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November 24, 1965

William T. DEMPSEY and Anna M. Dempsey, Plaintiffs,

The opinion of the court was delivered by: HOLTZOFF

 This is an action for personal injuries. As the trial has been without a jury, the Court has separated the issue of liability, reserving the issue of damages to be tried later in the event that the Court reached the conclusion that the defendant was liable to the plaintiff.

 The male plaintiff was a pile driver employed on a construction project at the corner of 12th and E Streets in the Northwest section of Washington. The project was then in the excavating stage. On March 27th, 1962 the plaintiff's employer, who was the contractor erecting the building to be located at the site, rented a crane from the defendant, which was a concern in the business of renting and operating cranes for others. The crane arrived early in the morning of that day and was moved on the site of the excavation. The contractor's foreman directed the crane operator to move a welding machine that was located on the site and that apparently was interfering with the progress of the work.

 The crane operator and his assistant proceeded to lift the welding machine by means of the crane, to shift it to a different location, and to let it down in the new place indicated. Four pile drivers, including the plaintiff, were holding the machine, each of them holding one corner, in order to prevent it from twisting. Just as the welding machine was about to come to rest in its new location, an auxiliary jib attached to the boom broke loose, fell, and hit and struck two of the pile drivers who were holding the corners of the machine. One of them was killed and the other, who is one of the plaintiffs in this action, was seriously injured.

 The male plaintiff seeks to recover damages from the crane operator for the injuries sustained by him. The second plaintiff is his wife, who sues for loss of consortium.

 At the outset it is necessary to summarize briefly the applicable rules of law of negligence. The defendant was not an insurer of the safety of his apparatus or of anyone coming in contact with or close to it. On the other hand, the defendant was under a duty to use due care in connection with the apparatus, such care as would be used by a prudent man under similar circumstances and conditions. Failure to use such due care is negligence, and if the negligence is a proximate cause of an injury to someone, the injured party may recover damages from the defendant. What constitutes due care under any particular set of circumstances depends on the risk involved and the hazards connected with the apparatus or activity in question. The degree of care that must be exercised by a person in charge of any apparatus depends upon possible consequences of negligence.

 It is claimed in behalf of the plaintiffs that the defendant was negligent in two respects: first, in that he left the auxiliary jib suspended from the boom at a time when the auxiliary jib was not in actual use; and, second, in that the 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 ...

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