Boland v. Great Northern Ry. Co.

GILBERT, Circuit Judge (after stating the facts as above). [1] The testimony set forth in the foregoing statement of facts, which was admitted over the objection of the plaintiff, was offered in response to certain testimony of the plaintiff. The complaint had charged the defendant with negligence. It had not named any officer of the defendant, nor had it set forth that the duty of the master to furnish safe appliances had been delegated to any one. On the trial the plaintiff testified, however, that. Pat Boland, the section foreman, furnished the tools to work with; that he hired and discharged the men, and there was nobody else that furnished tools and hired and discharged the men, other than the foreman; that no warning was given the plaintiff as to the condition of the tool; that the foreman came along, and brought him the chisel, and said, “Take that chisel and hammer and cut these two corners out;” that he did so, and, while doing it, he received the injury to his eye. It was to rebut this testimony that' the evidence above alluded to was offered by the defendant. It was admitted on the theory that the defendant had the right to show, if it could, that Boland, in furnishing the plaintiff with the chisel, did so without authority of the defendant, and, in fact, did so contrary to the defendant’s directions. The testimony so admitted does not tend to rebut the proof that the foreman had the authority to hire and discharge the men, or that he furnished the plaintiff with the cold chisel which he was using, or that he had authority to furnish the men with tools. But it. does tend to show that his authority was limited, and was to be exercised only in a specified way, and that he had no authority to furnish tools other than those which were supplied him by the defendant, and which were to be obtained by him in a prescribed manner. [2] The plaintiff contends that, the defendant having given authority to the foreman to’ hire and discharge the men and to furnish them tools, it follows that its whole duty to furnish such employés with safe tools was, delegated to the foreman, and that it is bound by any act which he did in the discharge of that duty — citing Hermanek v. Chicago & N. W. Ry. Co., 186 Fed. 142, 108 C. C. A. 254; Telander v. Sunlin (C. C.) 44 Fed. 564; Port Blakely Mill Co. v. Garrett, 97 Fed. 537, 38 C. C. A. 342, and other cases — and that therefore the testimony which was objected to should have been excluded. We need not ex [488] press an opinion upon ¿he question which is thus presented. It does not appear that this contention was ever brought to the attention of the comt below. There was no motion to strike out the testimony on the ground suggested, nor was there any request for an instruction in accordance with the plaintiff’s views. [3] On the contrary, the plaintiff, by his failure to except. to the instruction, consented to the submission of the- case to the jury, in the manner in which the issues were stated in the charge, including the question whether the foreman was acting within the scope of his authority, and instructing them that, if he was acting outside the scope of his authority, his acts were not binding upon the defendant. The plaintiff is in no position now to assign error to the admission of the testimony. The judgment is affirmed.