means by which the jib was suspended and the apparatus which attached it to the boom were unsafe. Each of the two charges must be analyzed separately.
The operating member of the crane was a boom about 60 feet long, which could be shifted horizontally and lifted vertically, being raised or lowered at different angles. Attached to the boom was an auxiliary jib about 30 feet long. The purpose of the jib was for use as an extension piece, presumably for tasks for which the boom was not long enough.
It is claimed in behalf of the plaintiffs that it was negligence to permit the auxiliary jib to remain suspended from the boom when the boom was in operation but the jib was not in actual use, and that the safe practice was to detach the jib from the boom under those circumstances and to lay it on some supports to one side. There were expressions of opinion to that effect on the part of some witnesses. The Court reaches the conclusion, however, that the plaintiff has not sustained by a fair preponderance of the evidence the contention that there was any negligence in the failure to detach and remove the jib at the time when the boom was operating merely because the jib was not in actual use at that particular moment.
The second charge of negligence, however, requires greater consideration. That charge is that the means by which the jib was suspended from the boom were unsafe and that this lack of safety caused the accident. In considering this charge of negligence it is necessary to examine the apparatus in detail.
The boom was of metal latticework construction, so to speak, as was also the jib. Two slings were attached to the jib by which the jib was suspended from the boom. In order to hold the jib in place the slings were inserted through apertures in the metal framework of the jib and through similar apertures in the metal framework of the boom. When the boom was raised from a horizontal position, one of the two slings would be above the other. The slings were spaced in such a way as to hold the jib in place. Each sling consisted of a cable ending with a metal hook, one hook being at each end of the cable. The hooks were open at the bottom. They were not closed or fastened in any way. The hooks were suspended or placed on the framework of the boom, thus holding the jib in attachment to the boom.
The accident happened in the following manner. While the boom was at an angle and slowly setting the welding machine on the ground, one of the hooks on the upper sling somehow or other slipped from its connection. This, in turn, increased the load on the lower sling and the lower sling broke. The jib then fell, striking two of the men, as heretofore stated.
There was also in existence an alternative apparatus for attaching the jib to the boom. It consisted of shackles connected together, the shackles being at each end of the sling. In other words, the sling would form a closed loop instead of ending with an open hook at each terminus.
The evidence showed that the apparatus employed in this case was in wide use by the industry at the time of the accident and prior thereto, and, further, that some of the largest concerns in the crane renting business used apparatus of this type. On the other hand, there was also evidence that the alternative apparatus was available and had been in actual use, although on a smaller scale than the one involved in this case. The component parts of the alternative apparatus were readily available in hardware stores and were not expensive.
The slings connecting the jib with the boom are not standard equipment. They are not furnished with the crane, but each crane owner fabricates his own. In this instance the testimony is that the defendant made these slings in its own shop.
Two expert witnesses were called in behalf of the plaintiff. One was Charles Greene, who is the Director of the Industrial Safety Division of the Minimum Wage and Industrial Safety Board of the District of Columbia. At the time of the accident he was connected with the Industrial Safety Division in a subordinate capacity and in the course of his employment personally investigated the accident. He testified that, upon investigating the accident, he found that one of the two slings had become dislodged and caused the second one to slip or break. He expressed the opinion that the apparatus used for suspending the jib from the boom in the instant case was unsafe because of the open hook arrangement, since an open hook may slip from its mooring. His view was that the shackle arrangement, as he called it, shown in the alternative apparatus, would provide the necessary safety for anything suspended from it. He also testified that he had seen the alternative arrangement in use on many occasions prior to the date of the accident.
The other expert witness was Professor Donald Marlowe, the Dean of the School of Engineering and Architecture of Catholic University. He testified that the apparatus used for carrying the jib in this instance was unsafe and that safety required that the hook should not be open. In his opinion the principal lack of safety lay in the fact that the hook was open and therefore could slip or become dislodged in case of vibration and other possible incidents. He further expressed the opinion that a safe apparatus for the purpose would be a cable with two shackles, one at each end, which would be connected in such a way that there would be no open space between them. He testified that shackles and the other components of the apparatus that he deemed safe were available and were standard equipment as far back as 1941.
In addition, he expressed the view that the specific apparatus used in this case was not properly fabricated, which enhanced its lack of safety. Thus, he testified that the hook was made out of iron plate, whereas shackles are fabricated of forged steel and that forged steel is a safer material for the purpose than iron plate. He also testified that the cable should have had what is known as a "thimble", in order to keep it from fraying, and that there was no such member in this instance. Finally, he called attention to the fact that the sling had only a single clamp near each hook, whereas in his opinion there should have been at least two or possibly even three. He concluded, however, that the basic defect was the open hook.
As has been stated, the evidence clearly shows that the apparatus of the type used in this instance was the prevailing apparatus employed in the industry at the time of the accident, although the alternative and the safer apparatus was also utilized, but to a much lesser extent. The fact that a particular apparatus or method is used by the industry is admissible in evidence on the issue of negligence, but it is by no means conclusive. Thus, in Wabash Railway Co. v. McDaniels, 107 U.S. 454, 461, 2 S. Ct. 932, 938, 27 L. Ed. 605, the Supreme Court stated:
"A degree of care ordinarily exercised in such matters may not be due or reasonable or proper care, and therefore not ordinary care, within the meaning of the law."
In the case of Texas & Pacific Railway Co. v. Behymer, 189 U.S. 468, 470, 23 S. Ct. 622, 623, 47 L. Ed. 905, the Supreme Court stated:
"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not."