Baker v. Allegheny Valley Railroad Co.
| Decision Date | 04 October 1880 |
| Citation | 95 Pa. 211 |
| Parties | Baker et al. <I>versus</I> Allegheny Valley Railroad Co. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
Error to the Court of Common Pleas of Clearfield county: Of May Term 1880, No. 151.
Frank Fielding and George A. Jenks, for plaintiffs in error.— Nolan had charge of the gravel train and the men; had authority from defendants to hire and discharge these men; his agency was established by the evidence in the cause, and this agency made his acts and knowledge those of the defendants: Woodwell & Co. v. Brown et al., 8 Wright 121. The declarations of Nolan made a few minutes before the accident occurred, concerning the unsafe condition of the derrick, were, therefore, admissible: Mullan v. Steamship Co., 28 P. F. Smith 25; Hanover Railroad Co. v. Coyle, 5 Id. 396; Wharton on Negligence, sect. 1173. The same rule and authorities will apply to the declarations of McGregor, the superintendent.
It was the duty of the defendants to furnish Baker with safe instrumentalities with which they required him to work. He had a right to rely upon the soundness and safety of the derrick, without his inspection or examination of it. It was furnished by the company, and should have been made and maintained safe and sufficient for the purpose for which it was used.
Baker is not chargeable with want of ordinary care in not an-anticipating the negligence of the defendants. It does not matter whether the defendants, through their officers or agents, knew or did not know that the ropes of the derrick were rotten from exposure to the weather; it was their duty to examine — not to know it, in such case, was gross negligence. The first duty of Baker to his employer was obedience, and it cannot be argued that because he went to work under a derrick, by order of his employer's agent, where he had not worked before, without first examining the structure, that he thereby waived the duty his employers owed him, and that he assumed all risks of danger, even an extraordinary peril: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 145; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Caldwell v. Brown, 3 P. F. Smith 453; Fraser v. Pennsylvania Railroad Co., 2 Wright 103; Patterson v. Pittsburgh and Connellsville Railroad Co., 26 P. F. Smith 393; O'Donnel v. Allegheny Valley Railroad Co., 9 Id. 248; Mullan v. Steamship Co., supra; Oak Ridge Coal Co. v. Reed, 5 W. N. C. 3; Addison on Torts, sect. 254 and notes; Noyes v. Smith, 28 Vt. 59; Bessex v. Chicago and N. W. Railway Co., 1 Wis. Leg. News 162; Smith v. Railroad Co., 42 Wis. 255; Cooker v. Railroad Co., 36 Id. 657; Ryan v. Fowler, 24 N. Y. 410; Lansing v. N. Y. Central Railroad Co., 49 Id. 521.
While Nolan and Baker were working for the same employers they were not such co-servants as would release the defendants for their negligence. Nolan stood in the place of the company towards Baker: Clarke v. Holmes, 7 H. & W. 943; Wedgewood v. C. and N. W. Railway Co., 41 Wis. 478; Wharton on Negligence, sect. 222; Corcoran v. Holbrook, 59 N. Y. 517; Flike v. Boston and Albany Railway Co., 53 Id. 549.
H. T. Beardsley and Wallace & Krebs, for defendants in error. —It was not pretended or alleged at the trial that either Nolan or McGregor held the position of superintendent of the company, or that they were doing anything else than working in the common employ of the defendants in the construction and finishing up of the work of building the Bennett's Branch road. They were in every sense of the word co-employees of Baker, working with him in the same common work, and performing duties and services for the same general purposes. They did occupy a different grade, but it did not change their relation to each other. The ultimate authority of the company was not delegated to either Nolan or McGregor, and, therefore, their declarations could not affect the company: Patton v. Minesinger, 1 Casey 393; Wood's Law of Master and Servant 809; Lehigh Valley Coal Co. v. Jones, 5 Norris 432. For the same reason this case is distinguishable from Mullan v. Steamship Co., supra, and kindred cases. The defendants were not bound to warrant that the derrick would always continue to be safe. Baker knew what the derrick was used for, and had more opportunity to know whether or not the guy ropes were defective than the defendants, and if he knew there were defects and gave no information, he must be held to have assumed all the attendant risks: Ryan v. Cumberland Valley Railroad Co., 11 Harris 384; Wood on Master and Servant 755, 800; Wharton on Negligence, sects. 212, 217; Mud River and Lake Erie Railroad v. Barber, 5 Ohio 541; Mansfield Coal Co. v. McEnery, 10 Norris 185; Frasier v. Pennsylvania Railroad Co., 2 Wright 104. It would be impossible for a railroad company to exercise such a supervision of its employees and machinery as is here demanded.
The deceased, to recover damages for whose death this action was instituted in the court below, was a laborer employed by the defendants in hoisting stones upon the cars of a gravel train. For this purpose a derrick was used on an upright wooden mast held in place by guy ropes, and while in the act of raising a heavy stone, one of the ropes broke and the mast of the derrick fell with great force on the deceased, inflicting an injury from the effects of which he died within an hour.
Whether the defendants were prima facie liable was the question; in other words, did the evidence adduced by the plaintiffs make out such a case as ought to be submitted to the jury? The learned judge below thought not, and accordingly nonsuited the plaintiffs.
The facts in regard to the rope may be briefly stated. It was about two inches thick, and there was every reason to believe that it was originally sufficiently strong for the purpose for...
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