New York, Lake Erie & Western R. R. v. Bell

Mr. Justice PAXSON delivered the opinion of the court, May 10th, 1886. The main question in this. ease has been so often decided that an extended discussion of it becomes unnecessary. It is sufficient to refer to Lehigh Valley Coal Co. v. Jones, 86 Pa. St. Rep., 432, where the rule is laid down as follows: “ The question arises who are fellow servants in contemplation of [408] law? To constitute such they need not at the 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 purposes. 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. The true reason upon which I think the rule rests is, that each one who enters the service of another takes on himself all the ordinary risks of the employment in which he engages, an$ that the negligent a.cts of his fellow workmen in the general course of his employment are within the ordinary risks.” A large number of authorities are then cited by our brother Mercttr, who delivered the opinion of the court, in support of his position, which we need not repeat. Indeed, .1 do not understand that the soundness of the rule was seriously questioned upon the trial below. It was in the application of the rule to the facts of the ease that the learned judge fell into error. By the defendants’ fifth point he was called upon to instruct the jury “that the men employed in the shops of the defendant, and the men employed in the shop yard, to take in and out cars loaded with supplies for use in the shops, and to load and unload them, all being under one common foreman, are fellow servants, and for the negligent acts of any one of them, not communicated to the general foreman, no recovery can be had.” The learned judge answered this point as follows : “We decline to affirm this point. It calls upon us to say in substance, as respects the question here, and the acts under investigation, that Bell, O’Dea and Vedder were fellow servants and co-laborers, and that we. decline to do.” The accident by which the plaintiff below was injured, occurred in the shops of the defendant company. These shops are not all under one roof, but the foundry, hammer shop, and paint shop are separate from the general machine shop, which is about 700 feet long. Between the foundry and paint shop and machine shop, a track is laid for the purpose of bringing in materials and supplies to the various shops from the main track, and for carrying out the castings, cars, locomotives and repaired and manufactured articles upon the main track, for distribution over the road. All of these works and the men employed therein were under the general charge of one Y. Blackburn, who was known as the Master Mechanic, and under him was a general foreman. The power of employing and discharging men was with the Master Mechanic. Each shop had its foreman, and under him were certain gang foremen who had charge of gangs of men engaged in the performance [409] of particular duties. C. O. Vedder was gang foreman of the turning department, and had charge of making rods and links, and of gas and steam pipe and fitting. M. H. Pope had charge as a boss of a gang of men whose business it was to bring in cars .loaded with materials and supplies for the shops, from the main track, take them into the paint shop, foundry and other shops and unload them there, and to load any manufactured articles or supplies from the shops into cars for distribution along the road. The plaintiff was employed on a car running into the shop for the purposes above stated. In the year 1881 O. D. Falkenbury, who was foreman of the foundry, obtained permission of the Master Mechanic to run a gas pipe from the paint shop to the foundry. This was done by O'Dea, one of the gas fitters, who darried the pipe across the track at ah elevation of sixteen feet three inches above the rail. This occurred on the 29th of June, and the same afternoon the plaintiff was struck by this pipe, when standing on the top of a car in passing under it, but was not injured. The pipe was of such a height as not to hit a man seated on the cars, or when standing up if he stooped a little. Pope, the foreman, was told of it and said he would see Hawthorne, the general foreman, about it, and the plaintiff says Pope told him it would be taken down. This was not done, and the next day the plaintiff was again struck by the same pipe, and injured, for which injury this action was brought in the court below. It is too plain for argument that the men engaged at work in these different shops, including the different foremen and gang bosses, were in the same common employment. It is also equally clear that the plaintiff and the rest of the gang, who with him were running cars in and out of the shop to take in supplies, and to take out finished work, were in the same common employment. The difference in rank or position makes no difference, as has been repeatedly held. The gang laborer and the gang boss or foreman occupy precisely the same position. It is only where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own, that the master is held liable for the negligence of such agent or subordinate: Mullan v. The Steamship Co., 78 Pa. St. Rep., 25. The latter must have a general power and control over the business, not a mere authority to superintend a certain class of work, or a certain gang of men, in order to make the master liable. There was nothing of the kind here. The accident was caused by the negligence of the workmen who put up the gas pipe. If they had been ordered by the Master Mechanic' to put up the pipe where and as it was placed, the negligence, if any, would have been the negli [410] genee of the master, for which the defendants would have been responsible. Such was not the case. The most that can be urged was that the master consented, or to make it stronger, directed that a gas pipe should be carried from the paint shop to the foundry. If in doing so the men employed in putting it up did their work negligently, and a fellow workman was injured thereby, it was the negligence of men engaged in the same common employment; hence it was not the negligence of the master, and consequently not that of the company. This view is not in conflict with the case of the Pennsylvania & New York Canal &R. R. Co. v. Leslie, 42 Leg. Int., 267. In that case Leslie and Mason were respectively engineer and fireman of a gravel train, and the negligence complained of was that of a boiler maker in a repair shop. It was held, under the circumstances of the case, that there was no connection between them; that the plaintiff had no more business in and about the company’s machine shops, than if said shops had belonged to some other company or individual. This case was perhaps a close one, yet it differs essentially from the one in hand. Here the plaintiff was admittedly employed in and about the shops; his business was to take the material in and out as before stated. We cannot affirm this case without extending the doctrine of respondeat superior to an unreasonable length. Judgment reversed.