Lach v. Burnham

• Decision Date: 22 December 1904
• Docket Number: 32.
• Parties: LACH v. BURNHAM et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

134 F. 688

LACH v. BURNHAM et al.

No. 32.

United States Circuit Court, E.D. Pennsylvania.

December 22, 1904

George Demming, for plaintiff.

John G Johnson, for defendants.

J. B McPHERSON, District Judge.

That the foreman or boss of the gang of day laborers of which the plaintiff was a member was a fellow servant of his subordinates, save in some exceptional situation, cannot be successfully questioned, I think, since the decision in New England R. Co. v. Conroy, 175 U.S. 323, 20 Sup.Ct. 85, 44 L.Ed. 181. See, also, Kelly v. Jutte &amp Foley Co., 104 F. 955, 44 C.C.A. 274, and the cases cited in 12 Rose's Notes to U.S. Reports, 402, 403. No doubt, the situation would be exceptional, and he would be regarded as a vice principal, whenever he might be called upon to discharge the master's duty 'to exercise due care respecting the safety of the place and of the instrumentalities for doing the work' (Kelly v. J. & F Co., supra), and it is his negligence in this character that is insisted upon as the plaintiff's ground of recovery. It is averred in the statement that the defendants, acting through their agent, the foreman, 'put plaintiff to work in such an unsafe and dangerous place, and negligently compelled him to work in such a dangerous and improper place, and neglected to take such reasonable and proper precautions against the peculiar dangers incident to the kind of work at which plaintiff was engaged, and employed such a willfully careless and negligent foreman, under whom plaintiff worked, that on said August 4, 1903, plaintiff, while attending properly and carefully to the performance of his duties, was struck and knocked down and crushed by a large piece of iron, whereby he was seriously, frightfully, and permanently injured,' etc. In my opinion, however, the testimony did not establish these averments of fault. It was not the place that was proved to be dangerous. The real peril to which the plaintiff was exposed arose from the manner in which the foreman ordered the work to be done, and this, I think, was negligence in his character as a fellow servant, and not in his character as a vice principal.

The plaintiff, with others of the gang, was set to removing from one place to another certain iron braces, of a peculiar shape, that were piled to a height of above five feet. They were in three piles, containing 50 or 60 braces each, narrow and long and crooked. Each brace is said to weigh about 80...