Wilczynski v. Pennsylvania Railroad

The opinion of the court was delivered by Garrison, J. It was not error to deny the motions to take the case from the jury. There was ample testimony from which the jury could find that the dislodgment of the top girder of the highest pile by the rocking of the boat was dne to the fact that the piles of girders had not been kept at a uniform height, as the testimony shows that they should have been, and as the fatal result in this case demonstrated. An accident from this cause would be due not to the work done or to be done by the servants of the defendant, but to the plan adopted for the proper distribution of the girders among the several tiers or piles, a matter over which such servants had no control, and in which they had no participation. Owing to the great weight of the girders^ the tier or pile upon which any particular girder would be placed was the pile upon which it was mechanically lowered- by the derrick operated under orders from the captain of the barge, who, in respect to the adoption of the method in which the girders should be piled up on the deck of the boat, occupied the dominant position of master. Where, however, the, method provided for doing the work, or a part of it, has a direct hearing upon the safety of those employed in and about such work, a duty arises on the part of the master of such employes to use reasonable care to provide a safe method of doing tlic work, or at least to avoid a dangerous method if the exercise of reasonable care would produce that result. The state and federal decisions are collected in the American Digest, under key number Master and Servant 130. This duty of the master, like the duty to use reasonable can; to provide a safe place of work, with which it is closely' assimilated in legal principle, is one that the master owes to his servants, and lienee is one for the breach of which the master cannot escape liability by entrusting the perform [182] anee of such duty to others, be they managers, agents, strangers, volunteers or fellow servants. As we said in the ease of Laragay v. East Jersey Pipe Co., 77 N. J. L. 516: “When a master thus owes a duty to his servants it is immaterial what agency he may employ for its performance, it remains his duty,.and he cannot escape liability for its negligent fulfillment by delegating its performance to one or more of the very class to whom such duty is owing. The test is not what agents did the master employ in the performance of a given dut3r, but whether the duty itself was one that he owed to his servants or one that they owed to him.” Obviously, in the present ease, the employes of the defendant owed no duty to it to provide a reasonably safe method of doing the work in which they were ordered to assist, and it is equally obvious that such a duty was owing-by the defendant to its servants when it ordered them to engage in a work where their reasonable safety depended upon the method of doing it. Inasmuch as the defendant could not avoid this duty by delegating the performance of it to the captain of the barge, or by passively permitting it to be performed by him, it was immaterial upon the questions raised by the motions to nonsuit and to direct a verdict, what relation, if any, existed between, the lighterage company and the Pennsylvania Railroad Company, or between the servants employed by the one and those employed by the other. For as the duty of the defendant to its servants could not be escaped by the delegation of its performance, neither could it be- avoided by ordering them to work at an employment over which the defendant in fact exercised no control. The duty of the master followed the employment engaged in by the servant- under the order of the master. The abandonment of a duty or the Abdication of the power to perform it, does not discharge the duty or cancel the master’s liability for its non-performance. The question remains, Was the duty in fact performed? and this, under the testimony in the present case, was a question for the jury. There was, therefore, no error in the denial of the motions to take the ease from tire jury. [183] The exception to the charge which is the basis of the remaining ground of appeal presents the same legal question in a slightly different form. The language of the charge covered any duty that was owed by the defendant to the plaintiff’s intestate, and hence covered the one we have been considering, although no particular duty was specified. The ground of the exception, however, was not that the character of the duty wras not specified, but that no duty of any character existed. When the exception was taken by-counsel for the defendant, he was asked by the court, “Your point being just what?” To which inquiry the response was, “We claim that under the evidence we were under no duty at all to this plaintiff’s intestate during the operation of the unloading and the transferring and stowing of the girders.” This exception presents, therefore, the same question that w-as presented by the motions to take the case from the jury, and hence, for the reasons given upon that branch of this appeal, the charge was not erroneous upon the ground pointed out by ihe exception or upon any other ground pointed out in the argument of this appeal. Finding no error in any matter assigned as a ground of appeal, the judgment of the Supreme Court is affirmed. For affirmance—The Chancellor, Garetson, Swayze, Trexciiaud, Bergen, Mint urn, Katjsch, Black, White, HEPPENnEIMEK, WILLIAMS, GARDNER, JJ. 12. For reversal—The Chief Justice, Parker, J. 2.