98 F.2d 533 (8th Cir. 1938), 11179, Pittsburgh Plate Glass Co. v. Carey

Docket Nº:11179.
Citation:98 F.2d 533
Party Name:PITTSBURGH PLATE GLASS CO. v. CAREY.
Case Date:July 29, 1938
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 533

98 F.2d 533 (8th Cir. 1938)

PITTSBURGH PLATE GLASS CO.

v.

CAREY.

No. 11179.

United States Court of Appeals, Eighth Circuit.

July 29, 1938

Page 534

George Hoke, of Minneapolis, Minn. (Gordon J. Mangan, John J. Stoller and Nathan A. Cobb, all of Minneapolis, Minn., on the brief), for appellant.

H. B. Sherwood, of St. Cloud, Minn. (C. E. Phillips and W. H. Stewart, both of St. Cloud, Minn., on the brief), for appellee.

Before STONE, SANBORN, and VANVALKENBURGH, Circuit Judges.

VANVALKENBURGH, Circuit Judge.

This case was a law action for personal injuries in which appellee recovered a verdict in the sum of $6,750. The plaintiff below was an electrician and an employee of the Granite City Electric Company of St. Cloud, Minnesota, which was engaged in installing the electric wiring in the Holt Motor Company Garage then being constructed in that city. Appellant had already installed the metal work around the windows on the street side of the building preparatory to the setting of the plate glass therein. A big crate of large plate glass had arrived on a truck in charge of appellant's employees. It appears that those employees required additional help in unloading this heavy glass, and one of them approached one Wiehoff, an electrician in the employ of the Granite City Company, who was at work in the rear of the building, and asked him, Wiehoff, 'to give them a lift'. He asked Wiehoff if Carey would help also, and said 'he would pay us for our time '. Carey was not present when this conversation took place. He and Wiehoff were the only employees of the Granite City Electric Company engaged in work on this job. Carey, who had gone back to his company's shop for materials, returned soon afterwards and Wiehoff informed him that the glass men 'wanted a lift'. Carey said

Page 535

'let them unload their own glass '. Wiehoff said nothing to Carey about the offer to pay, but did say 'it will just take a minute '. Thereupon, both men walked over to the truck to furnish assistance.

In the unloading, the braces of the crate containing the glass gave way, and the crate with its content fell upon appellee, inflicting serious injuries. Both Carey and Wiehoff were employees of the same grade and class, and neither was clothed with authority over the other.

The Granite City Electric Company, the Pittsburgh Plate Glass Company, and the General Contractor for the erection of the Holt Motor Company Garage, were all subject to Part 2 of the Workmen's Compensation Act of Minnesota. Chapter 23-A General Statutes 1923, Mason's Minnesota Statutes 1927, Section 4261 et seq.

Section 4291 of the Act provides as follows:

'(1) Where an injury or death for which compensations is payable under part 2 of this act is caused under...

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