The opinion of the court was delivered by: FOLLMER
In this action plaintiff seeks to recover damages in the sum of $ 4,365.48 resulting from the alleged negligent performance of services undertaken by defendant in connection with the installation of an antenna mast at Radio Station WTOA, operated by Mercer Broadcasting Company at Trenton, New Jersey. The case was tried to the Court without a jury.
On the evidence, the files and records in the case, the briefs and arguments of counsel, and on due consideration, the Court makes the following Findings of Fact, Conclusions of Law, and Order for judgment:
1. Plaintiff, International Derrick and Equipment Company, is an Ohio corporation. Defendant, Henry R. Buxbaum, is a citizen of Pennsylvania, and was at the times material to this suit engaged in business under the name and style of Tower Erection Company.
2. The plaintiff contracted to erect a metal tower for broadcasting purposes on the premises of Mercer Broadcasting Company in Trenton, New Jersey, and to mount an antenna mast on the tower. The supporting tower when completed was 265 feet in height, and the antenna mast which was to be raised to the top of the tower was 65 feet in length, and weighed approximately 2,000 pounds.
3. The new antenna mast was delivered to the premises of the broadcasting company by the manufacturer. It was placed on supports at the base of the tower a few feet from the ground for the purpose of fitting the mast with the necessary elements and equipment, which was carried out by the engineers of the broadcasting company.
4. Plaintiff entered into a subcontract with Henry R. Buxbaum, trading as Tower Erection Company, whereby Mr. Buxbaum was to furnish the necessary equipment and services to raise the antenna mast to the top of the supporting tower. Tower Erection Company was engaged in the business of erecting broadcasting antenna equipment, and was experienced in the specialized type of operation which it undertook to perform.
5. On April 15, 1948, Mr. Buxbaum and his employees brought their lifting equipment to the premises of the broadcasting company for the purposes of raising the mast.
6. The defendant's employees attached their 'gin pole' to the top of the supporting tower. This pole was constructed of tubular steel in four sections fitted together to form a vertical support. It was approximately 60 feet long when assembled, and projected 26 to 28 feet above the top of the base tower. It was fitted at the top with a pad eye on one side to which were secured four wire cable guys extending to the ground on all four sides of the tower. These guys were equipped with blocks to permit their adjustment to any desired degree of tension. Opposite the point where the guys were attached to the gin pole, there was another pad eye which held the snatch block for the lifting cable. The lifting cable was secured at one end to the antenna mast and at the other end to a truck winch which was part of defendant's equipment.
7. During the lifting operation, the weather was clear and there was very little wind.
8. The defendant's employees under the personal supervision of Mr. Buxbaum and the manager and chief engineer of the broadcasting company attached the lifting cable to the antenna mast a few feet above its midpoint, so that it could be raised in a position of approximately a 45-degree angle with the ground.
9. When the cable had been attached to the mast to the satisfaction of defendant from the standpoint of the lifting, and to the satisfaction of the broadcasting company's engineer from the standpoint of the protection of the antenna elements from possible damage from the cable, defendant directed that a short lift or 'strain' be taken on the winch. This raised the upper end of the mast several feet off the supports where it had been resting. At this time, the gin pole bent over as much as 5 feet.
10. Defendant directed his employees to lift the lower end of the mast so that it could be moved to another position with reference to the foot of the tower, and then directed the winchman to take another strain on the lifting cable.
11. While the winch was making the second lift, the upper end of the antenna mast was 15 to 20 feet off the ground, the gin pole bent over and kept on bending, causing the mast to fall to the ground, with a ...