Andre v. Winslow Bros. Elevator Co.

Grant, O. J. (after stating the facts). The case is so well stated by Judge Steere in setting aside the first ver-' diet that we quote it: “After carefully reading the testimony, which has been furnished by counsel, I am forced to the conclusion that the doctrine of ‘ fellow-servant ’ applies in this case; and on the undisputed testimony, taken most strongly in favor of the plaintiff, there can be no recovery. At the time of the accident, Keeran was only a working foreman, in charge of the final adjustment of the elevators. He was taking part with Andre in the performance of that labor. The elevators were then constructed, and the plant installed. The situation is the same as though these men had been sent to do that work, and make repairs, after a break in the machinery, which had been in operation for a long period. No claim is made that an incompetent foreman or fellow-servant was employed. Keeran was a man of skill and experience in his business, was working with his hands, with Andre as a helper, and they were co-laborers in the same line of employment, each depending for his safety on the care and skill of the other. The power which Keeran had to hire and discharge men and direct details of the work is not the test, for the work he was performing when the accident occurred did not necessarily belong to the employer.” The statement of Judge Carpenter in directing a verdict is equally cogent. [563] Plaintiff and Keeran were fellow-servants. Keeran possessed none of the authority of a vice principal. He had no greater authority than the foreman of a section gang upon a railroad, or a foreman in a shop. He worked with plaintiff at the same work, and with like tools. He was only above plaintiff in that he directed how the work assigned them should be done. At the time of the accident, he had gone into the place to do the work himself. We have discussed this doctrine so often and so fully, especially in Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27 L. R. A. 266), and Schroeder v. Railroad Co., 103 Mich. 213 (29 L. R. A. 321, 50 Am. St. Rep. 354), that we refrain from discussing it now. This case is ruled by these cases, as well as by Findlay v. Russel Wheel & Foundry Co., 108 Mich. 286. We find that several cases of the federal courts, decided within the last two years, fully support the above decisions. Central R. Co. v. Keegan, 160 U. S. 259; Northern Pacific R. Co. v. Peterson, 162 U. S. 346; Alaska Mininy Co. v. Whelan, 168 U. S. 86; Cleveland, etc., R. Co. v. Brown, 20 C. C. A. 147, 73 Fed. 970; Batch v. Haas, 20 C. C. A. 151, 73 Fed. 974. . The rule of duty to furnish a safe place has no application here. The place was as safe as any places of that kind are. Proper tools and machinery and competent workmen had been furnished. The accident resulted from the failure to take the proper precautions to stop the elevator. Judgment affirmed. The other Justices concurred.