Albert Miller & Co. v. Wilkins

• Decision Date: 07 October 1913
• Docket Number: 1,964.
• Parties: ALBERT MILLER & CO. v. WILKINS.
• Court: U.S. Court of Appeals — Seventh Circuit

209 F. 582

ALBERT MILLER & CO. v. WILKINS.

No. 1,964.

United States Court of Appeals, Seventh Circuit.

October 7, 1913

A servant may rely absolutely on the master to perform his duty to furnish a safe place to work.

Defendant in error recovered a judgment against plaintiffs in error, a copartnership, in the sum of $3,000 for personal injuries received as a result of a defective hoisting device, while in the employ of plaintiffs in error upon the premises of the Murphy Company, a corporation, which was made a party defendant to the complaint herein, but which the jury failed to include in its verdict of guilty.

From the record it appears that plaintiffs in error were using the premises of the Murphy Company in removing therefrom a large quantity of potatoes which they had purchased from the Murphy Company and which they were to remove at their own cost. In doing so, they were given the right to use so much of the Murphy Company's premises as necessary, including the hoisting apparatus. This latter consisted of a block and tackle fastened to a joist near the ridge of the roof by means of a number of strands of wire passing through the eye of the block and around the joist. A rope was run through the block and over the sheave. One end of the rope was attached to the object to be hoisted from the cellar of the warehouse while the other was used by the operator in applying power for hoisting. The Murphy Company had been accustomed to lift by horse power. Plaintiffs in error substituted their own rope and the weight of a man upon the free end of the rope whereby a bag of potatoes, being of less weight than the man was lifted to the desired elevation. In adjusting the device plaintiffs in error were obliged to send a man up to the block, so that, had plaintiffs in error so directed, the condition of the block and its wire lashing might have been ascertained. After all of the potatoes save a few bushels had been removed, and after some five or six days' use of the device, the wire lashing gave way under the weight of defendant in error and he was precipitated into the cellar, a distance of about ten feet, whereby he was injured. Thereupon he brought this suit, charging plaintiffs in error and Murphy Company jointly and severally with negligence in not furnishing him with a safe place in which, and safe appliances with which, to work. The trial resulted as above set out. Plaintiffs in error have brought the cause to this court, assigning as error that the court refused to take the case from the jury as to Miller & Co. and in telling the jury that it was the duty of Miller & Co. to use ordinary care in providing a safe working place and a safe appliance in and with which defendant in error was to work, and also that the court committed further error in telling the jury how they might arrive at the amount of damages if they found defendants guilty, and in giving certain instructions as to what facts must be proven before Murphy Company could be held liable.

S. T. Swansen, of Madison, Wis., S. L. Lowenthal and Fred Lowenthal, both of Chicago, Ill., and T. C. Richmond and R. W. Jackman, both of Madison, Wis., for plaintiffs in error.

W. H. Frawley and T. F. Frawley, both of Eau Claire, Wis., for defendant in error.

John Evans, for Murphy Co.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

KOHLSAAT Circuit Judge (after stating the facts as above).

There can be no doubt, under the facts presented, as to the liability of plaintiffs in error for the injuries sustained by defendant in error. They were clearly charged with the duty of providing safe instrumentalities for their servants while at work, and defendant in error had a right to rely upon their performance of that duty.

It is said in Labatt, Master & Servant, Sec. 172:

'Both upon principle and authority it is clear that a master is answerable for defects in any instrumentalities which he has temporarily taken over from the owner and made a part of his own plant. In such cases the elements of possession and the exercise of control are decisive. * * * So far as regards his obligations to his servants, he must be considered as the owner pro tempore. This principle is applicable whether he has borrowed the appliance in question or has hired it for a specific consideration or has taken possession of it for a definite or an indefinite period with

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