Cleveland, C., C. & St. L. Ry. Co. v. Brown

• Citation: 73 F. 970
• Decision Date: 04 May 1896
• Docket Number: 72.
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. BROWN.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

73 F. 970

CLEVELAND, C., C. & ST. L. RY. CO. v. BROWN.

No. 72.

United States Court of Appeals, Seventh Circuit.

May 4, 1896

If necessary and safe tools and appliances are furnished by a railroad company for the use of a foreman and a gang of laborers under his control, in doing a given piece of work but they are not employed, or are unskillfully employed through the negligence or want of skill of the foreman, the company is not liable for a resulting injury to one of the laborers; but if the tools and appliances used are insufficient, and are employed because better were not furnished, the company is liable.

This is an action for personal injuries suffered by the defendant in error while in the service of the plaintiff in error as one of a crew of men called the 'bridge gang,' and employed generally in building and repairing bridges, depots platforms, and other structures, and, at the time of the injury complained of, engaged in taking down a transfer shed near Cairo, Ill. Upon the first hearing of the case the judgment below was affirmed. 18 U.S.App. 10, 6 C.C.A. 142, 56 F. 804. But in view of the opinion of the supreme court in the case of Railroad Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, decided soon afterwards, a rehearing was granted. The reargument was had at our May session, 1894 Justice Harlan presiding, and on June 9, 1894, a certificate was made of questions upon which the instruction of the supreme court was desired. The certificate contained a copy of the declaration, and a statement of facts, which is given below. The declaration contains three counts, which, after alleging, among other things, that Patrick C. Scullen was foreman of the bridge gang of which the plaintiff was a member, and had full authority and control over the men, with power to hire and discharge them, and therefore stood to them as the representative of the defendant, makes the following charges of negligence: In the first count, that 'said Scullen, as such foreman aforesaid, by his gross negligence in managing and directing the fellow servants of plaintiff in the performance of the work aforesaid, caused a portion of the roof of that part of said building so being torn down as aforesaid to be thrown with great force and violence against and upon plaintiff. ' In the second count, in substance, that the defendant did not furnish or use, or cause to be used, the necessary tools, implements, or appliances for the safe tearing down of the portion of the building or structure which was to be taken down, but, on the contrary, negligently failed and refused to furnish and use the same; that Scullen, as such foreman, negligently ordered and directed that a certain prop or brace, made of a certain piece of timber, be placed to and against the portion of the structure to be torn down, for the purpose of pushing the same over as soon as a certain post, constituting the principal support of that portion of the structure to be torn down, should be sufficiently cut near its lower end as, in the judgment of the said Scullen, to allow the said portion of the structure to be pushed over or thrown down by the use of the prop aforesaid; that the prop was carelessly placed against the building, and Scullen ordered plaintiff to cut the post until the same should be sufficiently weakened to enable said portion of the building to be pushed over, and on consequence of the neglect of the defendant to furnish and use such necessary and proper tools, implements, and appliances, and in consequence of the carelessness and negligence of the said Scullen, as such foreman, in so ordering said plaintiff to chop and weaken the post aforesaid, and while plaintiff was then and there cutting and weakening the post, the roof of said portion of the building was then and there thrown down upon plaintiff. In the third count, in substance, that Scullen, as such foreman, did not carry on the work in such manner as not to expose plaintiff to unnecessary danger, but negligently and carelessly directed and commanded the plaintiff to go under the said building, the roof of which had not been previously removed, and to cut near the lower end thereof, and thereby to weaken a certain post under the building, then and there constituting the principal support, so that the said building could be pushed over by the use of a certain prop or brace, which he negligently caused to be placed against the building for that purpose; and in consequence of the negligent and careless way and manner of Scullen in carrying on the work, and commanding plaintiff to cut and weaken said post, a part of the roof of the building was thrown upon him, and he was injured.

The statement of facts, in substance, and the questions certified, were as follows:

On the 18th of November, 1889, at Cairo, Ill., Millard F. Brown, the defendant in error, and six or seven other persons, all in the service of the plaintiff in error, were engaged in taking down a part of a large frame structure or shed, sometimes called a 'railroad transfer shed,' located in the upper part of the city. The shed was about 120 feet long, and stood between two railroad side tracks; the platform part of the same being about 12 feet wide and 3 feet high. The oak planks constituting the floor of the platform, on which goods were transferred from cars on one side to cars on the other side of the shed, were 2 inches thick, laid on heavy timbers which were themselves supported by and fastened to heavy square posts set in the ground. The shed was not inclosed at sides or ends, but had a tar and gravel roof, about 11 feet above, of the length and width of the platform or floor, and supported by and on a row of 8x10-inch oak posts, 15 feet apart, extending along the center line of the platform. Along and on top of these posts, pine plates or timbers, 4x6 inches in size, extended, constituting the center plate; and near the tops of the posts, and to them, were fastened caps...