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"Q. For how long before? A. Two-possibly three weeks.

"Q. What condition was it in? A. I considered it in very poor condition. "Q. Explain wherein it was in poor condition? A. When they had a load on a rather heavy load-it would slip.

"Q. If it was in good condition would it slip with a load on? A. No, sir; it shouldn't. I wouldn't think so. * * •

"Q. How long before this accident do you suppose it was that you had even passed around in this forge department? A. Several times two or three weeks before.

"Q. The last time was probably two or three weeks before this accident? A. The last time was about a week before.

"Q. Was the crane in the condition that you describe-slipping, the week before? A. It was."

Morrison, a witness for the company, who operated the crane at the time of the accident and had been working in the forge department a considerable time prior to its occurrence, testified:

"Q. What was the condition that crane was in at the time of this accident? A. It was in perfect condition. *

"Q. Did you have any difficulty for a week before this accident, or at any time before this accident, with regard to not being able to hold a load on this crane? A. No, sir. *

"Q. Hadn't it been slipping when you had a heavy load on for three weeks before that? A. It never did. *

*

"Q. At the time Mr. Weisser was injured, will you just state what you were doing? A. We were unloading a car of steel, and we had taken one lift out of the car and placed it in the mill, and was taking another lift out and was placing it down on top of the other pile. The steel was all over snow and ice, and, when I lowered, I seen the chain was going to foul, and I held the load until he got some sticks to put under it. He motioned to lower, and I didn't lower because I saw he was in a dangerous position. He motioned a second time and still I didn't lower. He motioned a third time and I lowered, and the bottom pile kicked out and caught his leg.

"Q. You had control of the crane all that time? A. Yes, sir.

"Q. How long do you suppose you held that load there? A. I held it afterwards until they came back from the office and the hook-ons came back, and we lowered it on the same pile.

"Q. The same load? A. Yes, sir.

"Q. Was it the load that injured Mr. Weisser's leg, or was it the kicking out of the material you had already dumped? A. The kicking out of the material already dumped."

There was thus a direct conflict between Morrison and the plaintiff and his witnesses touching the condition of the crane at and before the time of the accident. We do not think that the fact that just after the accident the second crane load was raised and held suspended for some time necessarily excludes the idea that a slipping occurred immediately before the accident. Morrison is the only witness who testified that there was no slipping at the time of the accident. The evidence on the part of the company as to the condition of the crane for some time previous to the accident is by no means conclusive or even satisfactory. Aside from Morrison and the physician who attended the plaintiff, there were only three witnesses examined, Neylon, Antes, and Corcoran. Neylon was the general foreman of the forge department of the company. He testified:

"Q. What do you have jurisdiction over? What are your duties? Just state them generally as general foreman of the department. A. My duties are general supervision of all the work within my department.

"Q. Would you have anything to do with the operation and maintenance of the cranes in your department? A. That's under another department, but they put men in there to handle my work for me. * * *

"Q. Do you know what the condition of this crane was with reference to being in proper repair? A. I couldn't answer that, as I didn't go into the details of the repairs. I have heard it was in first-class condition. That would come under the electrical department."

Antes, who was the foreman of the electrical department of the company, testified:

"Q. You were foreman at the time Mr. Weisser was injured? A. Yes, sir. "Q. What is your system down there with reference to the repair and maintenance of the cranes? A. The crane operator, coming on duty there morning or night, is to examine his crane thoroughly, and see that it is well oiled, and, in case everything is not as it should be, he is to report it to the repairman before he moves it.

"Q. If there is a report of that kind, does the repairman go to work right away on it? A. Yes, sir.

*

"Q. If that crane had been out of order, would you or would you not have known it? A. Yes, sir.

"Q. You would have known it because the craneman would have reported it? A. Yes, sir.

"Q. Your inspection of the cranes was done by the cranemen? A. Yes, sir; he usually inspected the cranes moved and reported to the repairmen.

"Q. The cranemen were the inspectors? A. Not altogether. We have inspectors that have nothing else to do but go around and inspect the cranes, and require them to thoroughly inspect all our cranes at least once a week.

"Q. If this crane had been out of order, and it had been slipping with a heavy load on, it was the duty of that craneman to ascertain that fact by an examination and report it to you? A. To the repairman.

"Q. He is supposed to report to the repairman who has somebody have it done? A. Yes, sir.

"Q. Wouldn't you be the man he would report to? A. If he couldn't get the repairman-called the chief repairman. All reports went to him.

"Q. You said you would have known it if it was out of order? A. I would. "Q. It might have been out of order and you not know of it? A. The repairman kept reporting to me.

"Q. If the repairman wouldn't report it to you, you would not know it? A. No; I wouldn't.

"Q. You made no examination of it yourself? A. If it was a bad case, I did.

"Q. You don't know anything about this particular crane that Morrison was running that day? A. I didn't hear of it directly that day; no, sir."

Corcoran, who was chain inspector of the company, testified:

"Q. Were you acting in that capacity in February, 1907? No, sir; I had an assistant at that time and I was doing the office work in connection with helping him. He done all the inspecting himself.

"Q. Do you mean inspecting the chains that are attached to the cranes?' A. The hook-on chains and the drum chains.

"Q. Did you personally know anything with regard to the condition of this crane in which Mr. Weisser was injured? A. No, sir; nothing more than our reports. I would like to state in that connection with my office work I took all the crane delays

"Q. That is not in answer to my question. A. Well, as far as I know, nothing."

No crane inspector was produced by the company to testify as to the actual condition of the crane at and before the time of the accident. There was evidence strong enough to be submitted to the jury that the

crane was in an improper and defective condition at that time and that by reason of such condition a slipping occurred which permitted the second crane load to come in contact with the first in such manner as to cause the injuries complained of, and, further, that such defective condition of the crane had continued for such a length of time as to warrant the jury in charging the company with notice thereof and with responsibility for failure to repair it before the time of the accident. While it must be conceded that the case made by the plaintiff was not a strong one, we think, for the reasons above given, that there was no error in refusing a binding instruction for the defendant and in denying the motion for judgment non obstante veredicto.

The judgment below must be affirmed, with costs, and it is so ordered.

PATTERSON et al. v. ROBINSON BROS. & CO.

(Circuit Court of Appeals, Third Circuit. July 6, 1910.)
No. 49 (1,179).

1. TRIAL (§§ 329, 331*)-SUFFICIENCY OF Verdict-RESPONSIVENESS TO ISSUES. Plaintiffs sold a clay works plant on leased land to defendants, and gave possession, also contracting to sell defendants the sewer pipe and fittings on hand at a stated price for each grade; the contract providing that, in the event of a disagreement as to the grade, each party should select an arbitrator and the two should fix the grades, but before acting should also select a third arbitrator, who in the event of their disagreement should make a decision, which should be final. Plaintiffs brought an action to recover for the pipe and fittings, which it was alleged defendants had taken and disposed of without any agreement as to the grades, and also the value of other property and materials left on the premises, valued at over $200, which it was alleged defendants had converted to their own use. Held, that a verdict finding "for the defendants on the ground that in the opinion of the jury the plaintiffs did not make proper effort to agree upon a third arbitrator to appraise and value the sewer pipe sued for, as provided in the agreement on which suit is brought," was insufficient to support a judgment, since it made no disposition of the issues as to the other property sued for, upon which evidence was introduced, and was inconclusive and indefinite and ineffectual as to the issue passed on; there being no provision of the contract requiring the parties to take any action toward selecting a third arbitrator, which was the only ground on which it was based.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 774-783; Dec. Dig. §§ 329, 331.*]

2. APPEAL AND ERROR (§ 264*)-RECORD-PresentATION OF GROUNDS OF REVIEW-VERDICT.

A verdict is a part of the record, and no exception is necessary to support an assignment of error raising the question of its sufficiency.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 15331535; Dec. Dig. § 264.*]

In Error to the Circuit Court of the United States for the Middle District of Pennsylvania.

Action by Luther M. Patterson, Joseph C. Lukens, Emily I. Yerkes, and Thomas Robinson, doing business as L. M. Patterson & Co., For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

against Robinson Bros. & Co. Judgment for defendant (159 Fed. 303), and plaintiffs bring error. Reversed.

T. C. Hipple and A. H. Coggins, for plaintiffs in error.

C. La Rue Munson, for defendant in error.

Before BUFFINGTON and LANNING, Circuit Judges, and BRADFORD, District Judge.

BRADFORD, District Judge. Luther M. Patterson, Joseph C. Lukens, Emily I. Yerkes and Thomas Robinson, doing business as L. M. Patterson & Company, the plaintiffs in error, brought an action of assumpsit in the court of common pleas of Clinton County, Pennsylvania, against The Robinson Brothers and Company, a corporation of Ohio. The suit was duly removed to the court below and there tried before a jury, which after the delivery of the charge of the court returned the following verdict:

"Now, to wit: June 19, 1907, the jury find a verdict for the defendants on the ground that in the opinion of the jury the plaintiffs did not make proper effort to agree upon a third arbitrator to appraise and value the sewer pipe sued for, as provided in the agreement on which suit is brought."

Motions for a new trial and in arrest of judgment were denied and judgment on the verdict was entered for the defendant. There are many assignments of error, of which it is necessary to consider only the last two, as follows:

"The court also erred in receiving and taking from the jury their written verdict in the form it was rendered and in discharging the jury thereafter from further consideration of the cause; said verdict being inconclusive, indefinite and ineffectual and not covering or disposing of all the issues or questions involved in the case, and submitted to the jury. This verdict as rendered by the jury, received by the court and filed in this case is as follows: 'Now, to wit: June 19, 1907, the jury find a verdict for the defendants on the ground that in the opinion of the jury the plaintiffs did not make proper effort to agree upon a third arbitrator to appraise and value the sewer pipe sued for as provided in the agreement on which suit is brought.'"

"The court also erred in directing judgment to be entered and in entering judgment for defendants on said verdict; after overruling plaintiffs' motion for a new trial."

The plaintiffs on and for some time prior to December 16, 1901, were engaged in manufacturing and selling clay sewer pipe, fittings and other clay products in Lock Haven, Pennsylvania, and in the conduct of their business occupied certain premises leased to them by the Lock Haven Clay Works, and at the above mentioned date had on the premises a large quantity of manufactured clay sewer pipe and fittings and other stock for the purposes of their business. It being the intention of the plaintiffs and defendant that the latter should acquire the right to occupy under lease the premises and also the ownership of the manufactured pipe and fittings, an agreement in writing was entered into December 16, 1901, between the plaintiffs as parties of the first part and the defendant as party of the second part in which, among other things, it was provided as follows:

"Party of the second part further agrees to pay, and the party of the first part agrees to accept for all of the manufactured goods now on hand at the

works in Lock Haven, Pa., the following rates and prices. No. 1 pipe and fittings at 872 per cent. discount, No. 2 pipe and fittings at 922 per cent. discount. Terms of payment of the above shall be, note of party of the second part, at three months without interest, said note to be dated January 1st, 1902. In the event of any disagreement arising between the parties of this contract as to the grade of pipe and fittings now on hand at works of party of the first part, the same shall be settled by arbitration in the following manner. Each of the parties shall select an arbitrator and these two arbitrators shall adjust and fix the grade of the pipe and fittings between themselves and render their award in writing, and at the time of their appointment, the two arbitrators shall, however, before examining said pipe and fittings select a third arbitrator, who in the event of a disagreement between the two arbitrators first selected shall then be called in and the decision of the third arbitrator shall then be final between the two parties hereto."

A day or two after the execution of this agreement possession of the premises and the manufactured pipe and fittings was delivered to and accepted by the defendant, who it is alleged in the plaintiffs' statement of claim thereafter controlled and disposed of the pipe and fittings as its own property without reference to the provision in the agreement touching arbitration in case of disagreement as to the grade of such pipe and fittings, whereby the defendant waived any such arbitration and became liable to pay to the plaintiffs the full contract price of the pipe and fittings at the time and in the manner specified in the agreement. The plaintiffs in their statement of claim set forth that at the time the defendant took possession of the premises in question there were thereon certain articles and supplies belonging to the plaintiffs, consisting of a car load of salt worth $90, a car load of lumber worth $70, two barrels of oil worth $30, and a typewriter worth $50, which the defendant thereafter used in its business and for which it promised but failed to pay the plaintiffs. The plaintiffs adduced evidence in support of these various items with the exception, possibly, of their claim to be paid for the typewriter. The seventh point presented by the defendant for instructions was, "The defendant is not liable for the oil, lumber and salt claimed for in the plaintiffs' declaration," but the court below said, "The seventh point I refuse without reading." The sale of this personal property was not effected under the agreement of December 16, 1901, and no provision for arbitration was applicable to it. The arbitration clause did not provide that the parties to the agreement or either of them should choose or agree upon or have anything to do with the choice of a third arbitrator. On the contrary, it expressly directed that, in the event of disagreement between the parties as to the grade of pipe and fittings:

"Each of the parties hereto shall select an arbitrator and these two arbitrators shall adjust and fix the grade of the pipe and fittings between themselves and render their award in writing, and at the time of their appointment, the two arbitrators shall, however, before examining said pipe and fittings select a third arbitrator, who in the event of a disagreement between the two arbitrators first selected, shall then be called in and the decision of the third arbitrator shall then be final between the two parties hereto."

The third arbitrator was to be chosen solely and exclusively by the two original arbitrators and not by the parties to the agreement or either of them. The verdict for several reasons cannot support a

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