Oelschlegel v. Chicago Great Western Railway Co.

COLLINS, J. This was a personal injury action in which plaintiff had a verdict. He was in defendant’s employ as a machinist’s helper in a repair shop, and one Ferguson was a machinist in the same shop. Robb was the foreman of all the shop men, but one Dressel had charge of the gang in which plaintiff worked. On the day of the accident Ferguson was engaged in “stripping” a locomotive which had been run into the shop for repairs, and for that purpose had been placed over the ordinary shop pit. Wishing to remove what is known as the front door of the locomotive, Ferguson, in the presence of plaintiff, erected a temporary scaffold, either just above the pilot, or, if the pilot had been detached, as was testified to by one or two witnesses, just above its usual position, that the door might easily be reached and handled. He used in the construction of this scaffold, and as the flooring thereof, two planks about 5 feet long, 8 inches wide, and 2 inches thick. Ferguson then called on Dressel for a man to assist, and plaintiff was directed by Dressel to render the necessary aid. Both men then mounted the scaffolding, and while removing the door the plank on which plaintiff stood broke in two, and he fell to the bottom of the pit, receiving the injuries for which damages are claimed. The plank broke because a large knot extended clear across it, but the evidence was plenary and undisputed that defendant company had furnished and provided in and about the repair shop an abundance of sound plank and other material out of which a safe and secure scaffold could have been constructed. 1. No question can be raised on the evidence as to the relation between Ferguson and plaintiff while both men were at work in the [331] shop. They were fellow servants, both engaged in the same common employment, — one as a machinist, the other as a machinist’s helper. Ferguson had no general or special authority over the plaintiff, and on the occasion referred to had to call on the gang foreman before he could have plaintiff’s services or aid. Nor was there anything in the nature of the work or service which these men performed from which it could be determined that Ferguson was a vice principal. He was in the common employment, — no more the master’s representative as to plaintiff than the latter was such representative as to him. 2. The erection of the scaffold was itself a part of the work which was to be performed, its erection being necessary in order that the men might reach and properly handle the door. It was a temporary appliance, built during the progress of the work of “stripping” the locomotive that it might be repaired, and as a part of the work, by plaintiff’s fellow servant, one of defendant’s employees. Defendant company had provided a sufficient quantity of proper material, and it was plaintiff’s fellow servant who disregarded this fact, and used a defective plank. Under such circumstances it has been held by this court, without a single exception, that the master is not liable in case of injury. Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020; Fraser v. Red River Lumber Co., 45 Minn. 235, 47 N. W. 785; Marsh v. Herman, 47 Minn. 537, 50 N. W. 611; Soutar v. Minneapolis Int. Elec. Co., 68 Minn. 18, 70 N. W. 796. In every one of the eases cited by plaintiff’s counsel from our reports the rules herein mentioned and applied were distinctly recognized. Judgment reversed.