Hesketh v. New York Central & Hudson River Railroad ( 1899 )

Landos, J.:

Here was a new device — a small house or cabin erected upon stilts upon the top of an embankment of considerable height in the open country, and so rising above the embankment that its bottom was clear above the reach of passing tiains. It was peculiarly exposed to the violence of the winds and storms; it was so constructed that its whole height and substance above the surface of the ground was, when subjected to the pressure of the wind, the long arm of a lever exerting its force to pry up the earth and stone that fixed and bound its shorter arm to and within the ground. This cabin was the post of the plaintiff’s duty.

Let it be conceded that this erection received in its design, substance and manner of construction the careful consideration of experts in civil engineering and bridge construction, still this was the first of its kind; no experts in this identical class of structures were obtainable. The question is, who should take the risk of its practical test of storm worthiness ? • Who should suffer ' if the breadth of its base' was too narrow, the depths to which the ■ supports were sunken into the ground too shallow, the anchorage of ¡ stone too light, the consistency or cohesion of the earth into which the supports were placed too sandy or too weak, the precautionary appliances of safety in the form of stays, braces and lateral supports too few ? The mere laborer, whose knowledge could not attain to the range of any of these problems, and whose means were limited to his daily wages, or the railroad company, whose power compasses the knowledge of past experience, and which is able in case such experience does not show the exact requirements of safety, to add such a margin of extra safeguards as shall secure it, if not beyond peradventure, at least to the extent of a reasonably cautious apprehension ?

The answer to this question depends upon the proper answer to be given to the further question : Did the railroad company use reasonable care in making and employing this device ? This is to be answered in view of the absence of practical tests of this class of erections, their exposure to the violence of extraordinary storms, the presumed knowledge of the company of the operation of natural and mechanical forces, its duty to supplement the theoretical needs of safety by a liberal margin of safeguards against mistakes or underestimates, and the danger to which employees would be exposed if the structure should be overthrown.

Now, it is plain that the tests of care which are applied to the •construction of well-known structures, such as houses, scaffolds, "bridges and the ordinary tools and appliances of our various industries, are not adequate or fitting here, since experience has demon•strated the practical requirements and limits of reasonable care respecting them. When, for the first time, the employer passes beyond the range of experience and enters a new field of danger, the extent of the safeguards against which are not exactly known, reasonable care requires that he should provide a reasonable margin of safeguards against this unknown margin of danger.

It is not a question whether new devices and experiments, with the view to the attainment of new factors of economy, efficiency, safety or comfort, are not praiseworthy — this is conceded; but whether they who exploit them in the first instance, and place their «employees in them as in a safe place to labor, and because of the lack of requisite safeguards thus injure their employees, have exercised reasonable care.

This is a question of fact to be resolved upon consideration of all the facts. The court cannot resolve it. The court cannot say, as a matter of law, that when the requisite amount of care was known by the company to be unknown, the company used all that was requisite. It may be that the company used all that it knew to be requisite. But the company knew that it did not know what was actually requisite, and hence it knew that if it only used all that it knew to be requisite it was liable to fall short in respect to the unknown quantity. Hence, it was its duty to do more than its actual knowledge of what was requisite suggested, and to make reasonable provision against the unknown. If it did not do this, it failed in reasonable care. Whether it .so failed was a question for the jury. The court cannot assume to know the unknown, and it is for the jury to draw the true inference of fact from the evidential facts, some of which point to one conclusion and others to another. To say that the jury is unreliable in such cases is to attack the system.

The verdict is very large — so large, indeed, as to suggest the idea that it is due in part to the supposed wealth of the defendant, and, therefore, to that extent excessive.

I advise that it be reduced to $15,000, and that the order be :

Order affirmed, with costs to abide the event, unless the plaintiff stipulate within twenty days to reduce the verdict to $15,000, in which case the order is reversed and the verdict is reduced to $15,000, and judgment for that amount directed thereon, with costs below, but not of this appeal.

All concurred, except Putnam, J., not sitting, and Herrick, J., dissenting in opinion.