Opinion
No. 15.
November 5, 1945.
Appeal from the District Court of the United States for the Eastern District of New York.
Action by Toivo J. Saario against Charles F. Vachris, Inc., Grand Wrecking Lumber Corporation, Sam Lessne and another for injuries sustained when struck by timber being unloaded from a truck. From a judgment for defendants, the plaintiff appeals.
Reversed.
Appellant brought this suit, tried before a jury, for injuries he sustained as a result of an accident on January 15, 1943, in Bayonne, N.J. He was a machinist employed by McAllister Lighterage Line at its repair yard operated on land leased from the City of Bayonne, Before December 1, 1942, he and other McAllister employees, in order to reach the nearest public street, had with the City's consent, been accustomed to cross adjoining vacant land of the City in order to reach a public street; they used a road on that adjoining land referred to as "the old road." On December 1, 1942, the United States government leased this adjoining land from the City. In the course of work on this government tract, done for the United States by divers contractors, the old road was torn up. Thereafter, McAllister's men continued, with the consent of the City and the United States, to cross the government tract on their way to the public street; as the old road was torn up, they took no regular path.
Appellee Vachris, Inc., was a contractor which for some time before the date of the accident had been doing some construction work on the government tract for the United States. Vachris knew that McAllister's men were accustomed to traverse the government tract by irregular routes. On the day of the accident, appellee Grand Wrecking Lumber Corporation was delivering to Vachris, on the government tract, a load of lumber in a truck driven by the lumber company's employee, appellee Lessne. The lumber consisted of 73 timbers, 6× 10, 6× 12, 4× 8, and 12 to 20 feet long. Lessne was directed to "go where there was a bunch of men working on a steam shovel" at which place he would find a foreman, one of Vachris' employees, "who will tell you where to go." He did as he was told. The foreman directed him to drive his truck to a point about 400 feet distant and there unload the lumber. Lessne testified that he objected that the ground at that point was so soft that he would need a tractor to pull him out, and that the foreman accordingly assigned to him a man who was at hand, Pecora, one of Vachris' employees, who would "take care" of Lessne if he "got stuck." Pecora testified that the foreman said to him, "If the driver wants any help you help him." Pecora also testified that, when the foreman spoke to him, there were "many guys, workers, there." With Pecora's help, Lessne put a tie or log on the ground about five feet behind the truck. The chains fastening the lumber to the truck were then taken off, and the truck was backed against the tie, thus causing the lumber to spill on the ground. Lessne testified that, before he backed the truck, he had told Pecora "to watch out behind so nobody crossed in the back." Pecora testified that Lessne merely told him, "Please watch the truck when I back up to see that the lumber moves," and that he was not told to watch out for anyone in the rear of the truck.
Appellant and several other McAllister employees, crossing the government tract, approached the truck. There was testimony from which the inference could reasonably have been drawn that, as they neared the truck, it was standing still; that the view was such that, had Pecora been keeping a watch, he would have seen them in ample time to give them warning or to warn Lessne not to back; that the truck did suddenly back when appellant was too close to avoid danger; that only then did Pecora shout, "Look out!"; that the lumber was discharged, a piece of it striking appellant, causing the injuries for which he brought this suit. Pecora, who had been working on the lot for several weeks, testified that he knew McAllister's men were accustomed to cross the lot but that "they usually go some other way."
There is no evidence that any employee of Vachris had previously seen any McAllister employees cross at this particular point, nor any evidence that the lumber company or Lessne had previously delivered lumber on this tract.
In his instructions to the jury, the trial judge included the following:
"Clearly the trucking company through Lessne would not be chargeable with knowledge that McAllister's employees would be following this particular route if this was the first time that Lessne had been on the property. It follows therefore that the necessity for using due care or reasonable care did not arise until there was knowledge to be imputed to Vachris through Pecora, and to the trucking company through Lessne, and to Lessne himself, of the presence of the plaintiff and his companions at that place. When they did acquire such knowledge they were required to exercise reasonable care not to injure the plaintiff or anyone else in the group; but if this knowledge did not come until it was too late to arrest the reverse movement of the truck and the rolling of the timbers off the truck, which that reverse movement was designed to accomplish, then there is no evidence of lack of due care or reasonable care toward the plaintiff on the part of any defendant, and your verdict should be consistent with that state of facts. Conversely, if this knowledge of the presence of one or more of these men came to the defendants in time for them in the exercise of reasonable care to arrest the reverse movement * * * so that there would be no contact with the tie which served as a bumper, and hence there would be no rolling off of the timbers, it would be evidence of lack of due care or reasonable care which would justify a contrary verdict; that is to say, a verdict against the defendant failing to exercise that reasonable care. If it was the driver, Lessne, you will, of course, have to be satisfied from the evidence that he knew of the presence of these men in time to stop his truck before it struck the timber on the second reverse movement * * * What is reasonable care depends upon all the circumstances, and I have tried to make clear that the duty to exercise reasonable care did not arise until the presence of these men was known or could have been known to the driver of the truck and the man who was standing alongside of it. When they knew that these men were there did they have time to stop the falling of that load? Did they have time to do anything else which would have successfully diverted the plaintiff and his companions from their walking alongside of the truck and near enough to be in danger of what might happen * * * As to Vachris, the contractor, which was about to erect some kind of structure at or near the place where the plaintiff was injured, and as to the trucking company delivering lumber for that purpose, there is no testimony which would charge them with notice that McAllister's employees had been crossing the property in the vicinity of the place where the truck was * * * I charge you that if you find that the defendants Grand Wrecking and Lumber Corporation and Sam Lessne were not aware of the presence of the plaintiff while the lumber was being unloaded from the truck then you must find for said defendants."
The jury having returned a verdict for appellees, judgment was entered for them, and appellant brought this appeal.
J. Alfred Anderson, of Fitchburg, Mass., for appellant.
Frederick M. Garfield, of New York City (Harold M. Harkavy, of New York City, of counsel), for appellees Grand Wrecking Lumber Corporation and Sam Lessne.
George J. Stacy, of New York City, for appellee Charles F. Vachris, Inc.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
The jury could reasonably have believed that Vachris' foreman told Pecora to aid Lessne in the unloading operation. On that basis, the jury could properly have found that Vachris became a party to that operation. Vachris' employees, and Pecora in particular, knew that McAllister's men were accustomed to stream across the lot. The jury could properly have inferred that there was no reason why those men might not have legitimately crossed at the particular place where the accident occurred. Moreover, Pecora knew that some of Vachris' employees were nearby and might be about when the lumber was unloaded; accordingly, as Pecora knew that some persons legitimately on the lot might be injured if reasonable care was not taken to warn them, Vachris owed such persons a commensurate duty of due care. Appellant was a person legitimately on the lot. It is immaterial whether McAllister's men had ever previously crossed where the accident happened. It was therefore improper to instruct the jury that Vachris' liability depended on Pecora's actual knowledge of the plaintiff's presence.
Lessne likewise knew that there were men legitimately on the lot and not far from the place of unloading. That knowledge also put upon Lessne and the lumber company a duty, to persons legitimately on the lot who might pass near the truck, to use due care in the unloading. Indeed, the fact that Lessne directed Pecora to watch for persons who might pass the rear of the truck indicates that Lessne was aware of such a duty. The jury, under proper instructions, could reasonably have found that Pecora, acting as the assistant of Lessne and the lumber company, did not, on their behalf, discharge this duty. Under the instructions given, however, the jury was precluded from thus considering the evidence; for it was told, in effect, that Lessne and the lumber company were not liable absent actual knowledge on Lessne's part of the presence of appellant.
Reversed.