upon the bar and it dropped from his hand upon his foot. The girder was then about three-quarters of the way over the side of the car, and it slid, and so caught upon one end of the bar as to cause the bar to fly up, striking the plaintiff in the face, and the injuries complained of were thus inflicted. This action was brought by the plaintiff and was tried ait the Clinton Trial Term in December, 1898, and resulted in a verdict of $900 for the plaintiff. The judgment entered upon such verdict was reversed by this court, and the opinion will be found in 45 Appellate Division, 627. The action was again tried at the Clinton Trial Term in November, 1900, and at the close of the plaintiff’s evidence defendant’s motion for a nonsuit was granted. Luden L. Shedden, for the appellant. Thomas B. Ootter, for the respondent. [MAJORITY — Chase, J".:] Chase, J".: The record in the case now before us is entirely different from the record before this court on the former appeal. The. motion for a nonsuit was granted at the close of the plaintiff’s testimony, and the evidence of the defendant’s witnesses referred to in the opinion on the first appeal herein is not in this record, and the plaintiff denies that he testified on the former trial as follows: “If I had placed the crowbar one end on the shoe and the other end on the girder in the proper position and held it the shoe would not have caught and the girder would slid off. * * * That was what I intended to do.” And there is no evidence to show that he did so testify. There is no evidence now before us to show that the defendant furnished chains and appliances for the removal of the girders other than those that were used by his superintendent. The plaintiff produced as a witness one Crippen, who testified, without contradiction, as follows : “ I know Mr. Merrill, the superintendent of the defendant. He came to the- car on the side track about half-past eight or nine' o’clock and I at. that time loaned him a .chain.' He said he was short a chain or so. He said they must have .been stolen or lost on the way. That he would have to have a chain to unload those girders and I loaned him a chain. I told him I could lend him a chain but I did not consider it a good one. It w.as one we foúnd on the dock at Rouses Point. *' * * He did not take it the first time he talked with me. He went away and said if it was not a good chain he did not want to use it, and then-he came back and said he Would have to use it. He had no other. It was an old chain. The chain was never returned to me.” A safe load for a half-inch chain is shown to' be one and three-quarters tons. The chain so borrowed was a half-inch chain and it had been worn so that some of the links were reduced one-third. It was used in the removal of the first girder, and is the chain that was broken at the time of the accident. One of the defendant’s ■employees, a witness herein, says that he thought that the chain would not hold the girder, and so stated to another employee who ■called the superintendent’s attention to it, and told the superintendent that he had better put a rope on the girder. A rope was put on the girder that was first unloaded, but it was so cut in going over the edge of the girder that it could not be used again. When they started to remove the second girder the old chain was put around the west end of such girder instead of the east end of the girder as had heen done in the removal of the first girder. At the time of the accident there were a few short pieces of chain about the cars. There is no evidence in the record to show that such chains were sufficient, if connected, to encircle the girder, and no evidence to show that there were appliances for the purpose of connecting such chains if their combined length had been sufficient to encircle the girder. The pieces of the rope that were cut in removing the first girder were not long enough to be used for the second girder, and the other pieces of rope supplied by the defendant were used in connection with the tackle. There is some evidence that there was a coil of rope in a box on a car on the side track. Even if such rope had been furnished by the defendant the evidence is to the effect that if used the same would have been cut by grinding against the edge of the girders According to the plaintiff’s evidence, as it appears from this record, he went to the west end of the girder in obedience to the instructions of the superintendent, and proceeded to perform the work-he was assigned to do, and the suggestion that the plaintiff should have put one end of his bar upon the shoe of the lower girder and let the other end rest upon the girder itself and there held it, instead of holding one end suspended in his hand, is not accompanied by any evidence whatever that such a course would have been the proper or ordinary course, or was more safe for the plaintiff than the course he did pursue. There is no evidence that the plaintiff examined the chains or ropes or had any knowledge in regard to them or as to the'safety of any of the appliances used in removing the girders. A mere statement of the facts as shown in the present record is sufficient without argument to show that the question of plaintiff’s contributory negligence as well as the question of the defendant’s negligence were questions of fact that should have been submitted to the jury. The arguments of the defendant before us are very largely based upon statements that do not now appear in the record. Judgment reversed on the law and facts and new trial granted, with costs to appellant to abide the event. All concurred. Judgment reversed on the law and facts and new trial granted, with costs to appellant to abide event. Sic.