Opinion
June Term, 1901.
Lucien L. Shedden, for the appellant.
Thomas B. Cotter, for the respondent.
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 was one we found 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."
Sic.
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 been 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.