Fred Fredericks v. American Export Lines, Inc. S. J. Farrington Iron Works, Inc. v. John W. McGrath Corporation, 227 F.2d 450, 2d Cir. (1955)

227 F.
2d 450
Fred FREDERICKS
v.
AMERICAN EXPORT LINES, Inc.
S. J. FARRINGTON IRON WORKS, Inc.,
v.
JOHN W. McGRATH CORPORATION.
No. 10.
Docket 23077.
United States Court of Appeals Second Circuit.

Argued October 4, 1955.
Decided November 7, 1955.
Sylvia Miller, New York City (Chester A. Hahn, New York City, of
Counsel), for plaintiff-appellee-appellant.
John J. Kirwan, New York City (Leo F. Hanan and Martin J. McHugh,
New York City, of Counsel), for defendant-appellee.
Hurley, Kearney, Lane & Mattison, Brooklyn, New York (Denis M.
Hurley, George P. Lane and William C. Mattison, Brooklyn, N. Y., of
Counsel), for defendant-appellant S. J. Farrington Iron Works, Inc.
Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit
Judges.
MEDINA, Circuit Judge.
Plaintiff was employed as a longshoreman on Pier 84, New York City, by the
John W. McGrath Corporation (McGrath), which was under contract to perform
general stevedoring services for the American Export Lines, Inc. (American),
the lessee in possession of the pier. On April 13, 1951, plaintiff was standing
on a skid or platform, assisting in the transfer of cargo from a ship to the upper
story of the pier, when one of the iron supports on the skid broke, the skid gave
way and plaintiff was precipitated to the stringpiece of the pier below. To
recover damages for the serious injuries resulting from his fall, plaintiff
brought this action, invoking the diversity jurisdiction of the District Court,
against American and the S. J. Farrington Iron Works, Inc. (Farrington).
Plaintiff appeals from the trial court's dismissal, at the end of his case, of the
complaint against American; defendant Farrington appeals from the judgment
entered on the jury's verdict for the plaintiff against Farrington. 117 F.Supp.
355.
Farrington's Appeal
2
The skid was the property of McGrath and was one of a type designed by a
McGrath employee along lines suggested by skids used by another stevedore. It
consisted of wooden planks, reinforced and bolted onto a bed of three iron
plates, one at either end, and one in the center, each of which was six inches
wide and three-fourths of an inch thick. Laterally, on one side all three irons
made two right angle turns. The first turn was around the plank, marking one
end of the bed; and the second turn was away from, but level with the planks,
forming metal extensions, which fitted into and rested unfastened on the upper
floor of the pier when the skid was in use. On the other side, the center plate
terminated with the planking of the skid. The two end plates bent up at right
angles to form pad eyes. When a loft skid is in use, two wire cables, one hooked
into each pad eye, and suspended from the uprights of the pier, on either side of
the doorway or opening, provide support for the skid. Loss of part of this
support, when a pad eye broke off from the rest of the skid iron, was the
immediate cause of the accident.
The applicable law is that of New York, and in instructing the jury the Court
correctly, it is conceded, relied on that line of cases beginning with MacPherson
v. Buick, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. The substance of
the charge was that the jury was to return a verdict for the plaintiff if they
found, first, that a defectively fabricated skid iron was to Farrington's
knowledge reasonably certain to place life and limb in peril, second, that the
broken skid iron had in fact been negligently fabricated by Farrington, and,
third, that Farrington's negligence was a proximate cause of plaintiff's injury.
The broken skid iron was one of some seventy-five irons fabricated by
Farrington on orders placed by McGrath between 1945 and 1948. The break, in
the expert opinion of one witness, might have started at the time of fabrication.
In any event, it occurred because the concave surface of the right angle between
bed and pad eye was formed over too small a radius creating a "stress raiser" or
"localizer," an inherent weakness. This, the expert testified, had the effect of
increasing indeterminably the stress put on the metal by any given load so that
the metal would start to fail under a small load. From this evidence the jury
could have found negligence and proximate cause. There was also evidence
from which the jury could have deduced that Farrington had knowledge of the
purpose to which the iron was to be put and hence of the danger to which
human life would be exposed if the iron proved defective.
5
Farrington bases its first argument on the language of Judge Cardozo in

MacPherson v. Buick. "The principle that the danger must be imminent does
not change," which appears at page 291 of 217 N.Y. at page 1053 of 111 N.E.,
is interpreted by the defendant as a holding intended to limit the liability of the
manufacturer in terms of the period of time intervening between cause and
effect. MacPherson v. Buick, however, does not so hold, and immediacy in
point of time is not an indispensable element of the New York rule. A bomb is
nonetheless deadly if it contains a time mechanism. On the other hand,
evidence of the passage of time, together with that of other attendant
circumstances, is admissible, in order that a jury may not be led astray. The
mere passage of time confers no immunity upon a negligent wrongdoer; but it
has relevance to the likelihood, depending upon the circumstances of a
particular case, that deterioration due to use, perhaps accelerated by misuse,
will be mistaken by a jury for a defect due to negligent manufacture or
fabrication. On the evidence before us in this case, we cannot say the jury went
beyond permissible and rational inference in attributing the accident to
Farrington's negligent fabrication of the skid iron, which cracked and came
apart, despite at least two and one-half years of apparently safe use and
normally rough handling. Davis v. Long Island R. R., 301 N.Y. 450, 453, 95
N.E.2d 700; Newhall v. McCann, 267 N.Y. 394, 398, 196 N.E. 302; Hayes v.
Thompson, Sup. Ct.1874, 2 Hun 518.
A brief discussion of another ground for reversal urged by Farrington will serve
to bring into focus what seems to have been one of Farrington's principal
contentions at the trial, the particulars of which will be referred to shortly.
The jury retired for their deliberations at 12:42 P.M. and at 3:45 P.M. requested
further instructions, which were given. At 5:40 P.M. the forelady sent a
message to the effect that the jury were unable to agree, but the trial judge
requested them to make a further attempt to arrive at a verdict. Thereupon the
jury requested that certain exhibits be brought to the juryroom and about fifteen
minutes later, at 6:15 P.M., the trial judge, of his own motion and without
further request from the jury or anyone else, recalled the jury and proceeded
further to clarify "some portions" of his charge. He said:
"The Court: Ladies and gentlemen, I have been troubled that some portions of
my charge might not have been as clear as they could have been, so I have
attempted to rephrase, in the hope that clarification will be served.
9
"The issues for your consideration are actually few and relatively simple, and
you may not consider any other issues than the ones I submit for your
consideration. You can't speculate. The Court frames the issues, and those are
the issues you will concern yourselves with."
10
This introductory statement was followed by a paraphrase of what had already

been said in the main charge on the subject of what the law required to be
shown by way of knowledge by Farrington of the use which the skid iron
"would be put to," in order to charge Farrington with a duty toward plaintiff,
followed by a few words to assist the jury in reaching a conclusion on the
subject of negligent fabrication.
11
It is claimed that it was error to emphasize these matters and that the effect of
such supplemental instructions was to eliminate the issue of proximate cause as
one of the essential elements of plaintiff's case.
12
The notion that a trial judge lacks power suo motu to recall a jury for further
instructions when he thinks they are needed is indeed a startling proposition,
reminiscent of the days of Jacksonian democracy, when local judges in many
states were shorn of some of their traditional and necessary common law
powers. Fortunately, no such shackles were put upon the federal judiciary. The
trial judge had undoubted power to do what he did here. Allis v. United States,
155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; Charlton v. Kelly, 9 Cir., 156 F. 433.
13
Moreover, we are confident that neither the trial judge nor the jury thought that
any of the issues submitted in the main charge were being taken from the jury.
14
Defendant Farrington, however, insists in its brief and on oral argument that
there was intervening negligence by McGrath and that the case against
Farrington should have been dismissed or that the jury should have been
instructed that, if they found such intervening negligence by McGrath, they
should return a verdict in Farrington's favor.
15
While certain requests for instructions relative to the duty of McGrath to inspect
the skid iron would seem to have been properly denied on technical grounds,
we will assume that the point is properly raised by the objection noted just after
the supplemental instructions above referred to were given. At that time
counsel for Farrington asserted that these instructions were erroneous in that
they "eliminated from the case any consideration * * * by the jury of any
intervening act of negligence, whether on the part of John W. McGrath
Corporation or anyone else."
16
Plaintiff's expert witness testified that the crack in the skid iron, at the place
where it sheared off or broke at the time of the accident, was a progressive
crack and must have had its inception a considerable time before the final and
complete severance. He also testified that the crack should have been visible to
the naked eye from the side, though not across the surface of the metal on the
inside of the right-angled bend. There was evidence that McGrath subjected all
its equipment to monthly inspection, but the crack was not observed, or
reported.
17
It is elementary that the concurrent negligence of some third person will not
absolve a defendant upon whom liability is sought to be imposed for the
consequences of his own delict. Could the jury here, on the evidence before it,
have properly found that the flow of causation, arising from the negligent
fabrication of the skid iron by Farrington, was broken by McGrath's failure to
discover the defect?
18
The point is not new, and many New York cases, decided after MacPherson v.
Buick, have held that the negligent manufacturer of an article which is
dangerous to life and limb when put to the use for which it was intended, may
be liable, even though the negligence would have been without harmful effect
had an intervening purchaser diligently performed his duty to inspect.
Rosebrock v. General Electric, 236 N.Y. 227, 140 N.E. 571; see Sider v.
General Electric Co., 4th Dept. 1922, 203 App.Div. 443, 197 N.Y.S. 98,
affirmed 238 N.Y. 64, 143 N.E. 792; see Smith v. Peerless, 259 N.Y. 292, 181
N.E. 576. Legal scholars who have considered the question endorse the policy
of these cases. See 2 Restatement, Torts, Sec. 396 (Supp.1948); Prosser, Torts,
84, at p. 504 (2d ed. 1955); Bohlen, Liability of Manufacturers, 45 Law
Quarterly Rev. 343 (1929).
19
That the intervening purchaser will remain passive or otherwise fail to do what
he ought to do to prevent the course of events, is a reasonably foreseeable
consequence of the original wrongdoing. Moreover, this is not a distinction
based upon mere passivity but rather upon whether or not the ultimate fact or
occurrence is reasonably foreseeable. This is a far cry from the doing of
something or the refraining from doing something constituting an improbable,
independent, intervening cause, which is a superseding cause and breaks the
sequence. Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529,
L.R.A.1917B, 1058; Ford Motor Co. v. Wagoner, 1946, 183 Tenn. 392, 192
S.W.2d 840, 852, 164 A.L.R. 364; Prosser, Torts, 49 (1941).

Plaintiff's Appeal Against American
20
Plaintiff's appeal must also fail, because his entire reasoning rests upon the
untenable premise that the skid was part of American's plant or premises. To
prove this plaintiff devoted considerable effort at the trial to eliciting testimony
that cargo could not be safely transferred from aboard ship to the upper story of
the pier without the use of a skid. There was some testimony to the contrary.
But tools or equipment do not become part of a lessee's plant merely because
such tools or equipment are indispensable to the work that an independent
contractor has agreed to perform. See e. g., Broderick v. Cauldwell-Wingate
Co., 301 N.Y. 182, 93 N.E.2d 629; Iacano v. Frank & Frank Contracting Co.,
259 N.Y. 377, 182 N.E. 23; Hess v. Bernheimer, 219 N.Y. 415, 114 N.E. 808.
In fact the skid was no more essential to the performance of stevedoring
services than the other equipment used by McGrath, such as ropes, pulleys and
miscellaneous carrying and moving facilities. Nor is there any dispute about the
fact that McGrath was at all times the owner and in exclusive possession and
control of the skid.
21
In view of the foregoing, it requires no extended argument to demonstrate that

Sections 2(13) and 200 of the New York Labor Law, McK.Consol.Laws, c. 31,
can be of no avail to plaintiff.
22
Finally, while in recent years the warranty of seaworthiness has been held by
the Supreme Court to cover a pretty wide territory, Seas Shipping Co. v.
Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v.
Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L. Ed. 143; Alaska Steamship Co. v.
Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L. Ed. 798; Rogers v. United States
Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, nevertheless, here the injury
was incurred by a longshoreman standing on a pier, as a result of the failure of
a defective appliance located on the pier and furnished by a subcontractor. No
decision so far has extended the sweeping protection of the seaworthiness
doctrine to this situation. No vessel was connected with the accident.
23
The judgments are affirmed.

Fred Fredericks v. American Export Lines, Inc. S. J. Farrington Iron Works, Inc. v. John W. McGrath Corporation, 227 F.2d 450, 2d Cir. (1955)

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227 F.

United States Court of Appeals Second Circuit.

Farrington bases its first argument on the language of Judge Cardozo in

This introductory statement was followed by a paraphrase of what had already

S.W.2d 840, 852, 164 A.L.R. 364; Prosser, Torts, 49 (1941).

In view of the foregoing, it requires no extended argument to demonstrate that

The judgments are affirmed.

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