McGovern v. Central Vermont Railroad

The single question presented by this appeal is whether the plaintiff’s intestate, Thomas McGovern, met his death because his employer, the defendant, failed to perform the duty which his duty as master enjoined upon him. The elevator, bins, methods of construction, and appliances were, so far as it is material to examine them, substantially the same as they had been for 17 years. It does not appear that they had during that time ever brought injury upon any one, or that any better methods of construction or appliances had been tested and approved by experience elsewhere. The only fault alleged with respect to construction is that there was a trap-door in the bottom of this bin opening upward in such way, as was shown by the experience in this case, that if grain should glue together upon the side of the bin and remain there in large quantities after the flowing grain had discharged, it was liable when dislodged, or of its own gravity, to fall or slide down, and push the trap door over the opening and close it. It was so devised to prevent the grain from falling through this opening upon the floor below. All of the other bins—144 of them—had similar trap-doors. It does appear that such glued grain had fallen before, but no one had ever been hurt. The bin was 50 feet high. When the grain ceased to flow the bin was inspected, either from the top or bottom, to ascertain if all the grain had run out. A man was stationed upon the upper floor to make the inspection from above. This he did when requested by the men in charge below, the request being made through a speaking-tube. If the inspection was made from below the bin was entered through the trap-door in the bottom. Upon inspection the bin was cleaned out. Usually dry grain very fully discharged itself, and the workman who entered the trap-door and made the inspection swept out the bin. If grain adhered to the sides or corners of the bin, and was within reach from

If Linton may be said to have stood in the place of master, he did not give McGovern any special order to enter the bin. Linton himself had undertaken to make inspection, but silently surrendered that duty to Eackerell and McGovern, who were accustomed to it. They proceeded to inspect the bin, and of course to decide what to do as the result of the inspection. They did inspect, and did decide that there was danger, and began to retreat, when the danger overtook McGovern. It is urged that the master ought to have forbidden inspection from the bottom and have permitted it only from the top in the first instance. The view is suggested by this accident, not by any previous experience. There is no evidence that Linton knew the corn was heated. McGovern did know it. He was both inspector and workman. He had had 13 years’ experience in the business, and no inference of his incompetency as inspector is suggested by the evidence. The man on the upper floor only inspected from above when called upon from below to do so, and it was evidently McGovern’s place to make such a call with respect to this bin if he thought it needful. He perhaps was a little hurried and confused by the fact that the bin “had gone to shoveling,” in his temporary absence, and that Eackerell had taken up his work. But Linton gave him no orders, and did not interfere with him. We think the testimony wholly fails to show that the defendant was at fault. Bohn v. Havemeyer, 46 Hun, 557 , 21 N. E. Rep. 402 ;