Hunt v. Pennsylvania Railroad Co.

• Decision Date: 19 February 1866
• Citation: 51 Pa. 475
• Parties: Hunt <I>versus</I> The Pennsylvania Railroad Company.
• Court: Pennsylvania Supreme Court

Page 475

51 Pa. 475

Hunt versus The Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.

February 19, 1866.

CERTIFICATE from the Court of Nisi Prius.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

H. T. King and G. M. Wharton, for plaintiff in error.—It is alleged Hunt was a co-servant with Allison. It is insisted, however, by the plaintiff that Allison under his contract was bound by instructions of the company and had no discretion. Besides, part of the materials was to be furnished by the company. There was proof of officers of the company giving instructions. It is submitted —

1. That the sole responsibility of putting up the iron roof was not thrown upon Allison.

2. That the company, by the very terms of the contract, assumed either an active direction of the work, or, if no instructions were given, ratified and adopted the work as performed by Allison.

3. That consequently the negligence of Allison in the performance of the work, was not the mere negligence of a co-employee, by reason of which the plaintiff, another employee, was injured, but that the active intervention of the company, or, which is the same thing, their right of intervention, made them responsible for the negligence.

4. And that as a further consequence, the contract itself was no defence to the action. The sixth specification provided that Allison was to do only labour.

5. That the falling of the roof was in itself proof of negligence. There was no apparent cause for it shown by the evidence.

6. Consequently it lay on the defendants to account for the falling of the roof, otherwise than from fault or negligence in the performance of the work.

Although Allison might be liable, it would not relieve the defendants if the work was done under their plans and instructions: Carson v. Godley, 2 Casey 116. The plan was insufficient. The company was bound to exercise due care to have their machinery in a safe condition: Bartonsville C. Co. v. Reid, 3 Macq. 266. Hunt had nothing to do with securing the rafters. A servant is entitled to expect care and attention from the master, such as his sense of duty ought to command: Ashworth v. Stanning, 7 Jur. N. S. 467; Clark v. Holmes, 7 H. & N. 937; Peterson v. Wallace, 1 Macq. 748; Bryden v. Stewart, 2 Id. 30. Priestly v. Fowler, 3 M. & W. 1, is rather inconsistent with later cases: Mellon v. Shaw, 1 B. & S., Q. B. 443. Ryan v. Cumberland Valley Railroad Co., 11 Harris 384, is unlike this case, and there Lewis and Knox, Js., dissented: Tarrant v. Webb, 18 C. B. 797 (86 E. C. L. R.); Railroad Co. v. Stevens, 20 Ohio 435; Walker v. Bolling, 22 Ala. 294. In Dixon v. Rankin, 14 Sess. Cases 480, Lord Cockburn, speaking of what was presumed to be the English law, as resting upon "the authority of two or three very recent decisions of English courts" (referring to Priestly v. Fowler, 3 M. & W. 1; Hutchinson v. Railroad Co., 5 Exch. 343; Wigmore v. Jay, Id. 354), goes on to say: "The whole course of our practice has proceeded on the assumption that the liability of an employer did not cease, merely because besides employing the wrongdoer he also employed him to whom the wrong was done. I am clear for adhering to our own rule, and to our legal and practical habits. * * *

"I have rarely come upon a principle that seems less reconcilable to general legal reason. I can conceive some reasons for exempting the employer from liability altogether; but not one for exempting him only, when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur damage on his account, and certainly are not understood by our law to come under any engagement to take these risks on themselves:" Sword v. Cameron, 1 Sess. Cas.

But it was the defendant's negligence which caused the death; and being the result of their interference or negligence, they are responsible: Roberts v. Smith, 2 H. & N. 213; Ormond v. Holland, 1 E. B. & E. 102 (96 E. C. L. R.); Senior v. Ward, 1 E. & E. 385; 2 Parsons on Cont. 43; Walker v. Bolling, 22 Ala. 294. Allison was the general agent of the company at this building, and his neglect is theirs.

But Allison and Hunt were both under the direction of the company: the rafters fell because of the company adopting an insufficient plan, and giving Allison improper instructions.

Theodore Cuyler, for defendant in error.—The building was erected under a contract with Allison, who employed Hunt to raise the rafters. The rope to which the rafter was attached was Hunt's, and attached to the rafter by himself: the rope broke and the rafters fell.

The defendants contended that they were not liable, because: —

1st. The negligence of the deceased had perhaps caused, and had certainly contributed to cause, the accident. He owned and attached the rope which broke 2d. Because the work was being done by a contractor of admitted skill and experience, who had exclusive charge of it, and who had employed Hunt to do the work, in performing which he lost his life.

3d. Because the negligence, if any existed, was that of a fellow-servant of the deceased.

The "instructions" from the company, provided for in the contract, meant general instructions and general supervision.

The employment of a competent contractor relieved the company from liability: Laugher v. Pointer, 5 B. & C. 547 (11 E. C. L. R.); Quarman v. Burnett, 6 Ex. (M. & W.) 506; Rapson v. Cubitt, 9 M. & W. 710; Frazier v. Pennsylvania Railroad Co., 2 Wright 104; Yerger v. Warren, 7 Casey 319; Skipp v. Eastern Counties Railway Co., 9 Ex. (M. H. & G.) 251; Logo v. Newbold, 9 Ex. 301; Grote v. Chester and Holyhead Railroad Co., 2 Ex. 251; Hilliard v. Richardson, 3 Gray 349; McCleary v. Kent, 2 Duer 27; Weygant v. Harlan, 3 Id. 360; Bard v. Yohn, 2 Casey 482; Steel v. South-East Railway Co., 32 L. & E. 366.

It seems manifest upon the evidence of the case, that the negligence of the deceased at least contributed to, and perhaps was, the sole...