Gregory v. Chi., Milwaukee & St. Paul Ry. Co. of Mont.

• Decision Date: 23 February 1911
• Citation: 42 Mont. 551
• Court: Montana Supreme Court
• Parties: GREGORY v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY OF MONTANA.

42 Mont. 551

GREGORY

v.CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY OF MONTANA.

Supreme Court of Montana.

Feb. 23, 1911.

Appeal from District Court, Powell County; Geo. B. Winston, Judge.

Action by Charles Gregory against the Chicago, Milwaukee & St. Paul Railway Company of Montana and the Chicago, Milwaukee & Puget Sound Railway Company. From a judgment for plaintiff against the second defendant, it appeals. Reversed, with directions.

H. H. Field, Geo. W. Korte, and Scharnikow & Paul, for appellant. John H. Tolan and S. P. Wilson, for respondent.

BRANTLY, C. J.

This action was brought to recover damages for a personal injury sustained by the plaintiff during the course of his employment by the defendants. At the trial it appeared that the employment was exclusively by the Chicago, Milwaukee & Puget Sound Railway Company, the plaintiff disavowing any claim against the other defendant. The result was a verdict and judgment in favor of plaintiff against the first mentioned defendant. From the judgment and an order denying its motion for a new trial, it has appealed.

At the time of the accident, the line of defendant's road was yet in course of construction. Trains were not running except for the purpose of forwarding this work by the transportation and distribution of materials. There were in course of construction at Deer Lodge a roundhouse, car shops, a warehouse, and such other buildings as would be needed in the operation of the road when completed. About 100 men were engaged in this work. The plaintiff was employed as a common laborer. It was a part of his duty to assist in unloading from cars materials to be used in the work of construction and machinery to be installed in the shops. On January 31, 1909, the plaintiff, with several other men under the direction of one Mesnard, a foreman, were unloading machinery from a furniture car standing on a track near the car shops. Most of the pieces were such as could be unloaded by hand with the aid of a skidway, which was built of ties and other timbers at one of the side doors of the car. In some instances heavy pieces were eased down by means of a rope passing through the opposite door of the car and snubbed to a rail in the track. A planing machine was the last piece to be unloaded. It was of such size that it could not be taken through a side door. It weighed several thousand pounds. Another skidway, about 22 feet in length on the incline, was built up to the end door of the car. The machine, having been jacked up and put upon six-inch wooden rollers, was moved endwise to the door, ready to be balanced off on the skidway. The men were directed to ease it down by means of a snub line. For this purpose they used an inch rope doubled. One end was attached to the machine. The other, being passed back, was wrapped two or three times about a five-inch gas pipe laid transversely through the side doors, and resting on two-inch wooden blocks placed on the floor against the facings of the doors nearest to the machine. It was intended that the gas pipe should serve the purpose of a windlass, enabling the men by aid of the friction of the snub line as it passed around it, to hold the weight of the machine, and ease it down along the skidway on rollers. This device was adopted under the direction of one Long, who, it is alleged, was the superintendent of the defendant and had general charge of the work at Deer Lodge. During the unloading of the other machinery Mesnard had special charge. Long came to the car just at the time the men began to unload the machine, and thereafter assumed charge. He directed the plaintiff to see that the line was about the middle of the pipe, and that the strands did not run foul of each other. Other men were ready to push the machine out upon the skidway, and still others were outside to put rollers in place. When the order was given to balance off the machine and let it go, the plaintiff had moved the line to the middle of the pipe. He was in a stooping position, with his hand upon the line, a foot or 18 inches from the bight in the line upon the pipe. Other men were detailed to hold back upon the rope. These were behind plaintiff. The rope moved rapidly. The plaintiff, failing to let go, had his hand caught in the bight, with the result that his arm was broken in two places. He was otherwise bruised and injured.

The amended complaint contains two counts, the same in all essential particulars, except that in the second count it is alleged specially that Long was the superintendent of the defendants, and had been intrusted with full power to direct the work of construction at Deer Lodge, and to provide all the instrumentalities necessary for that purpose. It is very long, and contains much repetition. The following excerpts are set out in the brief of counsel for plaintiff, as the specific charges of negligence upon which he relies: “That the defendants carelessly and negligently caused the planer to be balanced over and down and upon said skidway without having any means, manner, method, or appliance to control the same, and check its speed, and without having the same in check and under control, and that the same did then and there and because of the carelessness and negligence of defendants in not having control of the same, and in not having provided any means, manner, method or appliance to control the same, or to check its speed, with great force and violence run and fall down said skidway, wholly unchecked and beyond the control of defendants. *** That thereupon, and because of defendants having negligently allowed said planer to run unchecked down said skidway, and because of defendants having placed the same on said skidway without having first provided means, manner, method, or appliance to check its speed, and without having the same in check and under control, the rope to which plaintiff was holding was jerked and pulled with great force before plaintiff was able to release his hold. *** That it became and was the duty of the defendants to provide a snub that would check the said planer and control its speed as it rolled down said skidway, in order to prevent the same from running down said skidway with great force and violence, and causing injury to the servants of defendants and especially to this plaintiff, and likewise it was the duty of the defendants to provide means, manners, methods, instruments, and appliances to check the speed of said planer and control its speed when said planer was placed upon said skidway, and likewise it became and was the duty of defendants not to allow said planer to be placed upon said skidway to be lowered from said car to the ground without having first provided good and sufficient means, manners, methods, instruments, and appliances to check and control its speed as it was being lowered down said skidway, and it became and was the duty of the defendants not to allow said planer to roll down said skidway uncontrolled and unchecked, or with great force and violence. *** That the defendants at the time said planer was lowered down and upon said skidway did not and had not provided any manner, means, methods, appliances, or instruments for controlling the speed of said planer or checking the same; and defendants did not and had not provided any manner, means, methods, instruments, or appliances for checking the speed of said planer or controlling the same as it rolled down said skidway; that said defendants at the time of the injury of plaintiff did not have said planer in check, and did not have the same under control.” The defenses interposed are specific denials of all the allegations of the complaint except the corporate capacity of the defendant, with the usual allegations of contributory negligence and assumption of risk by the plaintiff, and that he was injured by the negligence of his fellow servants.

Contention is made that the evidence is insufficient to justify the verdict. The question was raised by a motion for a directed verdict. Counsel discuss in their brief somewhat the question whether Long was a vice principal or was merely a fellow servant of the plaintiff. There is a conflict in the evidence as to whether he had charge of all the work at Deer Lodge, or whether he was only the head carpenter, and had charge of that branch of the work only. We think the evidence tends to show that while he was subject to the orders of Beattie, the chief engineer, when the latter was present, he was the responsible head of control acting for the defendant when Beattie was absent, as was the case at the time of the accident. He seems to have had general charge of the work of constructing the buildings and installing the machinery in the shops. In the absence of Beattie, his voice controlled in the hiring and discharging of men as well as in providing appliances for the work as it progressed; in other words, he was for the time being the managing agent for the defendant, charged with the performance of those duties which appertained exclusively to it as master and could not be delegated. Under the rule heretofore recognized by this court, the question whether an employé is a vice principal or a mere fellow servant is to be determined, not by the grade of service assigned to him, but by the character of his service. The primary duty of the master is to exercise ordinary care and diligence to provide for his servant a reasonably safe place in which to work, reasonably competent fellow servants, and reasonably safe and suitable...