Keystone Bridge Co. v. Newberry

Mr. Justice Green delivered the opinion of the court, January 3d 1881. Practically these cases, as they come before us, turn upon two questions: 1. Was Wymond such an officer of the defendant corporation as that it would be responsible for his act of negligence ? And 2. Is there any evidence of Wymond’s incompetency and unskilfulness, and that the company had knowledge of it ? The learned judge of the court below left both these questions to the jury in his general charge and in his answers to the defendants’ third and fourth points. It is claimed that he was in error in both. Taking the questions in their order, we will consider first the subject of the relation of Wymond to the company on the one hand, and to the plaintiffs on the other. The defendant was a corporation very largely engaged in the business of constructing and erecting iron bridges. They owned and used extensive works and had erected an additional building about four hundred feet in length and fifty feet in width. The walls were brick, and at the time of the accident they were already raised to their full height, and upon them an iron roof was being placed for purposes of ventilation. The plaintiffs were laboring men, who were working under the immediate direction of one William Wymond. An apparatus called a trussed plank was being used in putting on the roof, and while the plaintiffs and some other workmen were engaged carrying an iron rafter over this plank it gave way and they were precipitated to the ground, killing one man and injuring several, among them the plaintiffs. A large amount of testimony was taken, but so far as the principal questions are concerned it was not at all contradictory. In regard to the position of Wymond the undisputed testimony was to the following effect: Colonel Piper was the general manager. He had supervision over the whole business of the company, employed and discharged the men and gave general directions. His orders had to be obeyed by all except the president. Next to him in authority was Mr. Sheffler, the assistant manager, whose duties were the same as Colonel Piper’s, he giving attention to the details and supervising the whole business in Colonel Piper’s absence. The next in authority was William Robinson. He was. examined by the plaintiffs and testified that he was the general foreman of the riveting and the laborers and was under the control of Piper and Sheffler. He also said there were other foremen under him. It was he who detailed men to do the various portions of work, and directed what was to be done. Both the plaintiffs were engaged by Robinson, and were sent by him to Wymond to assist in putting on [250] the iron roof. Wymond had charge of the men who were doing this particular work. The immediate orders to the men engaged in this work came from Wymond. Robinson testified, “ Mr. Wymond had control of the men as soon as I gave them to him;” and again, “I was instructed to furnish Mr. Wymond with men by Mr. Sheffler.” Wymond’s duties are thus described : “I went on various kinds of work, moving machinery, repairing machinery, general repair work; sometimes he (Robinson) would give me three or four men to handle, and at other times only two; that was in the outside shops, but sometimes I would be ordered to go out and take a gang of men and put up a roof, or building or bridges, as the case might be.” Q. “You were in charge of the work of the erection of ventilators on the new building of which this is the model?” A. “Well, I suppose you might term it in charge ; I was ordered to do that work.” Q. “ State what your position was.” A. “ I don’t know that I held any commission position ; I was put there by Mr.- Robinson, as near as I can remember.” Q. “To do wdiat?” A. “To raise these trusses and to put up this building; and as for the men he was to furnish me what men I wanted.” Q. “Did you employ the men.” A. “No, sir.” Q. “Did you discharge the men?” A. “No, sir.” * * * Q. “ Did you employ Mr. Kennedy or Mr. Newberry ?” A. “ No, sir.” Q. “ How did they come to be under your control ?” A. “ I suppose Mr. Robinson sent them to' me ; he sent all the men that worked for me; they would come there and tell me that Mr. Robinson told them that he wanted them to work there.” Both Kennedy and Newberry testified that they were employed by Robinson and sent by him to Wymond to work under his orders. Hurlston, a witness for defendant, testified that he was a foreman; had some men under him; was a gang boss; that R.obinson had general charge of the works; that Piper was over Robinson, and was constantly going through the works, generally twice a day, giving orders and directions; that Wymond had charge of the erection of the structure, and was boss, and that Robinson was Wymond’s boss. There was no contradiction of this testimony, and it establishes, in our opinion, that Wymond was in no manner the general representative of the company or clothed with its powers. He simply had charge of a gang of men, of varying numbers, neither employed nor discharged by himself, but furnished to him by another who was his superior, and whose orders he was required to obey. Wymond, while he had charge of the work of putting up the ventilator, was himself a workman and worked with the other men. It was testified by Wymond, Watkins and Krebeler that they three made the trussed plank which gave way and caused the accident. It is quite clear to us that Wymond and the men of whom he had charge were engaged in one common pursuit, seeking [251] to accomplish one common object, and that all of them were subject to the orders of another, who was their common superior. In these circumstances we think this case is ruled by the cases of Lehigh Valley Coal Co. v. Jones, 5 Norris 433, and Delaware & Hudson Canal Co. v. Carroll, 8 Id. 374. In the former of these cases Mr. Justice Mercuu, in delivering the opinion of the court, said: “ Who are fellow servants in contemplation of law ? To constitute such they need not at the same time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade and is subject to the control and direction of the superior whose act caused the injury, provided they are both co-operating to effect the same common object.” Again, “Some of the employees were superior in the grade of their employment to Alexander Jones, others were inferior. Whether superior or inferior, they, as well as he, were all under one common superintendent; in his hands and in his alone was the entire charge of the business placed by the company. His negligence might be negligence of the company.” In the case of Delaware & Hudson Canal Co. v. Carroll, supra, Mr. Justice Paxson, in delivering the opinion of the court, said: “ There is no room for the allegation that a mining boss, under the Mine Ventilation Act of 1870, is an agent of the mine owner or a co-employee. He is clothed with no power of engaging and discharging miners and laborers at pleasure. He is merely a fellow se’rvant with the miner. * * * He has no general power of control. His duties are confined tó special matters. That they are different from those of others of his fellow co-laborers, or even that they are of a higher grade, does not matter.” In the case of Caldwell v. Brown, 3 P. F. Smith 456, in which it was held that an engineer was a fellow employee for whose acts the employers were not liable, Judge Read, in the course of the opinion, quotes Gilman v. The Eastern Railroad Corp., 10 Allen 233, in which it was held that, “In case of. an injury to one servant by the negligence of another, it is immaterial whether he who causes and he who sustains the injury are not engaged in the same or similar labor or in positions of equal grade or authority. If they are acting together under one master in carrying out a common object, they are fellow servants.” See also, Wright v. N. Y. Cent. Railroad Co., 25 N. Y. 565; Morgan v. The Vale of Neath Railway Co., L. J., 35 Q. B. 23; Weger v. Pennsylvania Railroad Co., 5 P. F. Smith 463. We are clearly of opinion that Wymond, upon the undisputed 'testimony in the case, was not such a representative of the defendant as that they would be liable for his acts of negligence. A [252] further consideration of this branch of the case leads us to the same result. The injuries of the plaintiffs, it is claimed, were occasioned by the breaking or giving away of a' defective apparatus. Now the apparatus in question was not furnished by the company at all. It was made by Wymond and two others of the workmen, and if it was defective it was the result of the negligence of three fellow workmen of the plaintiffs. No superior officer of the company gave orders that the particular materials used should be selected, or that the particular contrivance itself should be constructed. The workmen made such • an apparatus as they deemed sufficient. If it proved insufficient it was an error of judgment on their part for which we can see no ground of liability as against the defendant for the injuries of the plaintiffs. • It is quite uncertain under the testimony whether the accident resulted from overloading the truss-plank, or from a defect in the iron rod which sustained it. No testimony was given as to whether there was a flaw in the iron, and it is not at all clear that the rod was too weak to sustain all the reasonable weight that should have been put upon it. .On the second question raised on the trial, to wit, whether the defendant employed Wymond knowing, or having reasonable cause to know, that he was an incapable and unskilful person, not fit to be put in charge of such work, we can find no testimony sustaining either allegation. The learned counsel for defendant in error alleges that Wymond was incompetent, but he does not refer us to any testimony in support of that allegation. He does indeed contend that proof of Wymond’s unfitness is found in his own testimony, but a careful examination of that and other testimony proves quite the contrary. He testifies to a large experience in the business of building iron bridges and bridges of iron and wood in combination, and he was engaged upon some of the largest and most important bridges in the country. He could not conduct that kind of work without acquiring much experience in the resisting powers of wood and iron when subjected to heavy pressure. There was actually no affirmative testimony of any want of skill or knowledge upon these subjects, and not a scrap of evidence that the company had the slightest knowledge of any want of capacity on his part to perform the work assigned to him. In the absence of any testimony on this subject we think the learned judge of the court below was in error in submitting the question to the jury. We think the third, fourth and fifth assignments of error are sustained, and on these the Judgments are reversed, and writs of venire facias de novo awarded.