Crandall v. Stafford Mfg. Co.

• Decision Date: 22 December 1902
• Parties: CRANDALL v. STAFFORD MFG. CO.
• Court: Rhode Island Supreme Court

54 A. 52

24 R.I. 555

CRANDALL

v. STAFFORD MFG. CO.

Supreme Court of Rhode Island.

Dec. 22, 1902.

Action by David H. Crandall against the Stafford Manufacturing Company. Heard on petition of plaintiff for a new trial after a nonsuit. Petition granted.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff.

Walter B. Vincent, for defendant.

TILLINGHAST, J. 1. We think the trial court erred in granting the nonsuit in this case. The witness John S. Grant, who erected the "hanger" upon which the pulley shaft was placed, was not, in the doing of that work, a fellow servant with the plaintiff. The "hanger" was part of an appliance in the mill. It was put up under the oversight of the superintendent, and was intended to be used in facilitating the doing of certain work which the defendant corporation was carrying on. The duty of properly constructing and fastening said appliance, therefore, was clearly one which the law devolved upon the defendant as master, and it could not devest itself of this duty by devolving it upon another. As said by this court in Mulvey v. R. I. Locomotive Works, 14 R. I. 204: "it is the duty of a master, who furnishes machinery for his servants to operate or work about, to see to it that it is reasonably safe. He cannot devest himself of this duty by devolving it on others, and, if he does devolve it on others, they will simply occupy his place, and he will remain as responsible for their negligence as if he were personally guilty of it himself." The same rule, in substance, is laid down in Brodeur v. Valley Falls Co., 16 R. I. 448, 17 Atl. 54; Di Marcho v. Builders' Iron Foundry, 18 R. I. 517, 27 Atl. 328. 28 Atl. 661; Hanna v. Granger, 18 R. I. 507, 28 Atl. 659; Whipple v. R. R. Co., 19 R. I. 587, 35 Atl. 305, 61 Am. St. Rep. 796; Laporte v. Cook, 21 R. I. 158, 42 Atl. 519; McGar v. Natl. Worsted Mills, 22 R. I. 350, 47 Atl. 1092; McDonald v. Postal Telegraph Co., 22 B. I. 134, 46 Atl. 407; and Cummings v. Natl. Worsted Mills, 24 R. I. 390, 53 Atl. 280.

2. The case is not controlled by the dictum of this court in Laporte v. Cook, 21 R I. 158, 42 Atl. 519. That was a case where the defendant city was engaged in digging a trench and laying water pipes therein. The trench was not sheathed, and the plaintiff, while digging bell holes at the bottom thereof, as he was directed to do by the foreman, was injured by the sudden caving in upon him of the bank of said trench. We held that, in view of the circumstances which appeared in evidence regarding the plaintiff's ignorance of the condition of the soil, the very brief time that he had worked in the trench before it caved in, his Ignorance of the fact that it had repeatedly caved in before, etc., and in view of the further fact that nothing appeared to be dangerous in connection with the trench, the plaintiff's conduct in attempting to do the work as directed by the boss was not, as matter of law, a negligent act We also suggested that if the city had furnished the necessary sheathing for the trench, and the boss or foreman had neglected to use it and the plaintiff had been injured by reason of such neglect, the defendant's contention of nonliability on the part of the city would have been tenable, as such neglect would then have been that of a fellow servant. That this suggestion or dictum was in accordance with the well-settled rule of law under such a state of facts we see no reason to doubt. In Dube v. Lewiston, 83 Me. 211, 22 Atl. 112, which was specially relied on by us in support of the position thus taken, the court held that the street commissioner discharged his duty when he assigned to the work of digging the trench an experienced and competent foreman and furnished him with suitable and sufficient materials for any appliances necessary for the safe conduct of the work, and that the use and application of the materials formed a part of the duty of the workmen. The court further held that, if the commissioner's failure to place shoring against the side of the trench where the earth fell could be deemed negligence, it was the negligence of a fellow servant. It also held that said street commissioner was not required to perform any duty in the premises which legally belonged to the province of the master. But that the court did not intend by said decision to overrule or modify the well-settled rule of law regarding the duty and liability of a master in cases like the one before us is evident from the rule which it then adopted, namely: "The true test, it is believed, whether an employé occupies the position of a fellow servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or of the injured servant, but is to be determined by the character of the act being performed by the offending servant, by which another employé is injured, or, in other words, whether the person whose status is in question, is charged with the performance of a duty which properly belongs to the master." The case of Zeigler v. Day, 123 Mass. 152, was similar to the one just referred to. There the plaintiff alleged a neglect on the part of the...