Proctor & Gamble Co. v. Williams
| Decision Date | 12 December 1910 |
| Docket Number | 92. |
| Citation | 183 F. 695 |
| Parties | PROCTOR & GAMBLE CO. v. WILLIAMS. |
| Court | U.S. Court of Appeals — Second Circuit |
B. L Pettigrew, for plaintiff in error.
R. J Donavan, for defendant in error.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
Plaintiff was 22 years of age, and had been employed as millwright's helper in defendant's factory for about eight months. For the two months immediately preceding the accident he had acted as helper to Otto Schumann, who with his father, Henry Schumann, and Charles Roseman, all millwrights had usually worked together in one gang during this period, and plaintiff helped the others as well when directed to do so by Otto Schumann. His duties as a millwright's helper were to run errands for the millwright, strike blows with the hammer, use a wrench assist in the assembling of the shafting, putting it in place and in the placing of machinery, and generally to do what he was told to do by the millwright.
On the day in question plaintiff and the two Schumanns were in one of the shops of the plant, through which there ran shafting about nine feet above the floor. One section of this shafting had been dead (that is, disconnected with the live or moving portion) for some time. The rest of the shafting was in motion. The dead section was a portion of the main shafting by which the machinery in the shop was driven, and had been pushed over towards the west so that the clear space between the westerly end of the live shafting and the easterly end of the dead shafting was variously estimated by the witnesses at from six to twelve inches. The shafting was suspended in hangers placed at intervals of about eight feet. Upon the east end of the dead shaft there was a coupling ten inches long with screws in its west end to hold it on the shaft. There was a keyway in the west end of the live shaft designed to receive a set screw in the coupling which keyway had been widened and roughened somewhat by use. It had been decided to take down the dead shafting. To do that, it was necessary to erect a platform successively under each of the hangers and to attach a rope to either end of the shaft, after passing the same over the overhead timbers. The bearings of the hangers were to be taken out, so as to permit the shafting to be lowered directly to the floor. The nearest hanger to the easterly end of the dead shaft was four feet from that end. Under Otto Schumann's direction, a platform or staging was erected so that its center was midway between the dead and the live sections of shafting; the platform projecting about 15 inches under the live shafting. set screw on the coupling. Plaintiff asked him if he was going to shut off the power, and he said: ' During the noon hour the live shafting would stop, at which time it was expected to put a hanger on it. Plaintiff testified that he did not know of the existence of the roughened keyway. He mounted the staging and while working with a wrench at the screw, having his back towards the revolving shaft, his clothing was caught, and he was whirled around and badly hurt. It is conceded that, had the platform been erected underneath the hanger which was to be loosened, it would have been well away from the live shaft and the plaintiff could not have come in contact with it. The location of the scaffold was determined by Otto, who himself set the horses for it. He put it where it was instead of further west because there was a lot of stuff, scrap, valves, etc., lying on the floor which it would have taken them some time to move to make a place to stand the horse in. We are clearly of the opinion that there was enough in the record to warrant a jury in finding that Otto was negligent, either in undertaking the work on this hanger while the live shaft was in motion, or in so placing the staging as to expose the plaintiff when standing on it to the risk of being caught, which might have been wholly avoided by giving the time necessary to clear up the floor sufficiently to enable them to place the staging a short distance further west. But, if the action were the ordinary one, plaintiff could not recover for Otto's negligence, since they were fellow servants, although the latter gave him directions about the details of the work.
The action, however, is brought under the New York employer's liability act (chapter 600, Laws 1902), which provides that the employer shall be liable where personal injury is caused to the employe 'by reason of the negligence of any person in the service of the employer intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as superintendent, with the authority or consent of such employer. ' The defendant had a general superintendent, Robert Anderson, who at the time of the accident was employed in supervising the equipment of the plant and the placing of the apparatus within the buildings. He hired the men, millwrights, helpers, and others. Manifestly he was within the terms of the statute as a 'person intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence. ' In his particular sphere, the supervision of the work of equipping the plant and placing the machinery in place, he stood in place of the master. For that purpose he was the Proctor & Gamble Company, their alter ego. He was the one who determined that the dead shaft should be taken down and instructed Otto to attend to it. He gave no instructions as to the manner in which it was to be done. He afterwards came into the shop, and saw the three men there, but paid no attention to them, since he was instructing the other mechanics as to the work for the day.
It seems to us that the particular piece of work in which plaintiff was engaged was one which might reasonably be held to require supervision.
Of course, there were many details of the work, which in the nature of things would be left to the judgment of the workmen themselves, but surely it called for superintendence to determine whether or not work should be done near a live shaft while it was in motion, or whether such work should wait till it came to rest at noon hour. So, too, it would be for a superintendent to direct whether the staging should be placed in one location or another. If Anderson had not had other mechanics to direct, if he had remained in the room superintending the job, it seems manifest that he would himself have given the directions as to these two details. When, therefore, he turned the whole matter over to Otto, without giving him any specific instructions, he authorized him during Anderson's absence to act as superintendent of that job. When Otto so acted, it was with the authority and consent of the general superintendent, which was the full equivalent of the authority or consent of the owner,...
To continue reading
Request your trial