Dillman v. Burke

CAULFIELD, J. (after stating the facts). — The doctrine that one is not responsible for the negligence of an independent contractor, his servants, agents, or sub-contractors, in the execution of work, has no place in this case for the reason that the conduct complained of was not that of the independent contractors, etc., but was that of the hotel company’s own agent and servant, the chief engineer. The case should rather be governed by the broad doctrine “that whenever one person is by circumstances placed in a position with regard to another, that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such injury.” [Heaven v. Pender, 11 Q. B. D. 503, 509.] See Loehring v. Construction Co., 118 Mo. App. 163, 94 S. W. 747, where that doctrine is applied by this court in a carefully considered opinion written by Judge Nortoni. Now, here we have a situation wherfe, if plaintiff’s evidence is to be believed, the work of testing the new cable, which alone remained to be done to complete the job undertaken by the plaintiff’s employers, did not include the task or responsibility of turning on the water power, but was confined to watching and adjusting the new cable while the elevator was being operated by the power over which the defendant, Planters Hotel Company, retained control. But, however that may be, the defendant’s chief engineer was in a position of power and authority over the entire mechanical plant of the defendant and reasonably to be assumed to have su 146 perior knowledge concerning what was necessary and proper to be done in order to turn on the power. At least he assumed to have that knowledge, by undertaking to direct the plaintiff how to turn the power on and to inform the plaintiff, after directing his actions, that the power was on. Plaintiff was but a mechanic, skilled in his particular trade, it is true, but acting outside of his trade as to this cylinder and valves. He betrayed his ignorance of the subject by his question concerning the functions of other valves and displayed his dependence upon the directions of the chief engineer, and recognized his superior position and authority by obeying his directions implicitly and in detail. It is manifest that any one of common sense who thought would at once have recognized that the. plaintiff would rely upon the statement by the chief engineer that the power was on, and that if the chief engineer made the statement without exercising ordinary care to ascertain if it was true, he would cause danger of injury to the person of the plaintiff. The duty therefore devolved on defendant through its chief engineer to exercise such care. Now how did the chief engineer perform that duty? He testified that he did not know whether the power was turned on or not, and he took no steps to ascertain, yet, if we take plaintiff’s evidence to be true, as the jury undoubtedly did, immediately before plaintiff went beneath the elevator car to release the safety catches the chief engineer after directing the plaintiff what to do in order to turn the power on and watching him follow the" directions, said, “now your power is on” and then stood and directed and watched the plaintiff while the plaintiff, relying upon the statement that the power was on and lulled into a sense of security by that false statement, released the safety catches and brought the elevator down upon himself. The evidence justifies the inference that'the elevator fell upon the plaintiff by reason of the fact that the power was not on, and that 147 by negligently inducing or causing tbe plaintiff to release the safety catches upon tbe faith of tbe power being on tbe defendant’s negligent conduct, acting through its chief engineer, was tbe proximate cause of tbe plaintiff’s injury. Nor are we able to agree that tbe plaintiff was guilty of contributory negligence as a matter of law. His testimony tended to prove that be possessed only a very limited amount of knowledge concerning tbe machinery governing tbe water power. Whether, nnder tbe circumstances, with bis limited knowledge, bis manner of attempting to turn on tbe power was negligent, and whether be was negligent in acting on tbe chief engineer’s statement that “now your power is on” without taking precautions to verify that statement, there being nothing to indicate that tbe statement was false, were clearly questions of fact for tbe jury. Tbe order of tbe circuit court setting aside tbe verdict is reversed and tbe cause remanded with directions to reinstate tbe verdict and enter judgment for tbe plaintiff thereon as of tbe date when tbe verdict was returned. Reynolds, P. J., and Nortoni, J., concur.