National Tube Works v. Bedell

• Decision Date: 03 January 1881
• Citation: 96 Pa. 175
• Parties: The National Tube Works Co. <I>versus</I> Bedell.
• Court: Pennsylvania Supreme Court

Page 175

96 Pa. 175

The National Tube Works Co. versus Bedell.

Supreme Court of Pennsylvania.

November 9, 1880.

January 3, 1881.

November 9th 1880.

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. 125.

Rodgers & Oliver and W. A. Dunshee, for plaintiff in error.— The only negligence we can be held responsible for in this action, is the provision of defective appliances, when we knew or ought to have known them to be defective. This is the sole issue, and the burden of proving the assertion that we were in fault, rests upon the plaintiff: Wharton on Negligence, sect. 421; Sherman and Redfield on Negligence, sect. 12. Eardly was either a competent independent contractor for the work, or else a co-servant with the plaintiff, in the same "circle" of employment under Jackson: Lehigh Coal Co. v. Jones, 5 Norris 432; Philadelphia & Reading Railroad Co. v. Heil, 5 W. N. C. 91; Mullan v. Steamship Co., 28 P. F. Smith 25; Mansfield Coal and Coke Co. v. McEnery, 10 Norris 185; Canal Co. v. Carroll, 8 Id. 374; Wood on Master and Servant, sect. 426, et seq.; Barkinshill Coal Co. v. Reid, 3 Macq. 266; Burke v. N. & W. Railroad, 34 Conn. 474.

Our request for a charge that "there is no evidence of want of care in the selection by defendant of George Eardly," was incorporated in point No. 1 ½, not because we thought such evidence admissible under the issue, but in order to prevent the jury from giving weight to Mr. Eardly's testimony (much dwelt upon by plaintiff's counsel) to the effect that he was absent during the accident.

Thomas M. Marshall and Thomas H. Davis, for defendant in error.—Jackson, the superintendent, was the person to whom the defendant company committed this particular department of its business, and he was in person supervising and directing the performance of the labor or work in and about which the plaintiff was employed at the time he received his injury.

Where the employer leaves everything in the hands of a middle man, reserving to himself no discretion, then the middle man's negligence is the master's negligence, for which the master is liable: Wharton on Negligence, sect. 229; Grizzle v. Frost, 3d Foster & Finlayson 622; Mullan v. Phila. Southern Steamship Co., 28 P. F. Smith 25; Brothers v. Carter et al., 52 Mo. 372.

The employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and failing in this, he is liable for any damages flowing from such neglect of duty: Patterson v. Pittsburgh & Connellsville Railroad, 26 P. F. Smith 393.

Special complaint is made of the answer of the court below to point No. 1 ½, submitted by the defendant, and the instructions thereon. The point asked the court to say that as there was no evidence of want of care in the selection by the defendant of George Eardly, and no evidence that he was a vice-principal, the verdict should be for the defendant. To have done otherwise than refuse this point the court would have committed an error. As no evidence was offered to show want of care on the part of the defendant in selecting Eardly, or that Eardly was a vice-principal, it would have been a manifest error for the court below to have said to the jury that, therefore, the verdict should be for the defendant.

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

This was a suit by the defendant in error for injuries received by him while in the employment of the company. The declaration charges that they were caused by the negligence of the company in not using proper, secure and safe implements and appliances in raising and lifting a heavy piece of timber.

The company had leased a rolling-mill which was out of repair. Jackson was the general superintendent and manager of the company. Eardly, a millwright and machinist, had been for some time, and then was, in the employ of the company under daily pay. Jackson sent him to take charge of the work in repairing, and as an inducement to its more speedy completion was to pay him an extra sum of $50 therefor.

A part of the repairs required was the adjustment of the flywheel and the putting a heavy timber upon each wall of the pit in which the wheel was to revolve. The longer timber had been raised and put in place by means of a rope and chain tackle, and crane worked by a windlass. The same machinery was used in raising the shorter timber. One end of this timber rested on the top of a finished part of the wall, the other end inclined down into the pit and rested on blocks built from the bottom thereof. After it should be raised to a horizontal position, it was to be secured by bolts, fastened in the foundation, that were to pass up through holes in the beam.

The defendant in error is a carpenter. He was employed by Eardly and directed by him, but paid by the company. He and one other were stationed at the higher end of the timber for the purpose of screwing nuts on the ends of the bolts when they passed sufficiently through the timber. While the lower end of the timber was being slowly raised the defendant in error thought to expedite it by...