Cooper v. Penn Bridge Co.

Mr. Justice Robb delivered the opinion of the Court: That the erection of this structural iron-bridge span and the removal of the old span, a mass of structural iron 140 feet long, 18^2 feet high, and weighing many tons, was an undertaking requiring expert knowledge and supervision, may not be gainsaid. That such was the view of the defendant corporation is apparent from the fact that it maintained an experienced foreman to supervise and direct the work. Certainly the president of the company, who had general supervisory power over work in this District, did not undertake personally to direct operations;,for, as we have seen, in the month that Mr. Hoffman had charge Mr. White visited the work not more than three or four times. Hoffman, therefore, was the direct representative of the defendant. He had complete charge of the. men, hired, paid, and discharged them.. These facts, taken in connection with the character of the undertaking, which undoubtedly was such as to make the work dangerous without supervision, warrant the conclusion that Hoffman was a vice principal. Collins v. John W. Danforth Co. 36. App. D. C. 592. “When the business of the master or employer/' said the court in Northern P. R. Co. v. Peterson, 162 U. S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843, “is of such great and.diversified extent that it naturally aud necessarily separates itself into departments of service, the individuals placed by the master in charge of these separate branches and departments of service, ana given entire and absolute control therein, may properly be considered, with respect to employees under them, vice principals and representatives of the master as fully and as completely as if the entire business of the master were placed by [473] him under one superintendent.” The work here was a detached unit, complete in itself, which from the nature of tilings necessitated supe rvision by the corporation through some representative. The corporation chose Air. Hoffman for that duty, and, ■when he left, placed in control the next in rank, Air. Hoover. AVhatever may have been the status of Adam Hoffman, Hoover certainly represented the defendant after AVilliam Hoffman left. It of course is not denied that it was defendant’s duty to provide for the plaintiff a reasonably safe place in which to work, but defendant contends that this duty was performed when proper mauls and proper handles were furnished the men. While there is some dispute under the evidence as to whether wedges for the handles were available, we do no consider this question material under our view of the case; for though it may be. conceded that where an employin' furnishes such a simple tool as a hammer or maul he is not expected to superintend its use (Thompson-Starrett Co. v. Wilson, 39 App. D. C. 211), and that he is not responsible for minor or simple, repairs if he has furnished proper materials therefor (American Bridge Co. v. Seeds, 11 L.R.A.(N.S.) 1041, 75 C. C. A. 407, 144 Fed. 605; O’Hara v. Brown Hoisting Mach. Co. 96 C. C. A. 350, 171 Fed. 394; Sanborn v. Boston & M. R. Co. 76 N. H. 523, 86 Atl. 157; Martin v. Highland Park Mfg. Co. 128 N. C. 264, 83 Am. St. Rep. 671, 38 S. E. 876, there is evidence in the present case that the master, through its representative Hoover*, deliberately directed and thereby became responsible, for the use of a defectively dangerous tool. While the plaintiff assumed the risks “normally and necessarily incident to the occupation” in which he was engaged (Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834), it was not to be assumed that his employer needlessly would subject him to a risk of an altogether different sort. Had Galloway slipped and fallen and injury resulted to the plaintiff, it well might have been said that plaintiff had assumed that very risk, because from the nature of things he must have? known that stick an occurrence was possible; but, knowing that it was his employer’s duty to exercise, reasonable care to pro [474] vide him a reasonably safe place in which to work, plaintiff certainly had no reason to expect that such employer deliberately and needlessly would subject him to the risk incident to the use of this defective tool. Missouri Valley Bridge & Iron Co. v. Nunnemaker, 126 C. C. A. 174, 209 Fed. 32. Hoover, according to the testimony of three witnesses, not only ordered the use of this tool in its defective condition in the morning, but deliberately stood’ by during the entire day, after the reasonableness of Galloway’s warning must have bee:i demonstrated even to him, without countermanding the order. In other words, the jury might have found under the evidence not only that Hoover was directly responsible for the use of this tool in the morning of the day of the accident, when any reasonable man would have known that its use was dangerous to those working’ below, but that he continued that use after its dangerous character had been fully demonstrated to him. This, therefore, is not a case where a simple tool has been furnished an employee and that employee, by carelessly failing to make a simple repair with material at hand, has injured a fellow employee, but rather is it a ease where an employer has deliberately directed the irse of a defective tool by one employee to the injury of another and innocent employee. Plaintiff was injured in August of 1915 and soon thereafter brought this suit. At the trial motion for a directed verdict was not made until all the evidence was in, when the trial justice, notwithstanding that in his remarks to the jury he expressed the view that the legal questions involved were "so close that the court of appeals ought to pass upon them,” and notwithstanding that the plaintiff requested that the case be submitted to the jury for a special finding, directed a verdict for the defendant. That action has necessitated a trial de -novo at great expense to the parties, has delayed the ultimate disposition of the case for a very considerable time, and incidentally added to the already congested condition of the trial calendar and this notwithstanding that rule 52 of the court below specifically provides for the taking of such a verdict, which rule twice has been referred to with approval by this court. McNamara v. Washington Terminal Co. 37 App. D. C. 384; Burke v. Dis [475] trict of Columbia, 42 App. D. C. 438. In the 4 McNamara Case, whore the' situation was similar to that here', Mr. -Justice Van Orsdel, speaking for the court, said: ‘‘Rule 52 of the supreme court of the District of Columbia provides for just such an emergency as confronted the trial court in this case. No injury nor injustice could have been inflicted upon the defendant had this course beeu pursued. As it is, the entire expense and delay attendant upon a now trial will again have to he incurred. No valid excuse is apparent why, in a case like this, the rule should not he followed. Courts should he eager to avail themselves of every opportunity to facilitate the despatch of business, curtail costs, and discourage litigation, when it can be accomplished with equal justice to all concerned.” The rule should have been followed in this ease. The judgment is reversed, with costs, and the case remanded for a new trial. Be ver sed and remanded.