Heiser v. Cincinnati Abattoir Co.

The plaintiff had been for three years in the employ of the defendant as a “beef lugger.” Defendant’s place of business was at 531 West street. A row of warehouses extends along the street. In front is a platform about three feet high and five feet deep. Upon railroad tracks laid in the streets freight cars are delivered to the warehouses from time to time. Between the edge of the platform and the side of the car the space was 10 or 12 feet. There was an overhead rail on which a pulley with a hook attachment ran. When a beef car came in, a skid was extended! from the car to a horse placed in the street. Then the quarters were attached to the hook on the overhead trolley, and, so hung, were shoved across the street and along the platform to the appropriate entrance into the warehouse. At certain times the cars contained other kinds of provisions, hams, etc. When this was the case, two skids were used. Each skid consisted of four 1% inch planks each a foot wide, fastened under each end by cross-pieces, making a total width of 4 feet, and 6% feet in length. The end of one of these skids rested on the top of the horse which was four inches wide, giving it two inches of support, the other on the platform in front of the warehouse where a cleat was nailed to keep it from slipping. The other skid resting with one end on the horse projected into the car. At this end in the car was placed a loose piece of plank so that the wheels of the truck could the more easily run up on the gangplank or skid. This truck was oblong, with open planked sides, running on two side wheels with a movable wheel at each end. Into it were put the hams and other provisions. It would then be shoved and pulled across this gangway to the platform, and thence to the proper opening in the warehouse.

On the morning in question the gangplank had! been laid as indicated by the members of plaintiff’s gang, of which he was in charge, and the plaintiff and two other men were engaged in unloading the car. They had been at work unloading from 5 to 7 o’clock in the morning. The plaintiff testified:

“I was in front on the platform of the ear when the accident happened. I was wheeling the truck, and two men, Mr. Foote and Mr. Whitty, were behind pushing. When we started pushing the car out on the platform, the right-hand wheel of the truck struck the corner of the plank and pushed them a little bit sideways, about an inch, and then stopped, and the two men then pushed the truck back, and gave it a push, and struck the plank in front, and pushed it off; and the plank and I went down and the truck after. * * * At that time I was only steering the car. Before I had gone upon this platform to do work, I had made an inspection of it. I saw that it was put up like always. X saw that the nails and cleat were put in.”

It affirmatively appeared, without contradiction, that these skids which were being used at the time of the occurrence had been used for at least three or four years by the defendant’s employés without accident, and that similar skids had been in use for similar purposes by other concerns in that locality engaged in similar lines of business. The court submitted to the jury the question whether the defendant furnished the plaintiff with a proper runway, whether he himself was guilty of negligence contributing to his injury, and whether he Understood and assumed the risks incident to the use of these skids. Defendant contends that plaintiff failed to show that the accident was brought about by any negligence on the part of defendant, but that, on the other hand, the negligence, if any, which caused the plaintiff’s injury, was that of himself and his fellow workmen, that the placing and fastening of the horse and planks, constituting the materials for this runway, were details of the work devolving upon the men themselves and not upon the master, that the case does not come within the provisions of the employer’s liability act, and the question whether or not the plaintiff assumed the risk, which was perfectly open, obvious, and apparent to him, was one of law, and that for these reasons the complaint should have been dismissed, and, further, that the court erred in its rulings in the admission of evidence over the defendant’s objection and exception and also in charging the jury, and that the damages awarded are excessive.

The defendant claims that the evidence of the plaintiff and his witnesses shows without dispute that his injury resulted, not from any negligent act of a superintendent, as no superintendent or other person higher in authority than the plaintiff himself was present on the morning of his injury, but the accident was caused by the slipping of the skid either because it was not originally set properly and securely fastened in place, or because of the negligent manner in which it was afterwards used by the men themselves; and reliance is placed upon Nappa v. Erie R. R., 195 N. Y. 176 , 88 N. E. 30 , 21 L. R. A. (N. S.) 96 , for the proposition that these skids so placed from time to time as they were needed by the employes themselves did not constitute a way under the provisions of the employer’s liability act. The plaintiff cites Trentacoste v. Cronin, 132 App. Div. 907 , 116 N. Y. Supp. 755 , and Knezevich v. Bush Terminal Co., 127 App. Div. 54 , 111 N. Y. Supp. 255 . In neither of those cases did it appear that the men themselves had erected the runways as temporary and movable aids in the performance of their work, but in each case the runways were erected without their participation, had an element of permanency, and were erected by the master and furnished in place for the work in hand.

In Nappa v. Erie R. R., 195 N. Y. 176 , 88 N. E. 30 , 21 L. R. A. (N. S.) 96 , the action was brought under the employer’s liability act. Plaintiff was a freight handler, and had been engaged in that occupation at the place where he was injured for five years or more. The

“The plaintiff just prior to the accident had absented himself to get a drink of water. On returning he found the skid in position, and went to work immediately, with one foot on the platform and the other on the skid. Very soon thereafter, while handling a barrel of sugar, the skid slipped, and plaintiff’s leg was caught between the barrel and the platform, inflicting the injury of which complaint is made. The plaintiff testified that he did not observe, what was the fact, that the cleat was not in position when the accident happened. Considerable evidence was introduced as to who was responsible for the failure to place the cleat in position during the brief absence of the plaintiff. In the view we take of the legal situation, this question is immaterial. * * * Subdivision 1, § 1, c. 600, Laws 1902. ‘By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition.’ It is argued by the counsel for defendant that section 1, subd. 1, Employer’s Liability Act, under which this action is brought, is merely declaratory of the common law in this state. The counsel for plaintiff states in his brief that it- may be conceded that the employer’s liability act of this state makes no change in the common law with respect to the physical conditions or acts which create a liability or out of which a liability may arise. It follows that the cases in this and other jurisdictions prior to the enactment of the employer’s liability act are applicable as to the liability of the defendant. The question of law presented upon the undisputed facts is as to whether the moving of the skid from car to car and securing it with the cleat was a detail of the work or a part of the ways, works, or machinery under the employer’s liability act * * . * We are of opinion that the skid and cleat, moved by the workmen from car to car, were no part of the ways, works, or machinery under the employer’s liability act, nor of the safe place to work at common law. They were a part of the regular tools and appliances furnished to the freight handlers, and, if one of them was injured by the negligent act. of another in using the same, it would be one of the risks of the employment, imposing no liability upon the master. Lord Esher, Master of the Rolls, in Willots v. Watt & Co. [1892] L. R. 2 Q. B. 92, 98, thus defines the word ‘way’' as'used in the -English employer’s liability act: ‘The course which a work-

The court then goes on to cite Hudson v. Ocean Steam-Ship Co. of Savannah, 110 N. Y. 625 , 17 N. E. 342 , and McCampbell v. Cunard Steam Ship Co., 144 N. Y. 552 , 39 N. E. 637 , both skid cases, and proceeded:

‘•The principle established by these authorities and others that might be cited is not embraced within or affected by the employer’s liability act. The defendant was entitled to have the court charge, as his counsel in substance requested, that the use of the skid and cleat was a .detail of the work and not covered by the employer’s liability act.”

If this definition of the word “way” is settled, then the skids here used were not a way but an appliance, and come within that class of simple and ordinary appliances illustrated by Marsh v. Chickering, 101 N. Y. 396 , 5 N. E. 56 , where a ladder was in question. “The rule is that the master does not owe to his servants the duty to furnish the best known or conceivable appliances. He is simply required to furnish such as are reasonably safe and suitable, such as a prudient man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances. Burke v. Witherbee, 98 N. Y. 562 ; Shearm. & Redf. on Neg. § 92. The defendants had procured a ladder which ordinarily would be regarded as safe for the purpose for which it was used. The plaintiff had used it for a long time without any accident or danger, and on the very night of the accident it had been placed in position and used several times successfully. That it failed at last for any reason does not establish that it was unfit for use. It might perhaps have been more perfect if it had had hooks and spikes, but this improvement was not absolutely essential to relieve the defendants from liability. It was enough that it was reasonably safe and suitable within the rule cited, and under such circumstances an action will not lie.”

I think it was error to admit the proof in reference to the Manhattan Company’s skids. Plaintiff was permitted to prove that the Manhattan Campany used a different kind of skid, fastened by hooks, and claimed to be safe; that for a time that company had allowed the employes of the defendant the use of these skids, but had withdrawn that permission. The purpose was to show that the defendant could and should have procured a safer appliance than

The learned court refused to charge:

“That skids or planking composing the runway which is constructed and moved by the workmen from one car to another as the work of unloading such cars proceeds did not constitute a way within the meaning of the employer’s liability act, but are appliances, implements, or tools furnished for the performance of the work, and, if one of the employes is injured by the negligence of another in the rasing of such appliance or implement, it is one <^f the risks of employment, and imposes no liability on the employer.”

Then the plaintiff requested:

“I ask your honor to charge that, if the defendant had failed to provide a safe runway for the transportation of provisions from the car platform, the mere fact that the negligence of the plaintiff’s fellow servants contributed towards the accident is no defense to the defendant.”

The court so charged and defendant excepted. I think the refusal to grant the defendant’s request and charging the plaintiff’s was error.

The appliances furnished were simple in construction, with no hidden defects, had been used for many years without accident, were similar to those used by others engaged in the same business, and were reasonably safe and proper. There was no obligation to use the best, the safest, or the most recent device for doing the same work. These appliances were temporary in their nature, and put up in each instance by the gang which thoroughly knew its own work; according to the testimony of the members of it, no directions were given by anybody, except to point out the car to be unloaded, and they then would adjust the horse, the skids, etc. Plaintiff himself was the one in authority and the highest employé present, and himself inspected the erection, was satisfied that it was as it always had been, and after such inspection went to work thereon. The evidence shows the accident did not occur through any weakness or defect of material, but solely from the manner of adjustment, and the way in which the employés, including plaintiff, handled the truck.

It follows, therefore, that the judgment and o’rder should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.