Appendix — Cauldwell-Wingate Co. v. Person
Supreme Court brief1951
Ask Donna
What actually matters in this document.
Text
¥
APPENDIX
Excerpts of Testimony of Richard John Davies.
(471) Ricuarp Joun Davies, a witness called in be-
half of the plaintiff, being first duly sworn, testified as
follows:
Direct Examination by Mr. D’ Agosto:
Q. Mr. Davies, where do you reside? A. Fort Lee, New
Jersey.
Q. What is your occupation? A. Electrical construc-
tion engineer.
Q. Were you employed by the defendants Cauldwell-
Wingate and Poirer & McLane in 1942 and 1943, at Camp
(472) Shanks? A. Yes.
Q. In what capacity? A. Electrical superintendent.
Q. From when to when were you employed at Camp
Shanks by the general contractors? A. In October 1942
to July 1943.
* * * * * *
By Mr. D’Agosto:
Q. When did you leave the camp, Mr. Davies, mention-
ing the month, the day and the year? A. July 24, 1943.
Q. Can you tell us briefly what your duties were at the
camp as the employee of Cauldwell-Wingate and Poirer
& (473) McLane? A. Well, I was in charge of the elec-
trical installations for the entire camp.
Q. Now, who is your immediate superior? <A. Mr.
Heintze.
Q. And what, if any, instructions or orders did Mr.
Heintze give you to transmit to others regarding the out-
side aerial electrical distribution work at Camp Shanks?
A. Well, I would be instructed to—
Q. Wait, now—
Mr. Evans: I am not objecting.
2
Excerpts of Testimony of Richard Davies.
A. (Continuing) I would be instructed to blaze a trial
for the Port Chester Electric Company.
Mr. Evans: Let us have that again.
The Witness: Blaze a trial.
Q. And by blazing a trial what do you mean? A. Well,
we were in virgin territory. It was virgin area, trees,
no roads; I had surveyors under my supervision; and we
staked out the pole line for the contractor.
Q. And in blazing a trail who would attend to the blaz-
ing of the trail, as you call it? A. We did.
Q. By ‘‘we’’ who do you mean? A. I had a surveyor
by the name of Warren Fay, and he had a party of two
or three suveyors, and he would receive a sort of plot
plan for me indicating the area to be staked out.
Q. And you directed Warren Fay to go out and blaze
(474) a trail, is that right? A. Yes.
trical installations for the entire camp.
Q. Now I believe you said something about virgin ter-
ritory. <A. Yes.
Q. Can you tell us whether Isabel Road and Heather
Lane—whether that was virgin territory? A. No.
Q. Now, that was existing territory, wasn’t it? A.
That is right.
e * % * Ld *
(475) Q. And was it you who directed Port Chester
to erect the outside aerial electrical distribution system at
the camp? A. Yes.
* * * * * *
By the Court:
Q. When did you first give any instructions to either
Hadley or La Ganza—Stretch, as you call him—when was
the first time that you recall that you gave them any in-
3
Excerpts of Testimony of Richard Davies.
structions with respect to the outside aerial system? (476)
A. I should say a day or two after the contract had been
signed; I think that was some time in October, and I am
not too sure about that.
By Mr. D’Agosto:
Q. What year was that? A. 1942.
Q. What instructions did you give Stretch or Hadley at
that time? A. I don’t remember. I don’t remember the
name of the road, if that is what you want, but they were
directed to start in.
Q. But you did direct them to start in October 1942?
A. Yes.
Q. Now, did you at any time thereafter give Hadley or
La Ganza any instructions? A. Yes.
Q. When? A. From time to time as the areas were re-
quired or the other facilities required electrification.
Q. In other words, as each avenue required electrifica-
tion you gave the orders; is that correct? A. That is
right.
Q. And those orders continued until when? <A. Until
the completion of the camp.
Q. And from whom did you receive those orders? A.
From Mr. Heintze.
Q. Now, were these orders oral or written or both?
A. Both, I would say.
* * * * * *
(478) The Court: But all you were asked is
what instructions did you give to La Ganza and
Hadley with respect to the high tension wires on
poles 1421, 1422, 1426 and 776.
(479) The Witness: I don’t remember giving
any instructions on the installation of the wires.
+
Excerpts of Testimony of Richard Davies.
By Mr. D’ Agosto:
Q. Well, did you give the defendant Port Chester any —
instructions as to the installation of any wires located in [
either area 14 or area 7? A. No, sir.
Q. At no time? A. At no time throughout the camp. —
Q. Whose job was it to see to it that the work sched. —
ules or the work progress schedules of Cauldwel!l-Win. |
gate, Poir & McLane and Port Chester coordinated with
each other? Was that your job? A. Yes.
Q. And what method did you use in determining what
work had to be done the following day in so far as Port
Chester was concerned so that your work and other work
would coordinate with each other? A. Our work did not
coordinate with others. We were requested by the Army
or someone through Mr. Heintze to get this area ready,
and I would pass that information on.
Q. To whom would you pass the information to get the
area ready? A. It might have been through Warren Fay,
the surveyor, Tom Hadley, Port Chester’s man, or
Stretch.
Q. Now, to your knowledge were there any plans and
specifications given by Cauldwell-Wingate and Poirer &
McLane to Port Chester regarding the installation of the
(480) high tension wires in area 14 and 7? A. I don’t
know.
Q. Were there any detail plans or detail specifications?
A. I don’t know.
Q. Did you at any time during the year 1943 tell any
representative of Port Chester in a general way to in-
stall the high tension wires in area 14 and area 7? A. No,
sir.
Q. You did not? A. No; at no time.
Q. Do you remember or do you not? A. I never in-
structed them how to install the wires.
5
Excerpts of Testimony of Richard Davies.
Mr. Evans: I ask to strike that out; that is not
what he was asked.
The Court: Sustained.
Q. Did you ask them or did you instruct them to in-
stall the wires?) A. The information from me to Fay
or to Hadley or to Stretch was that that area was ready
for them; to go in and do the work.
Q. Did you at any time go out into area 14 and area
7 as one of the party for the purpose of conducting a
survey? A. Yes.
Q. And who in that party was there besides yourself?
A. Mr. Fay, the surveyor, and myself representing
Cauldwell-Wingate—I believe Mr. Laschiver and Mr.
Witzman of the Government, and Stretch, and possibly
Hadley or Mr. Eisenstadt, I don’t remember, representing
(481) Port Chester.
Q. When you say ‘‘Stretch’? do you mean Mathew La-
Ganza? A. Yes.
Q. And was he an employee of Port Chester? A. Yes.
Q. And when you say ‘‘Fay’’ do you mean Warren
Fay? A. Warren Fay.
Q. And by whom was he employed? A. Cauldwell-
Wingate.
Q. What was his occupation? A. He was a surveyor.
Q. And by ‘‘Eisenstadt’’ whom do you mean, Maurice
Eisenstadt? <A. Yes.
Q. By whom was he employed? <A. Port Chester Elec-
tric.
Q. Now, do you recall when this party went out on
this tour at the camp? Do you remember the month?
A. I think it was some time in June; I am not too sure.
The Court: What year?
Mr. D’Agosto: 1943.
6
Excerpts of Testimony of Richard Davies.
Q. Do you know whether it was July of 1943? AL]
don't remember.
Q. Now, what, if anything, did this group of men, in-
eluding yourself, do on this tour? A. We cheeked the
distances between poles to determine the length of wire
between the two poles; to determine the hardware on
each and every pole, whether it be a street light, crossarm,
(482) dead-end insulator, pin insulators; all miscellaneous
hardware, ground rods, grounds, transformers—all items
that Port Chester were to be paid for on a unit price basis,
Q. Now, how long did this tour take? A. Offhand |
don't remember.
Q. Approximately?) A. Oh, several weeks; possibly a
month.
Q. Now, by the way, did any member of your party
have a telescope or a pair of binoculars? A. No.
Q. Are you sure of that? A. Absolutely.
Q. What else besides ascertaining the number of pieces
of hardware and the number of feet of wire strung up
on the pole did you or any member of your party do on
this tour?
Mr. Evans: I am going to object as speaking
for any other member of the party except himself.
Q. If vou saw.
Mr. Evans: I object to that.
The Court: Wait a minute.
By the Court:
Q. Was there a representative of Port Chester present?
A. Yes, sir.
Q. And you were the representative of Cauldwell- Win-
gate? A. Yes.
7
Excerpts of Testimony of Richard Davies.
(483) The Court: Overruled.
Both of the defendants were represented at that
survey, and | think, anything that transpired with-
in their hearing and within their sight is admis-
sible.
You may have your exception.
By Mr. D’Agosto:
Q. Mr. Davies, will you answer the question, please?
The Witness: What was it?
(Question read.)
A. That was all.
Q. Didn't any of you conduct an inspection of the
poles?) A. No, not a deliberate inspection. We = actu-
ally saw the condition of the pole and the wires on the
pole but it wasn't for the purpose of examination—
The Court: Objection sustained. Strike it out.
Mr. D’Agosto: The entire answer, your Honor?
The Court: ‘‘but it wasn't for the purpose.”’
From there on.
(. Now, did any member of your party examine the
tops of these poles with a pair of binoculars or with a
telescope? A. No,
Mr. Evans: So far as he saw. | am going to
object to that unless it includes that.
Mr. D'Agosto: I am only asking him what he
saw.
(484) By the Court:
Q. Did you see anybody in the party examine it with
binoculars? <A. No.
8
Excerpts of Testimony of Richard Davies.
Q. Did you see anybody in the party climb any of the
poles? A. No, sir.
By Mr. D’Agosto:
Q. Were there any pole tops—were there any climbing
inspections conducted by you or any member of your
party in your presence during this tour? A. No.
Q. Now Mr. Davies, will you look at Plaintiff’s Ex-
hibit 1 and look at these four poles, 1426, 1422, 1421, and
776, and then read the legend? A. 1422 and 1421 are
indicated as existing poles, and 1426 is indicated as an
existing pole.
Q. How about 776? A. That was a new pole.
Q. Now, can you tell us who staked out the area in
which pole 776 was to be installed? A. Warren Fay.
Q. Who was Warren Fay employed by? A. Cauldwell-
Wingate.
Q. And who installed pole 776? A. Port Chester Elec-
trie.
Mr. D’Agosto: Your witness.
Cross Examination by Mr. Mansdorf:
Q. Mr. Davies, you stated just now, a moment ago,
that you gave instructions to Mr. Hadley, is that right?
(485) <A. That is right.
Q. Do you remember whether you gave any instructions
to Mr. Hadley pertaining to pole 1422 at the time of its
installation, at the time of the installation of the wires
upon it by Port Chester? A. No.
Q. Now, at the start of your job, Mr. Davies, it was
your duty primarily to see that all the various trades,
such as carpenters, plumbers and the like, were provided
with temporary lighting; is that right? A. That is right.
9
Excerpts of Testimony of Richard Davies.
Q. And thereafter you received plans for certain areas
in which work was supposed to be done, is that right?
A. I would say they were sketches, not plans.
Q. In the beginning there were no detail plans and
no detail specifications. Let us understand one another.
A. Yes.
Q. And from time to time you received detail plans
(486) or sketches? A. Sketches.
Mr. D’Agosto: How about detail plans?
The Witness: No detail plans. Sketches.
Q. In other words, there were no such things as detail
plans?’ A. There might have been but I never had them.
Q. You never had them? A. I never had them.
Q. And if there were, you would have them? A. |
don’t know if I would have them or not.
Q. Well, it was your job to see that the electrical con-
struction was made in accordance with those detail plans
or the plans and specifications, is that right? A. That
is right.
Q. And according to the contract the National Elec-
trical Safety Code was also included in those plans and
specifications? A. Yes, I suppose so.
Q. Not you suppose so, That is the fact? A. I never
had a copy of the contract or the specification. I had a
general specification that applied to every Army camp
in the United States.
* * * * * *
(490) Q. Now, you stated before that you blazed a trial
at Camp Shanks; and you also stated that you used to
receive sketches from time to time from the architect en-
gineers, is that right? A. We probably prepared the
sketches ourselves. Mr. Fay probably prepared the sched-
ules from some sort of a preliminary drawing provided by
the architect engineer.
10
Excerpts of Testimony of Richard Davies.
Q. By the architect engineer, who do you mean? A,
Tuttle, Seeley, Place & Raymond.
Q. Tuttle, Seeley, Place & Raymond? A. Yes.
Q. And since that was virgin territory, as you stated
before, a representative of Tuttle, Seeley, Place & Ray-
mond was up there, is that right? A. I never went to
visit any of the sites with any of their representatives. I
never had anything to do with them at all.
Q. Well, is it not a fact that representatives of Tuttle,
Seeley, Place & Raymond actually accompanied the sur-
veyors out in the field? A. Not our surveyor. The sur-
veyors for the prime contractors, road department, sewage,
water, roadways.
Q. By ‘‘our surveyors’? you mean Cauldwell-Wingate
(491) surveyors, is that right? A. Yes, but not Warren
Fay.
The Court: Just a minute. Let us get this
straight.
By the Court:
Q. Did the prime contractors have various departments,
one in charge of electricity, one in charge of roads, another
in charge of sewage, another in charge of buildings? A.
Yes.
Q. And those that went in with the layout of ground,
such as the electrical people and the road people and the
sewage people—did each department have their own sur-
veyor? A. Yes.
Q. And Warren Fay was a surveyor with the electrical
division? A. Yes.
Q. Did the representative of Tuttle, Seeley, Place &
Raymond—did their representatives ever go out with any
of the surveyors from the electrical division? A. No, sir;
at no time.
* * * * * *
BOO Ts Sam
11
Excerpts of Testimony of Richard Davies.
(492) Q. Now, Mr. Davies, did you receive any instruc-
tions orally from a representative of the War Department?
A. Through Mr. Heintze.
Q. Did you ever at any time receive directions from a
representative of the War Department directly? A. No.
(493) Q. Did anybody in the War Department or the
Corps of Engineers’ office ever tell you what they wanted
done on the high tension wire? <A. No.
Q. Did anybody in the War Department tell you that
they wanted something corrected, personally, orally? A.
They probably had, yes.
Mr. D’Agosto: Who is ‘‘they’’?
Q. Well, Mr. Laschiver? A. Mr. Laschiver and Mr.
Witzman.
Q. That is correct. Did Mr. Laschiver ever tell you that
he wanted certain things done on the aerial electrical dis-
tribution system? A. I don’t remember of any particular
cases or case.
Q. Did Mr. Witzman ever tell you that he wanted some-
thing done or something undone on the aerial electrical
distribution system? A. Not that I remember. There may
have been some sort of general comment or talk but noth-
ing that they demanded or insisted be done. No direct
orders, in other words.
Q. Nothing that they demanded? A. No. Orders would
have to go through Mr. Heintze if they were orders.
Q. Now, is it not a fact that the instructions that you
spoke about were constant inspections, is that right? In-
spections going on all the time? A. Not by me or anyone
in my department.
* * * * ~ *
(495) Q. Now, there were times that dispute occurred
between yourself and the sub-contractor as to how some-
thing should be done— A. No, sir.
eet ea ai asad A ES 7
;
t
Sais a DPW BAL LE EE A OETA:
12
Excerpts of Testimony of Richard Davies.
Q. —with regard to the electrical system? <A. No, sir,
Q. Were there ever any times when a dispute arose as
to the method of doing something on the aerial electrical
distribution system between yourself and the War De-
partment? A. That might have been. It might have been
because of some natural obstruction, a tree or a boulder
or something that the Government wanted to save for
camouflage purposes, we would have Mr. Laschiver’s per-
mission to divert the pole line.
Q. And if there was a difference of opinion, in such an
instance the ultimate determination was made by whom?
A. The War Department.
Q. So you had to take their orders? A. That is right.
* * * * * *
(496) Q. Isn’t it a fact that you had three men out in
the field who were checking on Port Chester’s work? <A.
No, sir. Warren Fay wasn’t qualified to check their work.
He was a surveyor. He was directly under my supervision.
A man by the name of Bill Leary had nothing to do with
the electrical distribution. He was the inside wire inspec-
tor; he watched the work that was going on in the barracks.
And the third man, Mr. Snarky, was in charge of the office,
the maintenance office. He received all the calls for emer-
gency lights and power, and what not.
* * * * * *
(501) The Witness: I did not prepare a punch
list, your Honor, at the time of the survey. I had
nothing to do with punch lists. The War Depart-
ment or the Army prepared the punch lists. They
‘alled them missing items or (502) omissions or
what might have happened to a pole to our atten-
tion.
The Court: Did you know what would be listed
on the punch list at the time of the survey?
13
Excerpts of Testimony of Richard Davies.
The Witness: No.
The Court: I don’t mean the actual items listed.
Did you know what the War Department would list
on a punch list?
The Witness: No, I did not.
* * * * * *
(505) Q. So that when you examined the pole and if
you found a defective condition on that pole not in ac-
cordance with the National [Hlectrical Safety Code, it was
your duty to set that forth as improper work? A. I did
not inspect, make deliberate inspections. I depended on
the War Department to give me this punch list.
Q. But you were present at these inspections, is that
correct?) A. No, not during inspections. Only at the sur-
vey.
Q. You were present at the survey? A. Right.
Q. Did you at any time take issue with the War De-
partment and advise them that their contention that some-
thing was defectively constructed was not correct? A. I
don’t remember.
Q. It was your job to see that this electrical installation
was made properly, is that right? A. And aecceptable—
Q. And acceptable by the War Department? A. Yes.
Q. Otherwise you would not be doing your job properly,
is that right? <A. Yes.
Q. So that when you received this punch list that (506)
required correction over here, is that right? <A. Yes.
Q. There is no doubt about that? A. Yes, that is right.
Q. And when this was given by you to Port Chester
something had to be done about these poles? A. Yes.
Mr. D’Agosto: What is the answer, Mr. Davies,
so the stenographer can get it?
The Witness: I said yes.
14
Excerpts of Testimony of Richard Davies.
Q. Did you or anybody under your supervision see that _
this work was attended to? <A. No.
Q. So as far as you know, you would tell this Court and
jury that you don’t know whether that was even corrected?
A. It must have been, otherwise we would never receive
the O.K. from Mr. Laschiver, and Colonel Musgrove made
the final inspection. ;
Q. Who? A. Colonel Musgrove.
Q. It must have been corrected and accepted, is that
right? <A. Yes, sir.
(508) By the Court:
Q. Mr. Davies, tell us, if you will, the distinetion, at
least as you understand it, between an inspection and a
survey, and see if we understand it. A. An inspection in
my opinion would be something deliberate; you would go-—
over the thing with a fine comb. You would look to see if
the. bolts had so many threads; if the washers had been
applied; if the insulator bore the manufacturer’s name,
for the specified Joslyn insulators, and all that. That
would be a thorough inspection, your Honor. But a survey,
we knew there were so many feet of wire after determining
the distance between the poles; we knew there were so many
crossarms, transformers, street lights, guys, and so forth.
That was part of the survey.
Q. In the respect of the time element in the performance
of the work, is there any distinction in your mind between
inspection and survey? Do I make myself clear? A. No,
you don’t.
(509) Q. Well, the work progressed. A. Yes, sir.
Q. Certain observances—to use a general phrase to
cover them all—certain observances were made during
the progress of the work? A. That is right.
15
Excerpts of Testimony of Richard Davies.
Q. Certain observances was made at the conclusion of
the work? A. Yes, sir.
Q. Now, is there any distinction in those observances
based upon the time with respect to the progress of the
work that would distinguish them either as inspections
or surveys? A. General observances, your Honor, they
were very casual. By ‘‘general’’, casual, drive through
the areas, if it would be possible to drive through the
areas, to see if the work was progressing in a very
satisfactory manner.
Q. No, you don’t understand my question. I believe
you testified that sometimes you alone or sometimes you
were accompanied by a representative of the War De-
partment, or sometimes you were accompanied -by a rep-
resentative of Port Chester, went out in the field and
observed the work during progress? A. That is right.
Q. Were those observances during the progress of the
work inspections or surveys, or both? A. Inspections.
They were inspections.
Q. They were inspections? A. Yes, sir.
Q. Now, when the whole job was finished a party (510)
made up of a representative of Cauldwell, a representa-
tive of the War Department, one or more representatives
of each, and a representative or more of Port Chester
went out and observed the entire job, is that correct? A.
That is correct.
Q. Was that observance an inspection or a survey? A.
That was a survey.
Q. That was a survey? A. Yes.
Q. Am I to understand, therefore, that the distinction
you mean to imply in your testimony between an inspec-
tion and a survey is that an inspection was made during
progress and a survey was made at the end of the entire
job? A. Yes, sir.
The Court: That is what I wanted to get clear
in the record.
i ats
16
Excerpts of Testimony of Richard Davies.
By Mr. Mansdorf :
Q. Mr. Davies, is it not a fact that when you inspected
this pole you inspected as to the manner in which the —
work was being done, is that right?
The Court: Which pole?
Mr. Mansdorf: 1422.
A. That was part of the survey. No inspection. Sur.
vey.
Q. I thought you stated before that the survey was —
:
. 2
we
i ,
Be
;
uy
merely a tally as to the number of hardware that was :
used? (911) A. That is right, we observed the hardware —
on each and every pole.
Q. So that the inspections were as to the manner of —
construction? A. No. You could see. I mean, it wasn’t —
deliberate to find fault or find out if it had been installed
mechanically or electrically perfect. It was part of the
survey to determine the amount that—
Q. I am talking about the inspection, Mr. Davies, to
see whether it was properly installed, is that right, and
that is how you got your punch list? A. We got the
punch list from the War Department. They made the —
inspections. We did not make deliberate inspections. They
were casual, as I must have testified two years ago or last
year, periodical inspections. They were casual inspec-
tions. You could stand on the road to see if the job
looked right. You didn’t have to go up every pole. You
could see if the poles lined up.
(513) Q. Now, I ask you to refer to Defendants’ Ex-
hibit Q and tell us whether the punch list included in that
exhibit arose as a result of an inspection or as a result
of a survey? A. As a result of an inspection made by
rar
17
Excerpts of Testimony of Richard Davies.
the War Department, not our department. The War
Department.
Q. Did that come about as a result of the time that
you and the War Department and Port Chester went out
to make your final observance? <A. It might have been,
your Honor.
Q. You don’t know? A. I don’t know. We did not.
I, as a representative of Cauldwell-Wingate, did not make
a record of any little minor items that were apparently
overlooked. We left that to the War Department to pre-
pare that list.
* * * * * *
(516) The Court: Did you ever make any in-
spection?
The Witness: No, sir, not deliberate inspections.
Casual inspections, yes.
* * * * * *
(518) By Mr. Mansdorf:
Q. Mr. Davies, were you asked this question and did
you give this answer at the previous trial, again folio
1009:
‘‘Did you inspect the wires for the outside elec-
trical distribution system? A. Yes, I made a peri-
odical inspection.”’
A. That is right, but not at the time of the survey.
There was a periodical inspection made by me. I would
drive through the camp and I would just observe that
the wires were strung and you could tell at a glance if
they were not mechanically perfect.
(519) Mr. D’Agosto: Mechanically?
The Witness: Mechanically perfect.
18
Excerpts of Testimony of Richard Davies.
Q. Now, that survey that you talked about, so that a
we can dispel any doubt in the minds of the jurors— ve
The Court: And the Court.
Q. —and the Court, that was a combination inspection
and survey, is that right? A. I suppose you would call
it that. Probably the War Department made the inspec.
tion and I helped make the survey to establish the quan.
tities.
Q. I don’t want you to suppose. Was that a combina-
tion inspection and survey? A. On my part? I would ~
say it was a survey and the other members of the party —
probably made the inspection because this punch list seems
to substantiate my thoughts along the line that the Gov- —
ernment made up the punch list. We did not make the
punch list.
: 5 anaes
ee mites Sas tt "fs
Biss ot i 5, D
bee as
ee
HS
a
rod
vay
*
.
(523) Cross Examination Continued by Mr. Mansdorf:
Q. Mr. Davies, you are an electrical engineer, is that
correct? <A. Electrical construction engineer. I will
qualify th at.
7 * * * * *
Q. Now I show you Defendants’ Exhibit A in evidence,
and ask you to read the paragraph entitled ‘‘33-04. Gen-
eral description.’’ A. ‘‘Contractor shall furnish all labor
and materials for complete aerial electrical distribution
and street lighting system throughout the area as indicated
on the drawings and as covered herein. (524) All work
shall be done and materials furnished, in strict accordance
with these specifications and in a manner satisfactory to
the Contracting Officer. The latest published regulations
of the National Electric Safety Code shall be considered
as included in these specifications and the applicable re-
AIO NETS 2 SSF Ot AE AP Ce FR RET SS WR ot SE SE REET AN” OTR RAS Pty ings ee ete,
—=— ee
19
Excerpts of Testimony of Richard Davies.
quirements shall be fully and strictly complied with, ex-
cept where otherwise specifically noted.’’
Q. Now, the sub-contractor erected the aerial distribu-
tion system in accordance with plans and specifications
given to it, is that correct? A. As far as I know, he did.
Q. And oral instructions given to it, is that correct? A.
As far as I know.
Q. And it was your job to see that the manner of the
performance of their work was in accordance with the
contract and the specifications, is that right?) A. I sup-
pose so.
6 * * * * *
(526) Q. Now Mr. Davies, you directed the type of
installations at various times on the overhead electrical
distribution system, isn’t that right? A. That is right.
Q. And you directed the manner of its installation too,
didn’t you? A. There were certain occasions, yes.
Q. There is no doubt about that? A. No doubt about
it. I prepared some drawings.
Q. And you also gave instructions to the sub-contractor,
is that right? A. Yes.
(527) Mr. Mansdorf: Will you mark this for
identification, please.
(Marked Defendants’ Exhibit X for identifica-
tion).
Q. Now Mr. Davies, I show you Defendants’ Exhibit X
for identification and ask you if you know what that is?
A. That is a one-line diagram of the camp as built.
Q. And isn’t it a fact that you prepared that diagram?
A. That is right.
Q. And prepared it when? May 1943? A. Evidently,
ves. That is the date. That is true.
Q. And that is a product of your own hand, is that
right? A. Yes.
20
Excerpts of Testimony of Richard Davies.
(528) Cross Examination by Mr. Evans:
Q. I have very few questions. Mr. Davies, the Army —
engineers were on the job all the time while this work
was being done, were they not? A. Yes, sir, they were.
Q. And the head man from the engineering department
that was on the job was Laschiver? A. That is right.
Q. And under him how many men did he have? A. I
don’t remember. I remember one man in particular, Witz-
man.
Q. And there were others too?’ A. Oh, yes, there were.
Q. All right. And Laschiver and Witzman and these
others were on the job while each pole was being rigged
(529) up, were they not? A. As far as I know. ~
Q. And they issued instructions at various times on how
to do it, didn’t they, at the top of each pole? I don’t mean
every pole, but I mean at various times. <A. I don’t know,
honestly, Mr. Evans. I don’t know if they did or not; I
wasn’t there; and I doubt whether they would have the
authority to direct the foreman. 4
Mr. Evans: I ask to strike out from ‘‘doubt’’ on. 2
The Court: Strike it out.
The Witness: Sorry.
The Court: That is all right.
Q. Did they speak to you at various times as to how the
work was to be done by the contractor and tell you to tell
them? <A. I doubt that. There might have been some dis-
cussion. But it would be more or less off the record. It
would be like a little family gathering.
Q. They were supreme? A. Absolutely.
Mr. D’Agosto: Who is ‘‘they’’?
Mr. Evans: The Army.
The Witness: Yes.
21
Excerpts of Testimony of Richard Davies.
Q. Both you and Port Chester had to do what they told
you? A. Absolutely.
Q. That is correct, is it not? A. Yes.
Q. Whom did they give their instructions to if you say
you did not give them direct? You doubt that you (530)
gave them direct to Port Chester; is that what you started
to say? A. To anyone of the Port Chester foremen in
the field.
Q. Did they give them to you or did they give them to
Heintze or who did they give them to? A. I didn’t think
it was necessary, Mr. Evans, at any time to give the men
instructions. They were all qualified linemen as far as I
knew.
Q. Whether you think it was necessary or not, did they
at any time that you know of tell how it ought to be done,
or anything of the kind, or to correct this or change that?
A. I don’t think there was anything of consequence—
Q. I did not ask whether there was a consequence or
not. A. I don’t know any particular item that they would
have to correct the foreman in the field.
(534) Q. Well, I think you told us in the end that it
might have been an inspection on the part of the Army
people, but it was a survey on your part? A. Yes, sir, it
was. :
Q. You, mean by that that the Army engineers who in-
spected were looking to see that everything was properly
done, whereas your interest was only to see the amount of
work to be paid for, is that right? A. That is right.
Q. And the Army being the ones to satisfy, anything
that satisfied them satisfied you, is that correct? A. Yes,
sir.
* * * * * -
(537) Q. I suppose the same thing happened every day
while the work was going on that you would talk with the
22
Excerpts of Testimony of Richard Davies.
Army men about whether some insulation or installation
was proper or all right or not, wouldn’t you? A. Well,
Mr. Evans, I would like, if you don’t mind—I don’t want
to make a speech—
Q. Go ahead. A. I had very little to do with the aerial
distribution. I am not trying to avoid responsibility in ©
any way, but I had quite a few men under me, under my |
command blazing the trial and providing temporary light
and power, and what not, for construction in that (538)
camp. And my job was to get the camp going as far as
electricity was concerned for temporary use.
Q. Now Mr. Davies, here is all I am asking. Did you
from time to time, not just on the final inspection, but
from time to time, talk over with the Army men whether
some insulation was all right or not? A. It wasn’t neces-
sary.
Q. Did you ever, not whether it was necessary? A. I |
don’t remember. ;
Q. You don’t remember? A. No.
Mr. Evans: I think that is all.
Re-direct Examination by Mr. D’Agosto:
Q. Mr. Davies, of course, throughout your duties you
were the representative of Cauldwell-Wingate and Poirer
& McLane in the field, wern’t you? A. That is right.
Q. And you were the only representative in the field as
far as the general contractors were concerned, weren’t you?
Mr. Evans: I am going to object to that. He
mentioned Friday two or three others.
Mr. D’Agosto: What others?
Mr. Evans: Assistants in certain lines.
Mr. D’Agosto: Let us have them.
i i tae tt einen
23
Excerpts of Testimony of Richard Davies.
Mr. Evans: Didn’t he?
Q. Let us have them. Who else besides yourself? (539)
A. Warren Fay, a surveyor, Dan Boskett, a tree surgeon
—Dan Boskett would have about ten men; Warren Fay
would probably have two or three assistants.
Q. But they were all your immediate subordinates,
weren’t they? A. That is right.
Q. You were the top man for Cauldwell in the field,
weren’t you? A. The electrical end, yes.
Q. On the electrical end? A. Yes.
Q. And that embraced the outside aerial electrical dis-
tribution system, didn’t it? A. That is right.
* * * * * *
(547) Q. Did you know Mr. Curley, Mr. Davies? A.
I met him.
Q. Where did you meet him? A. At the camp.
Q. Who was he? A. I believe he was the general fore-
man for Port Chester over the line construction men.
Q. Did you give any orders as to the manner in which
he was to stretch the high tension wires over poles 1426,
1427 and 776? A. No.
Q. Do vou know whether any employee of Cauldwell-
Wingate or Poirer & McLane gave him any instructions
as to the manner in which those high tension lines were to
be strung along those three poles?
Mr. Mansdorf: Objected to.
The Court: He was asked whether he knew
whether any employee—he can answer yes or no
whether he knew.
Mr. Mansdorf: That is correct.
Z
A. No.
Q. No what? A. No one from—
24
Excerpts of Testimony of Richard Davies.
The Court: Strike out the answer. Tell us yes
or no, do you know whether any employee of Cauld-
well-Wingate ever gave anybody any instructions?
The Witness: I do not know.
(555) Q. Well, did you or any employee of the de- :
fendants Cauldwell-Wingate and Poirer & McLane—the
general contractors is all I am talking about now—did _
you or any of your immediate subordinates make an in-
spection as to the manner in which the defendant Port
Chester erected the outside aerial electrical distribution
system at Camp Shanks? A. No.
* & * e * *
(565) Q. Mr. Davies, do you remember the last ques-
tion Mr. D’Agosto asked? A. I don’t.
Q. I will remind you what it was: whether you or
anybody else on behalf of Cauldwell-Wingate ever made
any inspection of the manner in which the work was done: —
by Port Chester; something along those lines; do you
remember that? A. That is right.
Q. And you said no, do you remember that? A. That
is right.
Q. I am going to call your attention to the testimony
you gave on the other trial at folio 1009, page 337: ‘‘Q. |
Did you inspect the wires or the outside electrical dis-
tribution system? A. Yes, I made a periodical inspec-
‘10n,
**Q. Will you please tell us what those periodical in-
spections consisted of? A. I was concerned with the in-
stallation of the new work only primarily.’’ This was
new work, wasn’t it? A. Yes.
Q. ‘‘Q. Yes. A. I went up to make sure that the pole
lines had been installed, that is, the new installation, to
establish that we had proper clearance for sewage, drains,
building clearance, street clearance, and things of that
sort.’” A. That is right.
—
25
Excerpts of Testimony of Richard Davies.
(566) Q. ‘‘I was really concerned about the new in-
stallations; I was not concerned about the old,’’ and so
on.
Mr. D’Agosto: No. Go on, finish it.
Mr. Evans: All right.
Q. ‘‘about the old, or the stuff that the Government
had bought from the Rockland Light & Power Company.”’
Now, you did make that kind of inspections periodically,
didn’t you? A. That is right.
Q. And that was to see how the work was done, not to
see how much would be paid for it, isn’t that so? A.
No, it wasn’t to see how it was done. It was to establish
clearance. We were concerned about clearances between
trees.
Q. You were concerned about other clearances beside
trees and buildings and things of that sort, weren’t you?
A. No. At the time of construction it was my job to
give Port Chester as much help as possible to get the
roads cleared, have the brush removed, rocks, boulders.
Q. But you were concerned about other clearances, such
as the clearances of the wires, weren’t you? A. No, I
wasn’t concerned.
Q. Not at all? A. No, they had qualified men as far
as I knew. It wasn’t necessary for me to follow that
up. They had a general foreman.
(567) Q. You said this bulldog followed it up? A. The
Government man.
* * * « * *
rf S.=z
ee
rea
a
Pta 2 SF
ES
tae
=
ro
x SS
Tx Ve
ees
The
:
Supreme Court of the United States
October Term, 1950
No. 729
CAULDWELL- WINGATE CoMPANY and Porrrer & McLane
CoRPORATION,
Petitioners, Defendants Below, ~
against
Mary E. Person, as Administratrix of the Goods, Chattels ©
and Credits of Wituiam S. Person, Deceased,
Respondent, Plaintiff Below, q
Port CHester ELectricaL Construction Company,
Respondent, Defendant Below. ©
BRIEF OF RESPONDENT, MARY E. PERSON, AS
ADMINISTRATRIX OF THE GOODS, CHATTELS
AND CREDITS OF WILLIAM S. PERSON,
DECEASED, IN OPPOSITION
Louis A. D’Acosto,
Counsel for Respondent.
SuPREME PrintinG Cc., Inc., 41 Murray Street, N. Y., BArctay 7-0349
a=:
oe Se:
EE RAIS TE GS APO ODA eNO HOTS ER CRO 1
ARGUMENT eed See eee eee 3
Point I—Certiorari at bar was denied by this Court,
November 21, 1949, Cauldwell-Wingate Co., et
al. v. Person, 338 U. 8. 886 ..............000- 8
Point II—No question involving the constitution or
the validity of any statute was ever raised in
RN, Ssictladuasenswbeccedusdncne 8
Point I1J—The Supreme Court does not grant cer-
tiorari to the Circuit Court of Appeals to review
evidence and to discuss specific facts. See U.S.
v. dolmaton, B06 U. GB. BaD... ow ccc ccc ccc 9
Point [V—The petitioners do not present any sub-
stantial question requiring review by this Court 9
Point V—lIt is not within the spirit of the Seventh
Amendment to disturb a jury verdict on insub-
I I oie heats icaneunwescsans 10
SRG TELE gE RT 8 IE ene Oe er 10
Table of Cases Cited
Bellavance v. Frank Morrow Co., 141 Fed. (2nd) 378,
Certiorari denied, 322 U. S. 742 .................. 9
Berry v. United States, 312 U. S. 450 ................ 4
Braun v. Buffalo General Electric, 200 N. Y. 484...... 3
Buell v. Utica Gas & Electric Co., 259 N. Y. 443 ...... 3
Burrows v. Livingstone Niagara Power Co., 217 A. D.
es I, WH ck ca cvecnsnancucadc cuss 3
ee sou ce ad whaeded Saweks Ohl bipekeaveus ced 3
a
PAGE
Campo v. Scofield, 301 N. Y. 468 .................05. 6,7
Carlock v. Westchester Lighting Co., 268 N. Y. 345 .. 4
Cauldwell-Wingate Co., et al. v. Person, 338 U. S. 886 8
City of New York v. Penn Steel Co., 206 Fed. 454.... 7
Chicago, Milwaukee & St. Paul R. Co. v. Coogan, 271
Sei We ET iA Sw dNTS Wada REN 5 SHORES SUNS berkwcodx 4
DeHaen v. Rockwood Sprinkler Co., 258 N. Y.350.... 3
Devin v; Gast, GOW. FOI icc cencrcscccscccsss 7
Engel v. Eureka Club, 137 N. Y. 100 ................ 4
Erie R. R. Co. v. Tompkins, 304 U. S. 64 ............ 4,9
Ferrari v. N. Y. C. R. RB. Co., 244 A. D. 182, aff’d 250,
Ee 8s cas <u vias asl ea uanbahs Fee oe Kea kk eas 3
Ford v. Sturgis, 14 Fed. (2nd) 253 ................. 7
Fox v. Western N. Y. Motor Lines, Inc., et al., 232 A. D.
Se UE EW OM A 0556 bn Wise bea ee bees kxe 5
Gelkon Realty Corporation v. Young Women’s Hebrew
Association, 206 U. &. G37 ...... ccc ccccccccsccces 8
Godchaux Co. v. Estopinal, 251 U.S. 179 ............ 8
Gulf M. & N. R. Co. v. Wells, 275 U. 8. 455 .......... 4
Gunning v. Cooley, 281 U. 8. 90 ..........cccccceees :
Hanley v. Central Savings Bank, 255 A. D. 542, aff’d
Se ee Oe Be hivnhnanhGdesavesieerakwewiecsadess 4
Hartford Accident & Indemnity Co. v. Murphy, 158
ee I EE oti kadireunew sind Cineuisveukaes aun 10
Keller v. Brooklyn Bus Corp., 128 Fed. (2nd) 510.... 10
Kuhn v. P. J. Carlin Construction Co., 154 Mise. 892... 4
eo ee 8 | eee 4
MacPherson v. Buick Motor Co., 217 N. Y. 382 ........ 3,7
moartear v. U. B, GIS 0. B. TGF... oc cassccuvcvecces 9
Monument Pottery Co. v. Imperial Coal Corp., 21 Fed.
(2nd) 683, Certiorari denied, 276 U. S. 618 ........ 10
Morhard v. Richmond Light & R. R. Co., 111 A. D.353.. 3
3
;
ESSERE RIAD
PAGE
Pally, et al. v. F. W. Woolworth & Co., et al., 194 Mise.
Eel Ga eeeesanes reek tW OLS Sasa skh eee Bike 5
Palmer v. Hoffman, 318 U. S. 109 .................. 10
Person v. Cauldwell-Wingate Co., et al. 176 Fed.
(2nd) 2B7 ....cceeeececcccecccccecccesecceeese 2, 3, 4
Person v. Cauldwell-Wingate Co., et al. (opinion not yet
reported, R. 619A) ........ 6 cs secre reece eccnceces 4,8
Procopowicz v. 11 West 42nd St., 289 N. Y. 350 ...... 3
Regan v. 825th St. Corp., 287 N. Y.179 ............ re
Robifs +. Well, B71 Bh. F. GOB 6 cic ccccccccnsccsceves +
Rooker v. Fidelity Trust Company, 261 U.S.1114.... 8
Rosebrock v. General Electric Co., 236 N. Y. 227 ...... 7
Schroeder v. City & County Savings Bank of Albany,
ot al., D6T A. DD. BOG 2.0 ccc nccccrcccesesscsesveres 9)
Seamanchuck v. 5th Ave. and 37th St. Corp., 290 N. Y.
Sa EOD ee are I hme weet fe err 4
Statler v. George A. Ray Mfg. Co., 195 N. Y. 478 ..... 3,7
St. Louis and San Francisco Railroad Co. v. Sheperd,
I, Be an k os ckhbedenne cesnensxeseneenaees 8
Thomas v. Winchester, 6 N. Y. 397 ................ 3
Torgensen v. Schultz, 192 N. Y. 156 ................ 7
U. &. v: Johnston, 206 U. GB. FeO oun scence cece csees 9
U. S. v. Socony Vacuum Co., 310 U. 8. 150 .......... 9
Van Loot v. Hilesor, SiG WE. F. GGG onc cccecccsvcves 3
Walters v. Rao Electrical Co., 289 N. Y. 507 .......... 4
Ward v. Iroquois Gas Corp., et al., 233 A. D. 127, aff’d
fe oh: Ree ereer ers ree ee reer yee se 5
Webster v. Richmond Light & Railroad Co., 158 A. D.
Ee ee Rey ee rn ry ee ee yee re ee ere 3
Wilks v. N. Y. Telephone Co., 243 N. Y. 351 ........... 3
a i Se rere rere ree cer ere ces 9
Statutes
See. 130 Decedent Estate Law of New York ........ 1
Seo, 211a, Civil OE NE oxi s deen enesaki res 5
' Supreme Court of the United States
October Term, 1950
No. 729
5
Vv
CaULDWELL-WINGATE © OMPANY and Porrier & McLANE
CoRPORATION,
Petitioners, Defendants Below,
against
Mary E. Person, as Administratrix of the Goods, Chattels
and Credits of Wmimm S. Person, Deceased,
Respondent, Plaintiff Below,
Port Cuester ELectricaL ConstRucTION Company,
Respondent, Defendant Below.
,,
es
BRIEF OF RESPONDENT, MARY E. PERSON, AS
ADMINISTRATRIX OF THE GOODS, CHATTELS
AND CREDITS OF WILLIAM S. PERSON,
DECEASED, IN OPPOSITION
Statement
This action was brought by Mary E. Person, on behalf
of herself and four dependent children, to recover damages
for the wrongful death of her husband, pursuant to Section
130 of the Decedent Estate Law of New York (R. 4a-9a).
There were two Jury trials. The first resulted in a
dismissal of the plaintiff’s complaint and a directed verdict
tril hd Kl eee: & yrs
At RN cs CAE Ay RAO od ROLE
REPRO TIEN SGDIS SG
% bes ON Pritt ge it eas eas NT
2 '
on the defendants’ motion on December 2, 1948 (R. 412.
416).*
On Appeal, the United States Court of Appeals for the
Second Circuit reversed and ordered a new trial as to all
three defendants. Person v. Cauldwell-Wingate Co., et al.,
176 Fed. (2nd) 237. Reargument denied J uly 25, 1949.
Certiorari was denied by this Court November 21, 1949,
Cauldwell-Wingate Co., et al. v. Person, 338 U. 8. 886.
The second Jury trial began April 20th, 1950 and
resulted in a verdict on May 26th, 1950 in favor of the
widow, Mary E. Person, and her four infant children
against all defendants for the sum of $90,000.00 (R. 363a).
Motions by the defendants to set aside the verdict and
for a new trial were denied by the Trial Judge, July 5,
1950 (R. 364a, 365a).
The defendants appealed to the United States Court
of Appeals (R. 366a, 367a). On March 14th, 1951, that
Court affirmed as to the respondents Cauldwell-Wingate
Company, Inc. and Poirier & McLane Corporation and
ordered a new trial as to the respondent Port Chester
Electrical Construction Corp. (R. 619a- 628a).
The respondents Cauldwell-Wingate Company, Inc. and
Poirier & McLane Corporation then petitioned the United
States Court of Appeals for a rehearing which was denied
on April 2, 1951 (R. 631a).
* (Denotes first record filed in this Court November
25, 1949, No. 411.)
ay
a ——————
Argument
1. This case involves the original negligent Construc-
tion and supervision of high voltage electric wires charged
with a deadly current of 2300 volts. This work is in the
category of inherently dangerous instrumentalities ac-
cording to New York Law. See Person v. Cauldwell-Win-
gate Co. et al., 176 F. (2nd) 237, Certiorari denied, Cauld-
well-Wingate Co. v. Person, 338 U. S. 886; Van Leet v.
Kilmer, 252 N. Y. 454; Morhard v. Richmond Light &
R. R. Co., 111 A. D. 353; Webster v. Richmond Light &
Railroad Co., 158 A. D. 210; Buell v. Utica Gas & Electric
Co., 259 N. Y. 443; Braun v. Buffalo General Electric, 200
N. Y. 484; Caglione v. Mt. Morris Electric Light Co., 56
A. D.191; Ferrari v. N. Y¥.C. R. R. Co., 244 A. D. 182, aff’d
250 N. Y. 527; Burrows v. Livingstone Niagara Power Co.,
917 A. D. 206, aff’d 244 N. Y. 548.
2. Responsibility in such cases cannot be evaded by
the contention that the parties sought to be charged there-
with were not in control of the instrumentality at the time
of the accident. See MacPherson v. Buick Motor Co., 217
N. Y. 382; Thomas v. Winchester, 6 N. Y. 397; Statler v.
Ray Mfg. Co., 195 N. Y. 478; Procopowicez v. 11 West 42nd
St., 289 N. Y. 350; Regan v. 825th St. Corp., 287 N. Y. 179;
DeHaen v. Rockwood Sprinkler Co., 258 N. Y. 350; Wilks
v. N. Y. Telephone Co., 243 N. Y. 351.
3. The petitioners Cauldwell-Wingate and Poirier &
McLane were general contractors. The work involved high
voltage lines which are definitely inherently dangerous
instrumentalities. The contractors cannot escape respon-
sibility in such cases in New York. The duty to see to it
that the work is performed properly and to inspect and
supervise it cannot be delegated by the general contractors
to others. It isa non-delegable duty. See Person v. Cauld-
well-Wingate Co., et al., 176 F. (2nd) 237, Certiorari
i
2
*
A)
eA
a
Ua ea eee
Bietaiaiee, HRA TIE a ote
denied, Cauldwell-Wingate Co., et al. v. Person, 338 U. §,
886; Engel v. Eureka Club, 137 N. Y. 100; Rohlfs v. Weil,
271 N. Y. 444; Hanley v. Central Savings Bank, 255 A.D, —
542, aff’d 280 N. Y. 734; Kuhn v. P. J. Carlin Construction —
Co., 154 Mise. 892; Walters v. Rao Electrical Co., 289 N. Y.
907 ; Semanchuck v. 5th Ave. and 37th St. Corp., 290 N. Y.
412.
4. According to New York Law, it is no excuse to
contend that some cause intervened. The test is whether
the intervening cause increased the risk or merely con-
tinued the danger which existed in the defendants’ original
work. See Person v. Cauldwell-Wingate Co., et al., 176 F.
(2nd) 237, Certiorari denied, Cauldwell-Wingate Co., et al,
v. Person, 338 U. S. 886; Person v. Cauldwell-Wingate Co,
et al. (R. 619a, opinion not yet reported) ; Carlock v. West-
chester Lighting Co., 268 N. Y. 345, page 350:
‘Where harmful consequences are brought about
by intervening and independent forces the opera-
tion of which might have been reasonably foreseen,
there is no break in the chain of causation of such
character as to relieve the actor from liability. This
is so even though they are deliberate and _inde-
pendent, but innocent acts of a human being.”’
5. The United States Court of Appeals applied New
York Law in the case at bar according to the doctrine of
Erie R. R. Co. v. Tompkins, 304 U. S. 64.
6. There were clearly triable issues of fact from which
a Jury could reach and did reach the conclusion that the
petitioners were guilty of negligence and that plaintiff's
intestate was free from contributory negligence. See
Berry v. United States, 312 U. S. 450; Lumbra v. U. §. 290
U. S. 552; Gunning v. Cooley, 281 U. 8. 90; Gulf M. €
N. R. Co. v. Wells, 275 U. S. 455; Chicago, Milwaukee &
St. Paul R. Co. v. Coogan, 271 U. S. 472.
7. The petitioners’ Cauldwell-Wingate Co., Ine. and
Poirier & McLane Corp. cannot be heard to complain that
they have been made wholly liable for the judgment ren-
dered in favor of the widow and her four children herein for
the following reasons:
a. At the conclusion of the trial, the petitioners Cauld-
well-Wingate and Poirier & McLane tacitly consented to a
dismissal of their cross-claim against their co-defendant and
subcontractor, Port Chester. They deliberately remained
silent when Port Chester moved for a dismissal of Cauld-
well-Wingate and Poirier & McLane’s cross-claim. The
entire record does not contain a single work of protest or
opposition by Cauldwell-Wingate and Poirier & McLane
against Port Chester when Port Chester moved for a dis-
missal of the cross-claim. Hence, they are deemed to have
consented thereto.
b. In any event, according to New York Law, the
question of joint contribution as between tort feasors is
academic. The rights of the widow and four children are
paramount and cannot be delayed, interferred with or put
in jeopardy by any claim of contribution by one tort feasor
as against the other upon the theory that the one is seek-
ing contribution from the other. Section 211a of the Civil
Practice Act was never intended to nor does it affect the
rights of the plaintiff in any manner. See Fox v. Western
N. Y. Motor Lines, Inc., et al., 232 A. D. 308; aff’d 257
N. Y. 305; Ward v. Iroquois Gas Corp., et al., 233 A. D. 127,
aff’d 258 N. Y. 124; Pally, et al. v. F. W. Woolworth &
Co., et al., 194 Mise. 211; Schroeder v. City & County Sav-
ings Bank of Albany, et al., 267 A. D. 206, at 211:
‘‘This plaintiff, nearly six years after the ac-
cident, should not be required to suffer further delay
which would almost amount to a denial of justice to
straighten out complicated issues that may exist
between the defendants and concerning which no
proof was offered upon the trial.’’
6
The widow and her four children at bar have waited
five years for a Jury verdict which was obtained after two
arduous and expensive Jury Trials, two appeals in the
United States Court of Appeals, two rearguments which
were denied by that Appellate Court and one Petition for
9 Certiorari which was denied these petitioners by this Court
; in Cauldwell-Wingate Co., et al. v. Person, 338 U. S. 886
To delay this case any longer would be tantamount to
a denial of justice.
cite iy
Rs!
8. Campo v. Scofield, 301 N. Y. 468, urged by peti-
tioners p. 7 of their brief, is not applicable for the follow-
ing reasons:
HSER
a. It deals with an entirely different class of cases,
which among other things, presuppose well built machines
in the first instance which are so constructed as to scream
out notice to the world of obvious danger, e.g. a well built
exposed set of rollers; a well built exposed buzz saw; a well
built exposed airplane propeller.
b. The facts at bar are entirely different from those
in the Campo case. The deceased was not working on the
high tension wires. They were four feet above. He was
about to work on a harmless, insulated 110 volt low tension
wire, four feet below (R. 69a, 71a, 440a, 441a, 554a, 572a).
He touched a guyline which is an innocent looking piece of
cable used merely to support a pole against lateral thrusts.
It was never intended to carry any electric current let
alone a death dealing charge (R. 371a, 377a, 385a, 482a).
He touched the guyline at a point about seven feet three
inches below the high tension wires (R. 547a, 548a, 559a,
960a). This is a long distance from the death dealing bare
‘*jumper’’ wire which was charged with 2300 volts of
electricity and had energized the guyline below. No line-
man could anticipate that the ‘‘jumper’’ would come down
like the jaw of a trap to energize the guyline to a point
iy a a
seven feet three inches below and kill him (R. 69a, 71a, 72a,
73a, 559a, 560a).
c. The Campo case, supra, in no way affects the doctrine
of MacPherson v. Buick Motor Co., 217 N. Y. 382. Rose-
brock v. General Electric Co., 236 N. Y. 227 (electric trans-
formers, improperly packed) affirms MacPherson v. Buick
Motor Co., supra (defective automobile wheel) ; Statler v.
George A. Ray Mfg. Co., 195 N. Y. 478 (imperfectly manu-
factured coffee urn); Torgesen v. Schultz, 192 N. Y. 156
(defective aerated water bottle) ; Devlin v. Smith, 89 N. Y.
470 (imperfectly constructed scaffold).
9, Davies was an electrical construction engineer. He
so testified at the first trial (R. 33).* He so testified at the
second trial (R. 55a). He was ‘‘the top man for Cauld-
well-Wingate in the field’’. Laschiver, the Army repre-
sentative, ‘‘would come to’’ him (R. 422a). Davies ‘‘would
have to pass it on to Port Chester’’ (R. 422a). Laschiver
stated that it was Davies, the representative of Cauldwell-
Wingate and Poirier & McLane, who ‘‘thought it would be
better’? to deadend wires when crossing roads and that
he, Davies ‘‘convinced Laschiver’’ ‘‘that it was the proper
thing to do’’ and Laschiver ‘‘adopted it’’ (R. 505a). Dead-
ending wires to a pole requires the erection of a ‘‘jumper’”’
to force the current around the pole.
The evidence was substantial that this type of con-
struction was unsafe, improper and dangerous (R. 164a-
167a, 596a, 597a). This type of construction was the proxi-
mate cause of the decedent’s death and the Jury so found.
10. Ford v. Sturgis, 14 F. (2nd) 253, (pet. 22) deals
with the collapse of a ceiling in a theatre in the City of
Washington. It is not New York Law. City of New York
v. Penn Steel Co., 206 F. 454 (pet. 22), is a contract action
and has no application.
ASCP el MAME os PTR PF RUE iE SA 2 OR a
8 “st
,
, 38
;
POINT I
Certiorari at bar was denied by this Court, Novem.
ber 21, 1949, Cauldwell-Wingate Co., et al. v. Person,
338 U. S. 886.
POINT II
No question involving the constitution or the valid.
ity of any statute was ever raised in the case at bar.
No one ever raised any constitutional question or any
question affecting the validity of any statute either on
the first trial, the first appeal, the first petition for a re-
hearing or the first petition for a Writ of Certiorari which
was before this Court November 21, 1949, Cauldwell-Win-
gate Co., et al. v. Person, 338 U. S. 886. None was raised
upon the second trial or upon the second appeal, Person
v. Cauldwell-Wingate Co., et al. (R. 619a, case not yet
reported).
For the first time on the 28th day of March, 1951, in
a petition for a rehearing, these petitioners advanced the
argument that a constitutional question was involved.
Rehearing denied April 2, 1951 (R. 631a-642a). The attempt
to raise a constitutional question on a motion for rehearing
is without merit and in any event, too late. See Gelkon
Realty Corporation v. Young Women’s Hebrew Associa-
tion, 296 U. S. 537; Rooker v. Fidelity Trust Company, 261
U. S. 1114; Godchaux Co. v. Estopinal, 251 U. 8. 179; St.
Louis and San Francisco Railroad Co. v. Sheperd, 240
U. S. 240.
This is a simple negligence action in which a young
man, 32 years of age, lost his life and left him surviving
a widow and four infant children, one of whom was born
posthumously and all of whom were deprived of his sup-
ee sonnet ns
J 9
of
=
3 he
=:
;
port, maintenance, care and nurture (R. 428a-435a) due
solely to the carelessness and negligence of the defendants,
as found by a Jury on the 26th day of May, 1950 (R. 348a).
The Trial Court and the Appellate Court applied New York
Law in accordance with the doctrine of Erie R. R. Co. v.
Tompkins, 304 U. S. 64.
The Seventh Amendment guarantees the right to one
trial by Jury not three, as these petitioners would seem to
contend.
POINT III
The Supreme Court does not grant certiorari to the
Circuit Court of Appeals to review evidence and to
discuss specific facts. See U.S. v. Johnston, 268 U. S.
220.
POINT IV
The petitioners do not present any substantial ques-
tion requiring review by this Court.
This case does not involve any conflict between Circuit
Courts of Appeal, any conflict with any applicable local
decisions, any important question of Federal Law or any
question of great public import. It is a simple negligence
suit between private parties involving purely local law.
See Bellavance v. Frank Morrow Co., 141 F. (2nd) 378;
Certiorari denied, 322 U. S. 742; McArthur v. U. S., 315
U. S. 787; U. S. v. Socony Vacuum Co., 310 U. S. 150;
Zucht v. King, 260 U. S. 174.
e
:
oN
ie Fa i Ssh Reta
ee eC ec eet et See
Siise cued ars
Pa roe a
ESN cee
Ma ert ND TG 8 a)
aaa eae
6 rec NIN a es a
1 Sa
fears:
Si es
Pei
y
oe
10
POINT V
It is not within the spirit of the Seventh Amend.
ment to disturb a jury verdict on insubstantial grounds,
The Trial Court did not deprive these petitioners of
their right to trial by Jury, nor did the United States
Court of Appeals interfere therewith when it affirmed the
verdict. See Hartford Accident & Indemnity Co. v. Murphy,
158 F’. (2nd) 506; Keller v. Brooklyn Bus Corp., 128 F. (2nd)
510; Monument Pottery Co. v. Imperial Coal Corp., 21 F.
(2nd) 683, Certiorari denied, 276 U. S. 618; Palmer y,
Hoffman, 318 U. S. 109.
CONCLUSION
The petition for a Writ of Certiorari presents no
question requiring further review by this Court. It is,
therefore, respectfully submitted that the same should
be denied.
Louis A. D’Acosto,
Counsel for Respondent.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.