Buck v. New Jersey Zinc Co.

Opinion by Mb. Justice Potteb, The appellant in this case, the zinc company, was engaged in the construction of a large manufacturing plant. For the purpose of grading the ground and carrying cinders and building materials wherever they might be needed during the progress of the operation, temporary railroad tracks were laid. The cars used for this purpose were dump cars, which turned upon an axis running lengthwise of the car, so as to discharge the contents upon either side. In maintaining the normal equilibrium, the body of the car was held in place by short chains fastened upon each side. These chains were composed of four or five links, and each link was some four and one half inches in length. Usually the chains were not tightly drawn, but had considerable play, permitting the body of the car to rock somewhat upon its central axis. During the progress of the work, the links of the chains were liable to become worn or to break, and whenever this occurred it was customary to substitute for the time being, an open link. Usually two men were assigned to each of the dump cars to see to the loading and unloading, and they were expected to ride back and forth upon the cars. At the time of the accident, the plaintiff was so engaged. It appears from the testimony that another workman, named Beitle, who was working with the plaintiff, had received orders from the foreman of the yard to watch the cars, and whenever he found a worn link to cut it out, and put an open link in. He testifies that five days before the happening of the accident he did replace a worn link in the chain on the car upon which the plaintiff was employed, with an open link; and that it was then all right ; that he took a hammer and welded the open points as close together as possible,; that he saw this link just before the accident, and it was then in position and well secured. While the car was in motion, and the plaintiff' was sitting upon it, either from a sudden lurch or from some other cause, this open link suddenly broke, permitting the car body [136] to turn sidewise, and the plaintiff was thrown to the ground. The immediate cause of the accident was therefore the breaking of the link. These links were not purchased ready-made by the defendant, nor were they prepared in advance of the need for their use. They were made by the blacksmiths upon the premises, when ordered by the men. The defendant company had furnished large supplies of iron suitable for the various needs which might arise during the course of construction. This iron was kept in racks in the supply house, assorted according to size, so that the workmen could make a suitable selection as the occasion arose. The testimony shows that from thirty to forty tons of iron of different sizes were thus kept in store, and three blacksmiths were provided to work it up into the various shapes as required by the workmen. As a witness stated, the blacksmiths did all kinds of work, making the iron up into bolts, hangers, clasps, links, and anything else which was required. They made open links, welded links, and all kinds of links. Whatever the men needed, and asked for, was made by the blacksmiths. When anything of the kind was ordered, the blacksmiths went to the supply house, and selected from the stock of iron there on hand, such as appeared to be suitable for the purpose required, and made it up into links, stirrups, bolts, clasps, and all the things necessary for use in the construction and erection of the plant. It must be borne in mind that the particular work which was being carried on at that time and place, by the defendant company, was the construction of the new works, and to this end everything was made to bend, and all of the workmen were 'engaged in carrying out this general purpose. While the plaintiff himself did not procure from the blacksmith the link which broke, yet it was procured by his fellow workman, Beitle, who was engaged in precisely the same duties, and was working side by side with him upon the cars. The particular inquiry in this case is whether the blacksmith who made the link in question was a fellow servant with the plaintiff, and his immediate fellow workman who placed the link in the chain upon the car, and were using it at the time of the accident. In Lehigh Valley Coal Company v. Jones, 86 Pa. 432, the rule is laid down that to constitute fellow servants in contem [137] plation of the law, “ 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.” In applying this principle in the case of New York, etc., Railroad Company v. Bell, 112 Pa. 400, it was held that trainmen working on cars, carrying supplies were fellow servants with the men in the shops who had put up a gas pipe for their own convenience, hut which resulted in injury to a trainman. In the present case, if there was any negligence disclosed by the evidence, it was that of the blacksmith, either in making choice of the material out of which he formed the link, or in the exercise of his judgment as to the particular form and shape, which he gave to it. The link was made at the request of Beitle, and was accepted by him from the hands of the blacksmith, without any objection or criticism as to its form or shape. He took it to the train upon which both he and the plaintiff were working, and placed it in position in the chain. They were working either upon the same or adjoiuing cars, and the duties performed by each were practically the same, as they consisted merely in attending to the loading and unloading of the ears. As it happened, Beitle was the one to whom the foreman had spoken, requesting him to look out particularly for the condition of the chains, and directing him to have any worn links replaced by sound ones. But the plaintiff was employed side by side with Beitle, and all the conditions were equally obvious to him. The blacksmith shop was open, and the blacksmiths were there for the purpose of making up into the shape desired whatever the men wanted in the way of links or other iron work. Provision was made for direct and immediate communication between the men engaged in the work and the blacksmiths. The iron was furnished in quantities, and in various sizes for varied use as needed, and the blacksmiths were in attendance, not for the purpose of carrying on any separate or distinct department of the defendant’s work, but to aid and assist in every way in which their service could be of use to the other workmen, who were, with themselves, all engaged in carrying out one common end,—-the construction of the new works. Under [138] the circumstances of the common employment at that time and place, the blacksmiths were as truly the helpers and assistants of the other workmen, as would be a blacksmith engaged at a stone quarry or a coal mine, to sharpen or repair the picks and working tools of the quarrymen or miners. We cannot avoid the conclusion, therefore, that the blacksmith and the plaintiff were coemployees. Both were employed by the same master; were engaged in the same circle of employment; each was helping to carry forward in his own way a definite portion of the work directed to a common end. There is no proof in the case that the blacksmith was incompetent or not sufficiently skilled for the purpose of his employment. Nor is there any proof that the iron furnished by the defendant in large quantities was either insufficient or unsuitable. This case is clearly ruled by the principles laid down in Ross v. Walker, 139 Pa.-49. As was there said, “the master does not insure his employees against each other, nor is he bound to supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided for them ; they must use their own judgment as to the manner of handling it.” And again (p. 51) : “For an error in judgment or for the neglect of duty on the part of any one of his employees, from the foreman down to the humblest unskilled laborer he (the employer) was not liable.” We are of opinion that the defendant was entitled to an affirmance of its tenth point for. charge, which is as follows : “ The blacksmith that made the link, the laborer who ordered it made and put it on the car, and the plaintiff who worked as a laborer on the car, were fellow servants ; they assumed all the risks incident to this work, and the master or employer cannot, be held liable for the negligence of either or any of them which resulted in an injury to either.” The fourth assignment of error, which is to the refusal of this point, is therefore sustained; as is also the first assignment of error, which was to the refusal of binding instructions in favor of the defendant. The judgment is reversed.