Connelly v. Faith

Opinion by Mr. Justice Mitchell, Plaintiff was employed by Faith & Company, and was doing-work on the premises of the Boothby Hotel Company when ho received the injury for which he brought suit against both. We do not discover any evidence of negligence on the part of Faith & Company, and as to them the direction to find for the defendants is affirmed. But as to the Boothby Hotel Company the case is different. The evidence is undisputed that the injury was the result of stepping into hot water from the well, and that the overflow was caused by the failure of the engineer to keep the well pumped out. The question of the Boothby Company’s negligence therefore was necessarily for the jury. [557] Two points are made for the defense. First, that the work in which plaintiff was engaged at the time of the injury, was t.he work of the Boothby Company, and therefore any negligence of the engineer was negligence of a coemployee. On this point Wischam v. Rickards, 136 Pa. 109, is relied on. In that case the defendant was engaged in delivering a heavy wheel to the employer of the plaintiff, and needing assistance the plaintiff’s foreman called him among others to help, and while so doing he was injured. It was held that he could not recover. But it appeared that the act of the plaintiff was entirely outside the line of his duty to his employer, and clearly within the duty of the employees of the defendant. In joining the latter in the performance of their duties he made himself for the time being one of their class, and the decision was explicitly put on this ground. “ The plaintiff did become one of the servants of the defendant to assist in the defendant’s act of delivering the wheel. ... he had no right or interest in the wheel or its delivery, and what he did was done on behalf of the defendant, and in conjunction with defendant’s servants: ” p. 128. Under these circumstances it was held that his coming forward in response to a call from his own foreman did not change the main fact of temporary engagement in defendant’s work. The case is said by the judge who delivered the opinion, to be “exceedingly close,” and it is not to be applied as a precedent without clear similarity in the crucial facts. In the present case it does not appear that the work in which plaintiff was engaged was not in the line of his duty to his own employer, or was not done in aid and for the convenience of his own employer’s business there. 'The inference is rather that it was. It was not done in conjunction or with the assistance of any of the Boothby men, but by the plaintiff alone, in the line of his trade as electrician, and its immediate object was to restore the light to a room in which his fellow-workmen were then engaged. The contract between Faith & Company and the Boothby Company was not shown. It may become a question for the jury under the evidence whether plaintiff at the time of the injury had put himself temporarily in the position of a member of the class of employees of the Boothby Company, but it is not so necessary a deduction that the court can draw it as a matter of law. The second branch of the defense is that the plaintiff himself [558] contributed to the accident by his stepping down from the ladder in the dark, without calling on the others present to relight his candle or at least hold theirs so that he could see. This also was a question for the jury. The plaintiff had gone across this place three times within a few minutes, first to ascertain what was the matter with the incandescent light that had gone out, then taking it down and into the engine room to put a new fuse wire in, and then back again to replace it in its proper position, each time as he says picking his way carefully by the light of his candle. If when he stepped down from the ladder in the dark after his candle went out, he had made a misstep or fallen and thus been injured, it would clearly have been at his own risk, for the danger was patent and known to him. But the danger from the overflow of hot water was not so obvious. Whether he was negligent as to this depended on the frequency of such occurrence, how suddenly or how slowly it took place, his means of knowledge or observation of the probability of it and other circumstances which required the consideration of the jury. Judgment reversed and venire de novo awarded as to the Boothby Hotel Company.