Keystone Bridge Co. v. Newberry

Decision Date03 January 1881
Citation96 Pa. 246
CourtPennsylvania Supreme Court
PartiesKeystone Bridge Company <I>versus</I> Newberry. Same <I>versus</I> Kennedy.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 186 and 187 S. Schoyer and West McMurray, for plaintiff in error.—By discriminating against the phrase "chief representative," the court admits, under its definition, a large class of persons for whom employers are liable, who have been held by this court and other courts as fellow employees: Caldwell v. Brown, 3 P. F. Smith 456; Gilman v. The Eastern Railroad Corporation, 10 Allen 233; Wright v. N. Y. C. Railroad Co., 25 N. Y. 565; Morgan v. The Vale of Neath Railway Co., L. J. 35 Q. B. 23; Weger v. P. Railroad Co., 5 P. F. Smith 463; Lehigh Valley Coal Co. v. Jones, 5 Norris 433; Delaware & Hudson Canal Co. v. Carroll, 8 Id. 374.

Wymond was clothed with no powers of engaging and discharging workmen and laborers at pleasure. He was nowhere designated as the agent of the company. He had no general power of control. His duties were confined to special matters. That he happened for the time being to be the boss of a gang of men, and thereby differing from the laborers, those who were injured, does not matter. He was in an inferior position: Wilson v. Merry, L. R., 1 Scotch Appeals 1597; Hand v. Vermont & Canada Railroad Co., 32 Vt. 473; Howells et al. v. The Landore Siemens Steel Co., L. R., 10 Q. B. 62.

These cases differ in every aspect of the case from Patterson v. Pittsburgh & Connellsville Railroad Co., 26 P. F. Smith 392, referred to by the learned judge below in his charge. It was not machinery furnished by the company for the use of its workmen, but a temporary contrivance for a temporary purpose, made by a fellow workman in the line of his duty, of such material and strength as he thought sufficient, without the knowledge or dictation of his superior, and without complaint made to that superior, Wymond having no general power or control, no power to hire or discharge, and whose grade was but slightly higher than that of the men in his gang, and used by the workmen of their own volition, without direction and without control as to what and how many planks they should use.

Thos. M. Marshall, for defendant in error.—Mullan v. Steamship Co., 28 P. F. Smith 25, rules this case.

The fact whether Wymond did or did not employ the men is of no importance. The company voluntarily furnished the men to work under the orders of an incompetent master; to receive and obey the orders of an incompetent master. As said by this court in regard to an employee: "His primary duty is obedience, and if, in the discharge of that duty he is damaged, it is but meet he should be recompensed." Patterson v. Railroad Co., 26 P. F. Smith 393. This corporation could only act through its agents. It chooses to employ Wymond for the performance of a special work; it details men from their ordinary employment in the works; their duty is obedience in obeying an incompetent agent, the corporation cannot claim that they were fellow servants. The company having undertaken to perform a work, they were under obligation to furnish a fit person as master to the men: a person who understood the business committed to his government. They were bound to furnish all suitable instrumentalities to the performance of the work whether foreman, men or material; failing in either duty, it was negligence.

Mr. Justice GREEN delivered the opinion of the court, January 3d 1881.

Practically these cases, as they come before us, turn upon two questions: 1. Was Wymond such an officer of the defendant corporation as that it would be responsible for his act of negligence? And 2. Is there any evidence of Wymond's incompetency and unskilfulness, and that the company had knowledge of it? The learned judge of the court below left both these questions to the jury in his general charge and in his answers to the defendants' third and fourth points. It is claimed that he was in error in both. Taking the questions in their order, we will consider first the subject of the relation of Wymond to the company on the one hand, and to the plaintiffs on the other. The defendant was a corporation very largely engaged in the business of constructing and erecting iron bridges. They owned and used extensive works and had erected an additional building about four hundred feet in length and fifty feet in width. The walls were brick, and at the time of the accident they were already raised to their full height, and upon them an iron roof was being placed for purposes of ventilation. The plaintiffs were laboring men, who were working under the immediate direction of one William Wymond. An apparatus called a trussed plank was being used in putting on the roof, and while the plaintiffs and some other workmen were engaged carrying an iron rafter over this plank it gave way and they were precipitated to the ground, killing one man and injuring several, among them the plaintiffs. A large amount of testimony was taken, but so far as the principal questions are concerned it was not at all contradictory. In regard to the position of Wymond the undisputed testimony was to the following effect: Colonel Piper was the general manager. He had supervision over the whole business of the company, employed and discharged the men and gave general directions. His orders had to be obeyed by all except the president. Next to him in authority was Mr. Sheffler, the assistant manager, whose duties were the same as Colonel Piper's, he giving attention to the details and supervising the whole business in Colonel Piper's absence. The next in authority was William Robinson. He was examined by the plaintiffs and testified that he was the general foreman of the riveting and the laborers and was under the control of Piper and Sheffler. He also said there were other foremen under him. It was he who detailed men to do the various portions of work, and directed what was to be done. Both the plaintiffs were engaged by Robinson, and were sent by him to Wymond to assist in putting on the iron roof. Wymond had charge of the men who were doing this particular work. The immediate orders to the men engaged in this work came from Wymond. Robinson testified, "Mr. Wymond had control of the men as soon as I gave them to him;" and again, "I was instructed to furnish Mr. Wymond with men by Mr. Sheffler." Wymond's duties are thus described: "I went on various kinds of work, moving machinery, repairing machinery, general repair work; sometimes he (Robinson) would give me three or four men to handle, and at other times only two; that was in the outside shops, but sometimes I would be ordered to go out and take a gang of men and put up a roof, or building or bridges, as the case might be." Q. "You were in charge of the work of the erection of ventilators on the new building of which this is the model?" A. "Well, I suppose you might term it in charge; I was ordered to do that work." Q. "State what your position was." A. "I don't know that I held any commission position; I was put there by Mr. Robinson, as near as I can remember." Q. "To do what?" A. "To raise these trusses and to put up this building; and as for the men he was to furnish me what men I wanted." Q. "Did you employ the men." A. "No, sir." Q. "Did you discharge the men?" A. "No,...

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