American Car & Foundry Co. v. Rocha

GARLAND, Circuit Judge. Rocha sued the foundry company to recover damages for personal injuries alleged to have been caused by the negligence of the latter. The plaintiff recovered a verdict, and defendant assigns error. The only evidence introduced was that of the plaintiff. It showed that on the 17th day of May, 1917, the plaintiff, while in the employ of the defendant, was directed by a foreman to go under a railroad car, which had been raised from its trucks and was resting on some blocks, to tighten up some bolts and nuts. While the plaintiff was partially under the car, with his left leg over one of the axles of the truck, the foreman, without any warning to the plaintiff, caused the car to be moved by a derrick or hoisting machine. The movement caused the car to fall upon plaintiff, thereby breaking one of his legs. Counsel for defendant moved for a directed verdict in its favor, upon the ground that the foreman was a fellow servant of the plaintiff, for whose negligence the defendant was not liable. The same point was raised in other ways. This is the only question specified and discussed in the briefs of counsel. The plaintiff’s petition in substance alleged that the defendant was negligent in ordering the plaintiff under the car and in moving the same while he was still under the car without warning. The defendant’s answer denied negligence and pleaded contributory negligence. The defense of fellow servant was not pleaded. We think it is immaterial [298] whether the foreman was a fellow servant of the plaintiff or not. In a case like the present it was the positive duty of the defendant to warn the plaintiff that the car was about to be moved. This duty could not be delegated to the foreman by the defendant, so as to relieve itself of liability for his negligence. We do not deem it necessary to cite authority in support of a rule so well 'established. The judgment below is affirmed.