Pennsylvania, Steel Co. v. Nace

Thomas, J., delivered the opinion of the Court. The Washington and Berkeley Bridge Company, a West Virginia corporation, proposing to build a toll bridge across the Potomac river, at Williamsport, between Berkeley County, West Virginia, and Washington County, Maryland, of sufficient size and strength to sustain a track for trolley cars or other cars to be operated by electricity* steam or other power, and to provide ample room for vehicles and pedestrians, in July, 1907, entered into a contract with Mason D. Pratt, _a civil engineer, whereby he was to make all necessary surveys for the location of the bridge, and proper plans and specifications for the same; supervise the construction of the bridge and' see that the terms of contract with contractors were' “properly and fully carried out,” and in all such matters act as “the company’s agent and representative.” The contract further provided “that in- all transactions the said engineer shall and will fully realize and so ⁴⁶⁸ act and serve the said company in every way that will insure and subserve its best interest, and that his sole object and purpose will be to serve the company solely and absolutely.” On the 6th of August, 1908, the Bridge Company contracted with the Elmore and Hamilton Contracting Company for the erection of the concrete piers and abutments of the bridge, in accordance with plans and specifications annexed, to be completed within four months from the date of the contract, which specified that “The decision of the engineer (of the Bridge Company), shall control as to the interpretation of the drawings and specifications during the execution of the work under them,” and on the tenth of August, the Bridge Company entered into a contract with the appellant, the Pennsylvania Steel Company of Philadelphia, a corporation, in which the appellant agreed to “fabricate, deliver, erect and paint sixteen plate girder spans for the above bridge, on piers provided by the (Bridge) Company, including the steel stringers to support a trolley track,” according to specifications annexed, and to “fully finish and complete the same within one month after the completion of the piers and abutments.” This contract also provided that the decision of the “Engineer shall control as to the interpretation of the drawings and specifications during the execution of the work under them,” and the -specifications stated: “the piers are to be built under a separate contract- and will be of concrete, and it is expected that they will be ready for the bridge contractor to begin placing girders not later than November 1st.” The Elmore and Hamilton Contracting Company began the construction of the piers and abutments about the 1st of September, 1908, and the last pier, pier ten, was completed on the ninth of December. The erection of the steel and ironwork was commenced by the appellant on the 17th of November, 1908. The piers were about one hundred feet apart, and the.steel superstructure of each span consisted of ■two large steel girders, each weighing about ten tons, ex ⁴⁶⁹ tending front ¡tier to pier, and placed on concrete pedestals on top of the piers, seven floor beams and twelve eye beams, weighing in the aggregate about sixteen and one-half tons.

On these floor beams was constructed a railroad track, on which the girders and beams were transported' from the shore to each span as completed for use in the further construction, and on top of the girders was placed a traveling crane or derrick, called a “traveler,” weighing about forty tons and employed in lifting and extending the girders to the next span. The span between piers nine and ten was completed on the 15th of December, and on the 16th of December, while the employees of the appellant, including the appellee, were engaged in erecting the span between piers ten and eleven, pier ten gave way and the steel superstructure between piers nine and ten and the traveler were precipitated into the river, and the appellee sustained the injuries for which this suit was brought. During the trial, which resulted in a judgment and verdict for the plaintiff, the defendant reserved twenty-two exceptions to the rulings of the Court on the evidence. At the conclusion of the testimony the plaintiff offered two prayers and the defendant seventeen, and the twenty-third exception is to the overruling of defendant’s special exception to plaintiff’s first prayer as modified, to the granting of plaintiff’s first prayer as modified and plaintiff’s second’ prayer, and to the modification of defendant’s fifteenth prayer, and the rejection of defendant’s first, second, third, fifth, sixth, seveirth, eighth, ninth, tenth, eleventh, thirteenth, sixteenth and seventeenth prayers.

As the defendant’s first prayer asked the Court to instruct the jury that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover, it is necessary to examine the declaration and to consider the evidence somewhat in detail. The declaration charges that the defendant, on the sixteenth of December, 1908, “was engaged and for some time theretofore had been engaged in the erection and construe ⁴⁷⁰ tion of a bridge across the Potomac river, at Williamsport, in tbe county and State aforesaid, that said defendant was then and there placing the structural iron and steel work used in the erection of said bridge upon piers or abutments which had lately theretofore been constructed of cement, sand and stone and commonly called concrete work, and which concrete piers and abutments stood about equi-distant from each other across said Potomac river; that this plaintiff was then and there employed by the defendant and was then and there the servant of the defendant and was engaged in the work of placing said structural iron or steel work on said piers or abutments, and was then and there using due care and caution on his part; that whilst this plaintiff was so engaged in his aforesaid work it became and was the duty of the defendant to exercise all reasonable care to furnish, provide and maintain a reasonably safe place for the plaintiff to perform his work, aforesaid, and to avoid exposing the plaintiff whilst so employed to any extraordinary and unreasonable peril, against which this plaintiff from want of knowledge and skill could not by the exercise of due care on his part guard himself; yet the defendant well knowing its duty in the premises, and well knowing or by the exercise of reasonable care and caution on its part could have known that a certain one of said piers, to wit: pier known as “Pier PTo. 10,” was, then and there, and at that time, to wit: on the morning of December 16th, 1908, green, weak, defective and of insufficient strength to cany the weight for which it had been constructed, and well knowing that this plaintiff by resaon of lack of the requisite scientific knowledge, skill and experience could not by the exercise of ordinary care and prudence guard himself against the weakness, defectiveness and insufficient strength of said Pier PTo. 10, negligently ordered and directed this plaintiff to proceed with his work of placing said structural iron or steel work upon said Pier PTo. 10, and while so engaged, to wit, on December 16th, 1908, at Washington County, aforesaid, and whilst this plain ⁴⁷¹ tiff was using due care and caution on his part, the said Pier No. 10, by reason of its weakness, defectiveness and insufficient strength collapsed and broke down under the weight of said structural iron or steel work, and this plaintiff by reason of the defendant’s negligence aforesaid, was hurled and thrown from said bridge many feet- into the river below and thereby was greatly injured.” The evidence shows, or tends to show, that pier 10 was properly constructed, and in the manner and of materials of the character and quality provided for in the contract and specifications. According to the testimony of a number of witnesses, experienced in concrete work, including P. E. Glower, who superintended the building of the piers, it takes from three weeks to thirty days after what is called the “initial set” for concrete to dry out and harden- sufficiently to sustain heavy weights, and that it is the custom to wait that length of time before putting heavy weights on concrete; that the first action after the concrete is placed in position, is the “initial set,” and then the drying out and hardening process begins, and the length of time it takes to dry out and harden depends somewhat upon weather conditions, if the temperature is about freezing point or below the’ concrete retains its moisture and will not dry out and harden, and newly made concrete will not set. One of these witnesses, W. IL Dau, a civil engineer who had been engaged in building bridges and concrete piers for a number of years, testified : “I was at the Williamsport bridge on Eriday morning-after the accident, went on top of pier 10 and examined the concrete to ascertain what condition it was in at that time.

I went there at the request of the State’s Attorney and testified at the corner’s inquest. When concrete is mixed and placed in position the first action that takes place is called the initial set, which should take place within an hour. The drying out process comes after that; it takes a firmer set and then the hardening process takes place, which is called, setting up. Compression strength is given to concrete to hold ⁴⁷² weight by age.

This is the hardening process. I examined the tgp of pier 10 but did not go over the pedestal, I was afraid to go over but I stood on the other end of it. I had a hammer along with me and the concrete was in such a condition, that you could break the stones away from the mortar; it was rather wet, which indicated that the concrete was entirely too green to be put to any use, from my experience I could not say as to the materials except the stone and the mixing of it. The stone appeared to be all right, some pieces of it rather large, but it was mixed thoroughly and seemed to he tampered properly and well put up. ■ I think in time it would have made a fairly good job.

Weather conditions affect the setting up of concrete in order to use it, where the thermometer would be around freezing or below, the weather conditions are regarded as unfavorable to the setting or hardening of concrete, around freezing or below newly made concrete will not set, it would keep too much moisture in the concrete, it would not dry out and would not form well.” This witness further testified that he had heard all the testimony in the case, and assuming it to he true, the superstructure supported by piers nine and ten was not a reasonably safe place for the workmen to go on the 16th of December, 1908, for the purpose of placing the girders between piers ten and eleven; that there is a condition in concrete known as “greenness,” which means that the concrete has not dried out, in other words it is still wet. The drying out process has not hardened it yet; “that a person of ordinary skill and knowledge of the action of concrete could have ascertained the greenness of pier 10 by going upon it and inspecting it, and that any man familiar with the mixing of concrete and putting it into form and experienced in seeing it set, could have seen that the- pier was green.” Witness, Charles E. Phelps, Jr., a mechanical engineer of experience in concrete work, when given the manner in which the piers were built; the materials used; the temperature for several days after the completion of pier 10, and the weight of the steel super ⁴⁷³ structure, testified that it was not safe to place that weight on pier 10 at the end of seven days from the date of its completion, and that the natural and probable consequence of doing so would be “a failure of the material, constituting the pier. It would probably be crushed at the top of the pier. A crushing of the material would result, a crushing of the concrete; a failure of the concrete itself to support the weight;” and that if the pedestal on the pier, which supported. one of the girders went down under such circumstances, “It would be due to the fact that the concrete was not sufficiently set at the time the load was put on; and- the going down of the load and the crushing of the concrete pedestal would be due to the fact that it was loaded before the concrete had hardened.” The evidence further shows that the temperature at Chewsville, about fourteen miles from Williamsport, from the 6th of December to the 16th of December, 1908, was as follows: “On December 6th the maximum was 39 degrees and the minimum 23 degrees, on the 7th 45 and 27, on the 8th 36 and 20, on the 9th 38 and 24, on the 10th 37 and 15, on the 11th 38 and 30, on the 12th 39 and 27, on the 13th 44 and 23, on the 14th 47 and 25, on the 15th 39 and 27, on the 16th 52 and 31.” Prank L. Benning, an employee of the defendant, who was working on the bridge at the time, described the accident as follows: “I have known the plaintiff for about four years, at the time of the accident he was engaged as signal man on the traveler, he and I were both working for the Pennsylvania Steel Company, the Steel Company was placing the steel work on the bridge, using steel girders about one hundred feet long and about six feet high, the top and bottoms of flanges about fourteen inches wide, weighing about fen and one-half tons each, two girders being placed in each span on pedestals on the top of the-piers which piers and pedestals were of concrete, pier ten was about thirty feet high, the girders were placed in position with a derrick steam traveler.

The traveler is a crane that runs on top of the girders on top of the ⁴⁷⁴ flange, and lets space enough under it to run a car between the girders and on top of this is an A frame put up which is a piece of iron running from one side of the traveler to the other, making something like the letter A, upon this the boom hangs which is a piece of iron or wood that reaches out and handles the material, an engine placed on the back of the traveler furnished the power for the operation, it was my duty to run the engine, the .traveler is clamped to the girders in four different places near each corner, there were four men including the plaintiff working on the traveler at the time of the accident, I think there were fifteen or sixteen men working on the bridge including the four working on the traveler, the plaintiff was giving signals to me and the other workmen, he stood on the front end of the traveler on the right hand side between the legs of the A frame, where he could see all the workmen, we went to work that morning at eight o’clock and worked about a half hour, got my machinery in shape ready to put the girder out and put it out and at that time the accident happened, we picked the girder up and lowered it out to its place, as near as we could get it, and had to lower it down almost in position temporarily so it could not wave, to allow the men to cross over to pier eleven and while we had it landed and the men were in the act of getting on the girder to cross over, the pier gave way and the traveler went down, the full weight of the entire girder had not been let down on the pier, up to the time of the giving way of the pier everything, men and machinery, had been working all right, the first thing I noticed was that the pier gave way, and I saw the traveler leaning, felt it giving way under.me, it started slowly.” The plaintiff testified that he was forty-eight years of age, and had been engaged in work of bridge building for twenty-four years; that he had been employed by the Pennsylvania Steel Company since 1896 or 189^; that he had not had much experience in building steel work on concrete work, and that the first work of that kind was in 1905 or 1906, and that ⁴⁷⁵ prior to that time steel “superstructure was generally placed on stone piers or abutments”; that he was employed by the defendant to work on the bridge of Williamsport, and went to work there the 1st or 2nd of December, 1908; and that he was directed to go there by a letter from Mr. Eitt'er, from the office of the appellant at Steelton. He further testified: “When I got there they had the ground derrick close to the track where they unload the steel; they had one span up and the traveler ready to put the boom in place the day we went to work; my duty was giving signals on the traveler; the concrete, piers were completed from the Maryland side as far as pier nine; pier nine was then finished, to the best of my knowledge; we started to get the boom up on the bridge abutment to pier number one on the Maryland bank. I continued there from that time on until the 16th day of December, every day, as we kept getting one span out and the floor beams and eye beams in and put our track down and put the rail on to run our trolley ears to carry out the girders, so the traveler could taire them up, and kept on one day after the other unless raining or snowing. On the morning of December 16 th our traveler was standing within about eight or ten feet from the pier ten; I do not know how long the traveler was, I never measured it.

I should judge about forty feet. Girders were about one hundred feet long, each weighing ten or ten and one-half tons; between the girders which rested between piers nine and ten there were seven floor beams, each about one foot wide on the top and between twenty-two and twenty-three feet long, each weighing about three thousand pounds; there were also twelve eye beams fifteen inches deep, weighing about one thousand pounds each; the traveler and equipment that rested on the iron girders, as near as I can judge, weighed about forty tons. On the morning of the 16th of December we went to work at eight o’clock. On the 15th we put the girder off the truck.

On the 16th we picked it up. I would boom out until the girder came close to the track; then wordd have to pick up the load ⁴⁷⁶ again and boom out and keep on that way until it reached pier eleven. Just as we landed it temporarily I gave the engineer the signal to drop the dog in front of the engine. T looked around and saw the concrete dropping down along the pier, and I grabbed for the cable, but whether I reached it I could not say.

We had landed the girder temporarily, to keep it so the wind wouldn’t blow it around and the men could walk across to shore it up on pier eleven. We had not let all the weight of the girder down, just a little, so it would rest there and would not wobble around. It would hold more firm by landing it the least bit for the men to walk across. I stood on the front end of the traveler about ten or twelve feet higher than pier ten, and I was back about eight or ten feet from the pier.

I saw the concrete falling under the girder. .Right under the girder it commenced to dribble down along the pier on the Maryland side on the upstream corner. It just went gradually down until it broke away a little piece, and then went with a crash. After that I don’t remember anything until about ten or fifteen minutes; it may have been only five minutes until I came to. I have been working with travelers for the last twenty-four years.

T am familiar with the operation of a traveler. Everything that morning was going along nice and smooth and had been from the beginning of the work. Nothing had occurred or gone wrong from the start with the machinery or the traveler from the beginning to the day of the accident. The girder had been setting on the track over the night of the 15th, across stringers on the down-stream side of the two girders.

There were two girders from pier nine to ten. This additional one was between them about sis feet from the down-stream girder.” Plaintiff also stated that he was careful about his work; that he was not warned by the appellant that it was not safe to go on the bridge that morning; that he did not know anything about the weight-bearing-strength of concrete, and . that it was out of his line, and he had never raised any concrete or given it any ⁴⁷⁷ thought; that he had seen concrete mixed with sand, rock, cement and water, and knew that you cannot work on concrete until it has hardened a little, but did not know how much it must harden, and that at the places he had worked the “concrete men had always finished and moved away”; that William H. Biekel was foreman, and they went by his instructions ; that Mr. Pratt was the chief engineer; that the approximate height of pier ten was forty-five or forty-six feet, and that the pedestal on the upstream end of pier ten was five feet long across the pier, about thirty inches wide and about two feet high. William Biekel testified in behalf of the defendant as follows: “Am 37 years old; I live in Dauphin, Pennsylvania; am an iron worker, and have been since 1891. I am not an