Kelly v. Jutte & Foley Co.

• Decision Date: 23 November 1900
• Docket Number: 10.
• Citation: 104 F. 955
• Court: U.S. Court of Appeals — Third Circuit
• Parties: KELLY v. JUTTE & FOLEY CO.

104 F. 955

KELLY v. JUTTE & FOLEY CO.

No. 10.

United States Court of Appeals, Third Circuit.

November 23, 1900

Defendant company, which was engaged in the construction of a bridge furnished for use in the work a steam derrick, which was complete and properly constructed, but required to be set in position and secured before being used; and employees were directed to perform that work, and materials therefor were furnished them. Before they had completed the fastenings they were temporarily called away, and a foreman, who was a fellow servant with plaintiff, ordered the derrick to be used although he had been told by one of the workmen that it was not yet secured and its use was unsafe. The derrick gave way by reason of the absence of such fastenings, and plaintiff was injured. Held, that the injury was not due to the failure of defendant in its duty to furnish a reasonably safe place to work or a safe appliance, but solely to the negligence of the foreman, plaintiff's fellow servant, for which defendant was not liable.

E Spencer Miller, for plaintiff in error.

Joseph H. Taulane, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

DALLAS Circuit Judge.

Whatever may have been the cause of the plaintiff's injury, it is certain, as matter of fact, that it was not due to any negligence committed directly by the defendant, but to the conduct of one or more persons who, under the now settled law, were the plaintiff's fellow servants. Railroad Co. v. Conroy, 175 U.S. 323, 20 Sup.Ct. 85, 44 L.Ed. 181. It was neither alleged nor proved, and is not now asserted, that the defendant was at fault in the selection of those servants, or that its retention of them up to and at the time of the accident in question was culpable. It is, however, contended that the disaster which befell the plaintiff was occasioned by the failure of the defendant to discharge its own personal duty to exercise due care respecting the safety of the place and of the instrumentalities provided for doing the work. We agree that such a duty is owing by the master to the servant, and that his liability for its breach cannot be shifted or evaded by intrusting its performance to another; and the only question in this case, as we understand it, therefore, is whether any dereliction in this regard was the proximate cause of the plaintiff's hurt. The obligation of the master as to place does not require him to do more than select (if selection be possible) a place which, under the circumstances, and especially in view of the nature of the particular work, shall not be an unreasonably dangerous one; and as, in this instance, the work in hand was the building of a bridge, we are at loss to conceive how any other place than that at which it was to be built could have been reasonably chosen. Moreover, the plaintiff had had considerable experience in such labor as he was then performing; and the ingenious suggestion which has been made, that the derrick presently to be referred to was an 'erection,' an 'environment,' which rendered the place itself especially unsafe, is, we think, too subtle and refining to be practically applied. The plain fact is that the derrick was not a part of the place, but was brought there for use precisely as the other implements and the materials were. It was an appliance, and as an appliance, though the distinction may not be important, we will deal with it.

The Jutte & Foley Company, defendant below and here, being engaged in the construction of a bridge, employed Michael Kelly, plaintiff below and here, to do certain work in and about that construction. On the morning of the day upon which the accident occurred, and previously, a certain 'bucket' had been raised and lowered by a boat derrick. The foreman of the carpenters and his gang had been...