Abel v. Butler-Ryan Co.

COLLINS, J.2 Action by plaintiff, as administratrix, to recover for injuries received by her intestate while in defendant’s employ as a common laborer, from which injuries he died. At the close of plaintiff’s testimony the court instructed the jury to return a verdict in defendant’s favor. The facts, as shown by the evidence, were as follows: Defendant corporation was erecting a large building, and had brought the basement wall to its full height. On this wall the joists for the first floor had been placed, and a rough floor laid. It then became necessary to lower a large iron tank from this floor to the basement, and, to do this, three skids were placed with the upper ends resting on the floor at the edge of an opening which extended to the south wall of the basement, 15 or 20 feet distant, and the lower ends on the ground below, no basement floor having been laid. The plan was to slide the tank down these skids, and, to prevent its striking and wedging against the wall when it reached the ground, skids were laid with the upper ends on the top of the wall and the lower on the ground, intersecting or intercrossing the skids first mentioned three or four feet from the ground. These skids were placed in position by a gang of men at [17] work on the building but under the immediate supervision of their foreman, Emmett Butler. About this time his brother, Cooley Butler, the foreman of another gang of men also at work on this building, appeared, and from that time seems to have had actual charge of the lowering. He directed that a chain be passed about the tank, which weighed about 4,000 pounds, and connected with block and tackle, so as to hold it as it descended. As it was started down the skids the latter held the “snub rope” which controlled the block and tackle. The tank had been lowered a short distance on the skids, when it was stopped, and Cooley Butler, handing the rope to one of the men, stepped over to the top of the wall, directly opposite the tank, and noticed the skids which had been placed to prevent its striking the wall. Thinking that it would be easier to put the tank in place if these skids were dropped so as to lie flat on the ground, he suggested to Emmett that this plan be adopted, and, when the edge of the tank rested on them, those used for sliding it down could be pried out of the way, and, by means of the block and tackle, the tank easily lowered so that it would rest upon the skids which had been dropped to receive it. At this time the hour for quitting work had been reached, and most of the men had started home, — only those remaining who were actively at work upon the tank. This plan was agreed upon, and, turning to the men, Cooley Butler ordered that two or three of their number go down into the basement, pull the skids down, and let them lie. Although the order was given by Cooley Butler, it was, to all intents and purposes, that of both foremen. Thereupon plaintiff’s intestate and another workman went around by a basement door, while one Conners slid down the skids, reaching the ground first. That Cooley Butler knew that three men had gone to obey his order is apparent from his testimony. Emmett Butler was not called upon as a witness, but that he knew, or ought to have known, that the three men had started to do the work, is also apparent. ' Conners pulled down the skids, as directed, before the other men got there, by going under those on which the tank rested, and pulling by the ends, — the most feasible plan to promptly accomplish the work, and quite as safe a method as could be adopted, for he would be quite as safe under the tank as in front of it. The skids were [18] flat on the ground when the other men reached the place, but a piece of joist lay partly across them. It appeared that this joist had been lying across the skids while they were in their first position, but for what reason was not shown. Evidently thinking that this should be removed, Abel, the plaintiff’s intestate, stepped partly under the standing skids, and seized hold of the joist. Just before this Cooley Butler gave an order to lower the tank. It descended about one foot, when the skids slipped, the tank partly fell, and Abel received the injuries from which he died. It seems that Butler gave the order to lower without paying the slightest attention to the whereabouts of any of the men except Conners, and, while he testified that he thought the latter was out of the way, it appears that Conners only escaped injury by jumping after he noticed that the skids were slipping. Under these circumstances, the questions presented — a verdict for defendant having been directed — are two: First, was it for the jury to determine whether either or both of the Butlers were vice principals of the defendant master, or fellow servants of the intestate? Second, if they were vice principals, was Cooley Butler negligent when he gave the order to lower the tank? We are of the opinion that both of these questions should have been submitted to the jury. It was quite as much the duty of the master to see to it that the skids were properly placed before the workmen — nothing but common laborers — undertook the difficult and dangerous task of sliding the heavy tank down into the basement, as it was to furnish proper and sufficient material with which to do the work itself. This was understood, apparently, for the skids were put in position under the immediate supervision and direction of the foreman Emmett Butler. Another foreman seems to have then taken charge, and at his suggestion a chain was put around the tank, so that it might be controlled by block and tackle to which the chain was attached, — an additional means of safety. Subsequently to this, and after the lowering process had commenced, the three men were sent to the basement, there to do a thing which naturally brought them into a place of exceedingly great danger, should the skids give way, or the tank fall. This was upon the order of the foreman who had assumed charge of the work, by consent of the other foreman, and while the intestate was in this dangerous place the accident happened. We [19] need not repeat the rule so often laid down by this court, by which to ascertain when an employé becomes the representative of the master as to other employés. But under this rule the first question above noted was for the jury. And, as to the second, it was for the jury to determine, if they found either or both of the Butlers to have represented the master in this hazardous undertaking, whether or not there was negligence in giving the order to lower the tank without notifying all the men who had gone into the basement to stand out of the way, or at least to exercise some degree of care to ascertain that they were not in danger. The fact that Cooley Butler waited to give the order until he saw the skids lying down upon the ground was not conclusive upon this question of negligence. A new trial must be had. Order reversed. Footnotes [2] Mitchell, J., absent, took no part.