McKillop v. Superior Shipbuilding Co.

KebwiN, J. Tbe question involved upon this appeal is whether tbe complaint states a cause of action against tbe defendant Superior Shipbuilding Company. This question turns on whether tbe injuries received by plaintiff were caused by the negligence of a fellow-servant of tbe plaintiff. We have set out in the statement of facts the material allegations charging negligence and ne'éii not repeat them here. From these allegations it appears th\t tbe plaintiff and defendant Bennett were engaged in tbe common employment of removing the pile-driver at tbe time of the accident, tbe defendant Bennett being foreman, and plaintiff one of tbe crew so engaged, and that through tbe negligence of defendant Bennett a part of tbe pile-driver fell and injured plaintiff. [460] 'True, it is alleged that defendant Bennett negligently prepared the pile-driver for removal by loosening certain fastenings holding the same in position so that said pile-driver or a part thereof was likely to fall, which facts were known to defendant Bennett but were unknown to plaintiff, and that plaintiff had no means of knowledge thereof, and was assured by defendant Bennett that the bent, or part which fell, was .-securely fastened, whereas it was not, in consequence of which it fell and caused the injury. The complaint expressly ■alleged a common employment, namely, that defendant Bennett and his crew, of which plaintiff was one, were at the time ■of the accident engaged in removing the pile-driver or a bent thereof. So we cannot escape the- conclusion that the negli.gence of defendant Bennett that caused the injury was the negligence of a fellow-servant of the plaintiff. The loosening of the fastenings preparatory to taking down the pile-•driver was a mere detail of the work in which defendant Bennett and plaintiff were engaged when the accident occurred which caused the injury. The instant case is quite analogous to Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269. In that case the foreman and plaintiff were engaged with others in building a tank. Plaintiff was under •the supervision of the foreman. At the time of the accident plaintiff was engaged in the line of his duty in helping to raise the tank. The hoisting apparatus provided for raising the bents consisted of a windlass, three tackle blocks, two ropes, the tank itself, and an anchor post set in the ground sixty feet distant from the tank, opposite to and in line with the bents. After the tank had been raised a few feet, the anchor post, which had been sunk in- the ground, suddenly pulled out and the bent fell, causing the injury. The jury found that the foreman was negligent in setting the anchor post, and it was held that such negligence was the negligence of a fellow-servant of plaintiff engaged in a common employment, therefore plaintiff could not recover. See, also, Gereg [461] v. Milwaukee G. L. Co. 128 Wis. 35, 107 N. W. 289. No claim is made in tbe complaint that defendant failed to furnish suitable and safe machinery and appliances or that defendant Bennett was incompetent. As has often been ruled by this court, whether employees are fellow-servants does not depend upon the rant or grade of the negligent servant, but “upon the nature or character of the act in the performance of which the injury was incurred.” Dwyer v. Am. Exp. Co. 82 Wis. 307, 52 N. W. 304; Stutz v. Armour, 84 Wis. 623, 54 N. W. 1000; Wiskie v. Montello G. Co. 111 Wis. 443, 87 N. W. 461; Okonski v. Pennsylvania & O. F. Co. 114 Wis. 448, 90 N. W. 429. • The plaintiff relies upon several decisions of this court, and mainly upon Holloway v. H. W. Johns-Manville Co. 135 Wis. 629, 116 N. W. 635. It is true that the Holloway Case is quite similar in many respects to. the case now before us, but we believe it is distinguishable. In that ease the boiler was prepared by the night crew. The plaintiff had no connection with the blowing off and preparing of the boiler for cleaning. He came to the spot in the morning to clean the boiler as he was directed to do. 'Mere outside inspection would not disclose that it was not thoroughly cooled. The superior officer ordered plaintiff to go to work in the boiler at once, assuring him that it had been tested and was cool enough. It is true that in the case before us it is alleged that Bennett assured plaintiff there was no danger, and that plaintiff did not know the danger, but plaintiff was engaged with Bennett in the act of taking down the pile-driver and in position to observe the details of the work, which must have been as obvious to him as to the defendant Bennett. We are also cited to Rankel v. Buckstaff-Edwards Co. 138 Wis. 442, 120 N. W. 269; Grams v. C. Reiss C. Co. 125 Wis. 1, 102 N. W. 586; Sparling v. U. S. S. Co. 136 Wis. 509, 117 N. W. 1055; Halwas v. Am. G. Co. 141 Wis. 127, 123 N. W. 789, and some other cases. We shall not discuss these cases, but. [462] simply say tbat we do not regard tbem controlling bere, or •out of barmony witb tbe conclusions reached in tbe instant case. Tbe court is of opinion tbat tbe complaint does not •state a cause of action against tbe defendant Superior Shipbuilding Company, and therefore tbe judgment of tbe court below must be affirmed. By the Court. — Tbe judgment below is affirmed. .ViNJE, J., took no part.