
    William G. Davidson, Resp’t, v. John B. Cornell et al., App’lts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed June 23, 1890.)
    
    1. Master and servant—Negligence—Construction of elevated railroad.
    Plaintiff was employed by defendants in the construction of an elevated railroad. He was at work upon a platform which ran upon longitudinal girders when placed in position and was used in connection with another machine to hoist the girders from the street. It was moved by means of a traction rope and block fastened to a side girder. While being so moved the girders, being insufficiently fastened, gave way and fell, parrying the platform and plaintiff to the street. Held, that the question of defendants’ negligence was one for the jury, and that a non-suit was properly denied; that if they did not, in the first instance, take all the usual and reasonable precautions to ensure plaintiff's safety, even the negligence of fellow workmen of plaintiff would not excuse them, and that the ‘risks attending the manner of performing this work were not among those which plaintiff assumed, as they were not patent and. apparent.
    
      2. Same—Evidence.
    In an action for injuries caused by such accident, it is proper to allow plaintiff to show his ignorance of the effect of a failure to supply braces to the girders and of leading the platform to the side by a rope.
    3. Same.
    Evidence of experts as to the usual methods adopted in building overhead iron structures, and as to the precautions it was customary to adopt, is admissible on the question of defendants’ negligence in failing to adopt usual and well-known precautions to ensure safety.
    4. Same.
    A physician, who had made an examination of plaintiff, was called as a witness as to the extent of his injuries, and his evidence as to statements made to him by plaintiff during such examination was admitted with the understanding that it would be stricken out unless the trulh of such statements was proved, and plaintiff subsequently swore to their truth. Held„ that no error was committed by the-admission of such evidence.
    
      Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action for injuries alleged to have been caused by defendants’ negligence.
    
      Charles J. Patterson, for resp’t; Lemuel Skidmore, for app’lts.
   Osborne, J.

In 1888 defendants were contractors for and "were engaged in constructing an elevated railroad on Broadway, in this city, and plaintiff was employed by them in such construction. On February 14, 1888, an accident occurred by which plaintiff was severely injured, and he brought this action to recover damages for such injuries, on the ground that they were occasioned by the negligence of the defendants. Plaintiff on the trial recovered a verdict for $2,500, and from the judgment entered thereon and from an order denying a motion for a new trial this appeal is taken.

The method of construction of said elevated railroad, in so far as it related to the points in dispute herein, may be briefly described as follows: Iron columns were first firmly inserted on each side of the street at or near the curb, transversely opposite each other, and longitudinally fifty to sixty feet apart; these columns were spanned by transverse girders, which rested on top of the columns and were bolted to the brackets on top of the columns. Four longitudinal girders, two on each side of the street, extending from column to column, were then placed on the transverse girders, the ends resting on the cross girders on top, on iron saddles or seat plates placed on the transverse girders for that purpose, and also resting below on iron brackets extending out from the cross girders to receive the lower part of the ends of the longitudinal girders, then two bolts were inserted in bolt holes made for that purpose through the flanges on the longitudinal girders and the seat plates on the transverse girders, these bolts being screwed up with nuts tightened by hand.

After the first two or three longitudinal girders were placed in position, a structure was placed thereon, designated as a platform or traveler; this consisted of a platform resting on axles with twelve wheels, three wheels running on each of the four longitudinal girders, the wheels being twenty-four inches in diameter and having flanges on the outside about three inches in depth; the platform over the wheels was about twenty-five feet wide and thirty feet long, and was constructed of heavy timbers. On this platform was a small frame house in which was a steam engine, boiler and winch, sometimes called “ The Gypsy.” On the front of the platform was what is called a gallows frame, consisting of four posts, secured by a cross piece on top; the outer two of the posts were located nine or ten feet from the edges of the platform, one on each side, the two inner posts being on a line with the outer posts and about equi-distant therefrom and from each other.

On this platform were also kept ropes, blocks, necessary tools and implements; the workmen required to work it were generally thereon, and its weight, including its contents and appliances, was about ten or twelve tons. Wooden chock blocks were used to keep the platform in place, when it was not in motion ; and there was also a rope in the rear of the platform fastened to a side girder some distance in the rear, called a heel rope or check rojDe, which was used to prevent the platform when in motion on a down grade from going too rapidly.

In front of the platform, but not connected with it, was a light derrick, weighing about three tons, called “The Grasshopper,” which was used for the purpose, in connection with the engine on the platform, of hoisting up the girders from the street, in order to place them in position; as its use or construction however had no immediate connection with the happening of the accident, by which plaintiff was injured, any particular description of it here is unnecessary.

When a set of longitudinal girders had been hoisted, placed in position and bolted, the grasshopper and platform were then moved forward another span, so as to be in position for lifting the next set of girders. The method of moving the platform was as follows : A leading block was taken forward about sixty feet and attached by a clamp to the top of the inside left hand longitudinal girder; a rope was fastened to one of the legs of the gallows frame on the same side as the leading block, carried forward to the leading block, passed through it, and then returned to a block in the centre of the platform and thence to the drum of the gypsy, where a turn or two was taken, and the end held behind the drum by a workman who took in the slack rope as the engine revolved the drum and drew the platform ahead; this rope was called the traction rope.

The elevated railroad had been constructed by the defendants for a distance of about three-fourths of a mile. Plaintiff (who had previously worked for defendants) had been employed on the traveller and about the construction for about two months prior to February 14, 1888. On that day, while the traveller was being moved forward in substantially the manner above described, and when it was about half way across a sixty foot span, the four longitudinal girders on which it was moving suddenly gave way and fell into the street, carrying with them the platform and the plaintiff, who was standing on it at the time, thereby causing the injuries of which he complains.

Plaintiff's contention on the trial was that the structure was insecure and unsafe, and that the method of construction was a dangerous one, and that defendants neglected the usual precautions to strengthen it and make it safe before subjecting it to the strain of the heavy weight that was put upon it. He claimed that lateral bracings should have been put in between the longitudinal girders; that the ends thereof should have been fastened with bolts at the bottom as well as the top, in the bolt holes provided for that purpose; that one of the longitudinal girders over which the platform was passing at the time it fell was bent, and that, by reason of fastening the clamp to a longitudinal girder, instead of to a transverse girder, the structure was subjected to a dangerous lateral strain, which helped to cause its fall. Evidence was introduced on the part of the plaintiff to sustain the foregoing contentions.

At the close of plaintiff’s case, the learned counsel for the defendants moved to dismiss the complaint, on the grounds that no negligence had been shown on the part of the defendants, that the negligence, if any, was that of fellow servants, and that the plaintiff assumed the risks of his employment. This motion was denied, and defendant’s counsel excepted.

We think the motion was properly denied. Enough had been shown by the plaintiff to require the submission to the jury of the question as to whether defendants had been negligent in the duty that they owed to plaintiff; they were bound, to take all usual and reasonable precautions to make the structure secure, and to ensure, as far as they reasonably could, the plaintiff’s safety, and unless they had done so in the first instance, even the negligence of fellow workmen of the plaintiff would not excuse them; while it is true that plaintiff assumed the risks of his employment, yet it is well settled that the risks assumed must be patent and apparent. To hold that in the erection of a structure of this character plaintiff must have been or ought to have been aware of the results that would naturally follow each step taken in the course of the work would be crediting him with the possession of a knowledge that no one would expect from a workman of his grade of employment; he had a right to rely on the superior knowledge of his employers as to all those matters in which he could not foresee what might happen in following out the plan of construction devised by them. At the close of the testimony, the motion to dismiss was renewed, denied and an exception taken.

We cannot see that the submission of the defendant’s testimony had so utterly refuted the testimony on the part of the plaintiff as to authorize the learned trial judge to take the case from the consideration of the jury. All the contentions of the plaintiff had been controverted and put in issue by the defendants’ evidence, but there was no such preponderance of testimony in favor of the defendants as would have justified the court in dismissing the complaint. The testimony on both sides was voluminous and on many points contradictory. It was just such a case as called for the verdict of a jury on the questions involved, and we think it would have been error to have held otherwise.

At pages 54 and 55, plaintiff was asked if he knew what the effect would be if braces were not supplied to the longitudinal girders, and also what the effect, if any, would be to lead the traveler towards the side with a rope, and he was allowed to answer these questions under objection and exception. We think the questions were• properly allowed; plaintiff had a right to show, if he could, his ignorance of the effects arising from the matters inquired of; if he knew of the effects, it might reasonably be claimed that they were included in the risks of his employment, or that he was guilty of contributory negligence. Those questions and plaintiff’s answers went to show that the risks, if any, arising from the alleged defects inquired about, were not patent, and that plaintiff knew nothing of the consequences that might ensue therefrom.

Various other exceptions were taken by the learned counsel for the defendants to the admission of the evidence of experts as to the usual methods adopted in the building of overhead iron structures, and as to the precautions it was customary to adopt. Plaintiff claimed that defendants’ negligence consisted, in part, of a failure to adopt usual and well known precautions to ensure safetywe think, therefore, that this class of evidence was admissible to enable him, if he could, to sustain his contention.

Plaintiff was examined by Dr. Corey on the Saturday previous to the trial, and the doctor was called as a witness on the trial as to the extent of plaintiff’s injuries. The learned counsel for the defendants objected to the admission of any statements made in the course of the examination by plaintiff to Dr. Corey; this evidence was admitted by the court with the understanding that it would be stricken out unless the truth of such statements was proven, and plaintiff subsequently was recalled and swore that the statements so made by him to the doctor were true. We think that this was a proper disposition of the objection, and preserved all defendants' rights: these statements of plaintiff were incidental to the medical examination, and contributed to its completeness and efficiency. We are aware that similar statements made to a layman have heretofore been held inadmissible on the ground, in part, that they were hearsay, and, in part, that it afforded an opportunity to unduly exaggerate the injuries complained of; these objections, however, were removed by the plaintiff’s testimony that the statements made by him to Dr. Corey were true.

The testimony given by the witness, Salisbury, on cross-examination, as to the manner of constructing the Sands street road, after the accident, was properly admitted. Counsel for defendants had, on the direct examination, examined the witness as to the construction of that road, and the questions put by plaintiff’s counsel constituted a fair cross-examination on that point.

This case was submitted to the jury in a lucid and exhaustive charge which, in our opinion, fully and fairly covered the legal rights and duties of the plaintiff and of the defendants. Without taking up seriatim the various requests to charge made by the learned counsel for the defendant, which were refused, we think no error was committed in any of such refusals. The subject-matter of most of them had already beep covered by the charge of the learned trial judge, while others embodied or were based on facts assumed to be undisputed, but as to which there were disputes.

None of the other exceptions in the case seem to us to call for any special notice or discussion.

The very elaborate brief of the learned counsel for defendants • has received our careful attention and consideration; but we find ourselves unable to agree with him that the learned trial judge committed any error upon the trial or that the appellants were prejudiced in any way. We are accordingly of the-opinion that the judgment and order appealed from should be affirmed.

Judgment and order denying motion for new trial affirmed, with costs.

, Clement, Ch. J., concurs.  