Hargadine v. Omaha Bridge & Terminal Railway Company

• Decision Date: 17 May 1906
• Docket Number: 14,546
• Parties: CHARLES HARGADINE, APPELLANT, v. OMAHA BRIDGE & TERMINAL RAILWAY COMPANY, APPELLEE
• Court: Nebraska Supreme Court

107 N.W. 864

76 Neb. 729

CHARLES HARGADINE, APPELLANT, v. OMAHA BRIDGE & TERMINAL RAILWAY COMPANY, APPELLEE

No. 14,546

Supreme Court of Nebraska

May 17, 1906

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

Nelson C. Pratt, for appellant.

W. C Kenyon, William Baird & Sons and J. M. Dickinson, contra.

JACKSON C. ALBERT, C., concurs. DUFFIE, C., took no part in the decision.

OPINION

JACKSON, C.

The defendant is a railway corporation owning terminals and facilities used by the Illinois Central Railroad Company in entering the city of Omaha. It entered into a contract with Gilbert H. Scribner, Jr., of Chicago, Illinois, for the erection of a trestle across Cut-Off lake, according to plans and specifications agreed upon between the defendant and the Illinois Central Railroad Company. The work had been sub-let by Scribner to Edward W. Raymond, who employed and paid the workmen, provided the tools, and was engaged in the work of construction. The plaintiff, a bridge carpenter, was in the employ of Raymond. He was at work adjusting heavy timbers on top of the trestle, 30 feet above water. This service was performed by means of a steel bar, wedge shaped at one end. In moving one of the timbers the bar slipped, plaintiff lost his balance, and fell to the water below. In the course of the descent he struck against a heavy plank, and sustained an injury. The action is for damages, and is founded upon an allegation that the plaintiff was in the employ of the defendant; that the accident occurred by reason of a defect in the bar, on account of which it slipped; that he complained to the defendant and objected to using the bar, but was requested to continue in its use until a new bar could be procured to replace it. There is in evidence no dispute about the fact that Scribner was under contract to construct the trestle; that the work was sublet to Raymond, by whom the plaintiff was employed and paid; that the tool used by him was owned by Raymond, and was provided for his use on the morning of the day when the accident occurred by Raymond's foreman. In the trial court, at the close of the evidence, a verdict was directed for the defendant, and the plaintiff appeals. He seeks to hold the defendant liable by an application of the doctrine of respondeat superior.

One clause of the contract between the defendant and Scribner provided that the work should be executed in strict conformity to the specifications and plans, and such explanatory instructions as might from time to time be given by the chief engineer of the defendant. A civil engineer in the employ of the defendant was in daily attendance at the work for the purpose of inspection, his only authority being to see that the work was constructed according to the plans and specifications stipulated in the contract. During a portion of the time a like engineer in the employ of the Illinois Central Railroad Company was present and inspected the work as it progressed. There is some evidence that on two or three...