American Bridge Co. v. Valente

• Decision Date: 24 May 1909
• Citation: 23 Del. 370,73 A. 400
• Court: Supreme Court of Delaware
• Parties: AMERICAN BRIDGE COMPANY, a corporation existing under the laws of the State of New Jersey, defendant below, plaintiff in error v. FRANCESCO VALENTE, plaintiff below, defendant in error

73 A. 400

23 Del. 370

AMERICAN BRIDGE COMPANY, a corporation existing under the laws of the State of New Jersey, defendant below, plaintiff in error v. FRANCESCO VALENTE, plaintiff below, defendant in error

Supreme Court of Delaware

May 24, 1909

Supreme Court, adjourned January Term, 1909.

WRIT OF ERROR to the Superior Court for New Castle County, No. 2 June Term, 1908.

The judgment is reversed.

William S. Hilles for plaintiff in error.

Leonard E. Wales for defendant in error.

NICHOLSON CH., LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

PENNEWILL, J.

The defendant in error brought an action in the Court below to recover damages for personal injuries alleged to have been caused by the negligence of the plaintiff in error.

There is practically no dispute respecting the material facts in the case, and the following statement of the testimony is, we think, sufficient for a proper understanding of the questions raised and argued before this Court.

The American Bridge Company, the plaintiff in error, was at the time of the accident to the defendant in error, engaged in the operation of a plant near Edge Moor, in this State, for the manufacture of bridges and other articles made of structural steel and iron. The plaintiff below was employed by the company as a laborer, at first in digging trenches and a few days before the accident was engaged in rough painting in and about the shop. A number of large columns, each weighing a ton or a ton and a half, had been completed and were ready for loading upon a car. The columns thus completed were painted, except the parts thereof which rested upon the skids, and which could not be painted until the columns were moved.

The floor upon which the columns were resting was about level with the top of the sides of a gondola car into which they were to be loaded, the car itself running on tracks in a depression along the wall of the shop. In order to load the columns, two chain hoists, each running on movable pulleys near the roof of the shop, were employed. The hook connected with each of these two chains hoists was attached to the column where it lay upon the skids. It was then raised by means of the chain hoists to a height sufficient to enable the projections on the columns to pass over the side of the gondola car, and then with two or more men pushing on each end, the column thus suspended was pushed along the movable trolleys, and then loaded into the car. This work was performed by what was known as the "loading gang," which consisted of a foreman and four laborers, the loading being done under the shipping clerk.

One of the columns had been placed upon the gondola car, and the loading gang were about to place the second column on the car when Valente, the plaintiff, was instructed by the general foreman of the company by signs to go upon the car and with a large brush paint the small places on the first column where it had originally rested on the skids. He was doing this in a kneeling position, with his back turned towards the men who were loading the second column, and in plain view of, and was seen by the members of the loading gang. When the second column had been raised to a sufficient height, the loading gang, two men at each end, pushed the column on the movable trolleys to a position over the car in order that it might be lowered into place. In so doing, one end of the column struck the column in the car knocking it down, and thereby injuring Valente's foot which was caught and crushed between the first column and the floor, and so badly injured as to require amputation. The second column remained suspended in the hoists.

The plaintiff below could neither speak nor understand the English language. He was a member of a gang composed of Italians who worked under the directions of an Italian boss. He had been so working for about a month and a half prior to his injury, but had not done any painting on iron columns. The company being short of men ordered this Italian boss to send some of his laborers to do some painting, and the plaintiff below was one of the men sent for the purpose. He received no instructions other than by signs from the foreman, and no warning was given him of any danger connected with the work.

Upon the conclusion of the testimony on both sides the Court was asked to instruct the jury to return a verdict in favor of the defendant. This request was refused by the Court, and such refusal is assigned as error. It is this assignment of error, and this alone, upon which the plaintiff in error relies for a reversal of the judgment below,--its contention being that there was no evidence in the case which would warrant the submission of any question whatever to the jury.

The determination of the assignment of error relied upon by the plaintiff in error, necessarily involves a consideration of the following questions:

1. Should the trial Court have submitted to the jury the question, whether the plaintiff below, and his co-employees at the time of the accident, were or were not follow-servants?

2. If it was the duty of the Court, and not of the jury, to determine the question of fellow-service, then were the plaintiff below and his co-employees--the loading gang--fellow-servants?

3. Was there any testimony tending to show that it was the duty of the defendant company to instruct the plaintiff respecting the work he was directed to do, and warn him of any dangers incident thereto?

4. Was there any testimony tending to show that it was the duty of the company to have made and promulgated rules governing the work in which the plaintiff below was engaged?

5. Was there any testimony tending to show that the place in which the plaintiff was ordered to paint the column was an unsafe place within the meaning of the law?

No question was raised by the plaintiff below as to suitable and proper appliances, or the sufficiency and competency of fellow-servants. It is not necessary, therefore, for us to consider those matters at all.

Did the Court below err in submitting to the jury the question, whether the loading gang were or were not the fellow-servants of the plaintiff below when engaged in painting the iron column?

We think there can be no difference of opinion respecting the law upon this point. If the facts that are necessary for its determination are not disputed, then clearly it is for the Court to decide and not the jury.

In Labatt on Master and Servant, at Section 494, the rule is stated as follows:

"What servants are in a common employment is not a question of fact exclusively, nor is it solely a question of law. It depends for solution upon both law and fact. But when the necessary facts for determining the question are undisputed, it is then simply a question of law. The Court, therefore, may nonsuit the plaintiff, or may direct a verdict for the defendant, or set it aside if rendered for the plaintiff, where the only negligence in evidence is that of a fellow-servant acting in the performance of his duties as a servant."

And at Section 511, the learned writer continues: "It has frequently been explicitly declared, and is taken for granted in almost all the cases cited in this chapter, that it is for the Court to say whether or not the negligent employee was a vice principal in every case in which the facts are clearly established, and show precisely what were the respective duties of the plaintiff and the delinquent co-employees, and what relation they bore to one another. Under such cricumstances, it is error to submit to the jury the question whether the defense of co-service is or is not available."

Such has been the principle, or rule, upon which the Courts of this State have uniformly acted, and we have known of no exception to the rule prior to the present case.

The important question, therefore, is, was there any conflict in the testimony below respecting those facts that were necessary to determine whether or not the relation of fellow-service existed? It is true that the plaintiff below denied certain statements made on behalf of the defendant,--such as, the time during which he had been working as painter; whether in the shop or yard, that he had been instructed in the work of painting; that he had painted out the skid marks on the second column before getting on the car, and while it was suspended in the hooks, that the general foreman did not bring Valente, the plaintiff below, to Shop "C," on the morning of the accident, but found him there engaged in painting the second column, when he directed him to get on the car, that after being transferred from the gang of laborers to that of painters, Valente did not continue to be under his Italian foreman, and was not kept at work in the yard.

But these controverted facts are quite unimportant and immaterial to the main question we are considering, and there is no conflict in the testimony respecting those facts we have stated as undisputed, and which are necessary and sufficient to determine whether the relation of fellow-service existed between the plaintiff below and his co-employees--the loading gang--at the time of the accident.

We are clearly of the opinion, therefore, that the Court below erred in submitting such question to the jury.

2. The assignment of error relied upon by the plaintiff in error makes it necessary for this Court to decide whether the plaintiff below and his co-employees were or were not fellow-servants, because if they were not, the Court below did not err in refusing to direct the jury to return a verdict in favor of the defendant.

It is not denied that the plaintiff, Valente, and his co-workers at the time of the accident were the employees of a common master. Were they not also at such time engaged in a...