Carr v. General Fire Extinguisher Co.

Opinion by Mr. Justice Stewart, The several assignments of error raise but a single question. The plaintiff,- an employee of the defendant company, was injured while engaged in his appointed work. He was standing upon a ladder at an elevation of some sixty feet; the ladder broke under his weight, with the result that he fell the entire distance to the floor beneath. It is needless to say that he was seriously injured. The proximate cause of the accident was the insufficiency of the ladder for the purpose for which it was being used.' It had been furnished plaintiff by McMinn, the [350] defendant’s foreman, who had directed plaintiff to use it. Was McMinn in so doing discharging a delegated duty of the employer, or was he simply a fellow workman with the plaintiff? Upon the state of the evidence as presented this was a mixed question of law and fact. The facts having been found for us by the jury, the question of law is easily resolved. The contention of appellant is that, conceding the facts to be as the jury found, McMinn stood in no other relation to the plaintiff than that of fellow workman, and that the court below should have so held as matter of law. The facts are these: The defendant company is engaged in manufacturing and supplying an improved apparatus for the extinguishment of fires in buildings. Through its Philadelphia departments it had contracted to equip a factory in Chester, Pa., with this apparatus. The material for the work was prepared at the shops of the company, and shipped thence to Chester. Such tools and appliances as were regarded necessary for the erection of 'the apparatus, including ladders, were sent from the department at Philadelphia where the company kept a store of supplies of this character. McMinn was placed in charge as foreman of the job, and employed the plaintiff. The assistant superintendent or general foreman of the company went from Philadelphia to Chester the day the work there was commenced, taking with him two workmen. He testified that on that day he “ examined the work to see if it was up all right, and gave him (McMinn) directions how to put up other work he was a little bit stuck on.” This was on Thursday, and he was not there again until after the accident. On the following Saturday a shorter ladder than any of those supplied by the company was required for the particular work plaintiff was then engaged upon, and he so reported to McMinn. The latter found one of suitable length, not belonging to the defendant, however, on the factory premises, and furnished it to the plaintiff with instructions to use it. This was the defective ladder that caused the accident. We then have the fact that the supply .of tools and appliances sent by the defendant to its workmen at Chester was deficient to this extent, that it did not have a ladder of the length required for the work. That it [351] was the duty of MeMinn to supply this deficiency is manifest; indeed, it was not disputed. There was no other representative of the company on the ground who had authority to supply anything; and his instructions were to draw upon the company’s storehouse at Philadelphia for what supplies in the way of tools and appliances were necessary. What matters it that the company had a supply of such instruments in its storehouse in Philadelphia? The case would not have been different in principle had the storehouse been a hundred miles away. It was not plaintiff’s duty to go to Philadelphia to get a ladder. He had not even that privilege. His duty was to report the want to the foreman MeMinn; it was for MeMinn to say whether the ladder asked for was needed, and if so, to supply it. Such were his instructions; and to this extent he stood as the representative of the company. It is argued that because he disregarded these instructions and procured this defective ladder elsewhere no responsibility attaches to the defendant in connection therewith; but this position is wholly untenable. An absolute duty was upon the defendant to see that its employees were supplied with reasonably safe instruments for the work they were given to do. It could not relieve itself of responsibility by delegating this duty to another. When an employer delegates the performance of an absolute duty, he must see to it at his peril that the duty is performed. Failure on the part of the representative or substitute because of disregard of instructions, is the failure of the principal. The case was properly disposed of in the court below. Judgment affirmed.