Regan v. Parker-Washington Co.

• Decision Date: 15 April 1913
• Docket Number: 1,865.
• Citation: 205 F. 692
• Parties: REGAN v. PARKER-WASHINGTON CO.
• Court: U.S. Court of Appeals — Seventh Circuit

205 F. 692

REGAN v. PARKER-WASHINGTON CO.

No. 1,865.

United States Court of Appeals, Seventh Circuit.

April 15, 1913

B. J Wellman, of Chicago, Ill., for plaintiff in error.

Henry R. Rathbone, of Chicago, Ill., for defendant in error.

Before BAKER and KOHLSAAT, Circuit Judges, and HUMPHREY, District judge.

HUMPHREY District Judge.

Defendant in error was constructing a tunnel in Cregier avenue, in Chicago, and plaintiff in error was an employe in the work.

The tunnel was about 12 feet in height and was at a depth of about 75 feet below the street level. The work consisted in blasting the rock and removing the material so blasted. The top half was worked in advance of the lower half, the latter serving as a platform or shelf on which the men and machines stood in blasting the top half. This shelf was as wide as the tunnel, about 13 feet long and about 5 feet high. Three classes of men did the work: Machine men or drillers, who ran the machines to drill the holes and who placed the dynamite helpers, who poured water for the drillers, so that the drills would not heat; and laborers, called muckers, who shoveled into cars and removed the debris caused by the blasts. Two shifts worked, one by day and one by night, and there was one blast each 24 hours by each shift. When a blast was fired, tons of rock would be hurled from the heading, leaving the walls and roof from which it came rough, uneven, and with loose projections or bellies of stone. All such uneven or loose stones were then removed from the roof so as to make it a safe roof under which to proceed with the work. This removal of stones loosened by the blast was called 'trimming' the roof.

Plaintiff in error had been working for some months on the night shift as a mucker. On the night in question, by direction of his foreman, he assisted Teddy, one of the drillers, as a helper. He admits that on one previous night he had worked as a helper, and there is evidence to the effect that he had done so on more than one previous occasion.

On the trial plaintiff in error offered evidence tending to show that it was the duty of the drillers to trim the roof and that they alone did in practice do this work, but the evidence was ruled out. We think this was error. Such evidence was competent and material, and should have been admitted. The defense is based upon assumption of risk, which would include fellow servants, and it was suggested in oral argument that even if the rejected testimony had been admitted, and had shown conclusively that it was the sole duty of the drillers to trim the roof, still there would be no liability because the drillers, helpers, and muckers would be fellow servants.

The subject of fellow servants in the Supreme Court presents a varied history, and the subject of assumed risk is in most of the cases closely allied with it.

The first case arising in the Supreme Court of the United States and involving this doctrine was in 1873, Union Pacific Railroad Co. v. Fort, 84 U.S. (17 Wall.) 553, 21 L.Ed 739, opinion by Mr. Justice Davis. A boy was employed as a helper or work hand on the floor of a shop. The machinery was in charge of one Collett, another employe whom the boy was assisting as helper at a moulding machine. Collett required the boy to go up on a ladder and adjust a belt on a rapidly revolving shaft. The boy had his arm torn off. The court held that the assumed risk covered all risks of negligence of servants in the same line of duty and within the scope of the employment; that, judged by this rule, Collett and the boy were not fellow servants because the work was not within the contract of service, and therefore the risk was not assumed by the boy, and he had no reason to believe he would have to encounter it. The court states the contention of counsel for plaintiff in error 'that the master is not liable to one of his servants for injuries, resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury. ' And then goes on to say:

'Whether this proposition, as stated, be true or not, we do not propose to consider, because, if true, it has no application to this case.'

Mr. Justice Bradley dissented, but wrote no opinion. The case is not important. Not an authority is cited in the opinion of the court and very little reasoning employed. In the briefest manner the court holds that the case is controlled by the fact that the service required of the boy was not within the scope of the employment.

In 1879 in Hough v. Texas & Pacific Ry. Co., 100 U.S. 213, 25 L.Ed. 612, the same doctrine was announced in an opinion by Mr. Justice Harlan; the court being unanimous. Hough was an engineer and was killed by reason of a defective cowcatcher on his engine. The injury was due to the negligence of other servants in the machinery department, to wit, a master mechanic and foreman of roundhouse. While the case was decided upon the doctrine announced in the Fort Case, Mr. Justice Harlan in the opinion discusses the authorities and reasons upon the doctrine with some elaboration. He begins with the language of Chief Justice Shaw in Farwell v. Boston & Worcester Railway Corporation, 4 Metc.(Mass.) 49, 38 Am.Dec. 339:

'The general rule resulting from considerations as well of justice as of policy is that he who engages in the employment of another for the performance of specified duties and services for compensation takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any other.'

Judge Harlan goes on to say:

'As to the general rule, very little conflict of opinion is to be found in the adjudged cases, where the court has been at liberty to consider it upon principle, uncontrolled by statutory regulations. The difficulty has been in its practical application to the special circumstances of particular cases. What are the natural and ordinary risks incident to the work in which the servant engages; what are the perils which, in legal contemplation, are presumed to be adjusted in the stipulated compensation; who, within the true sense of the rule, or upon grounds of public policy, are to be deemed fellow servants in the same common adventure or undertaking-- are questions in reference to which much contrariety of opinion exists in the courts of the several states.'

He then cites Ford v. Fitchburg Railroad Co., 110 Mass. 241, 14 Am.Rep. 598, and Wharton on the Law of Negligence, Sec. 211, holding that, where the master does not supply the servant with safe machinery, he will be liable, although the neglect to furnish such safe machinery be the negligence of other servants in the master's employ.

Another authority cited is Priestley v. Fowler, 3 Mee. & W. p. 1. This was a case in which one servant was transporting goods of the master in a van, conducted by another servant of the same master. The master defended on the ground that the plaintiff knew as well as himself and probably better whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely, but Lord Abinger held that the master is bound to provide for the safety of the servants in the course of his employment, to the best of his judgment, information, and belief.

Other English cases based upon the decision in Priestley v. Fowler are cited to the same effect.

We cite these two cases because they are the first two which came before the court. Both are decided upon the idea that the risk of the servant is assumed, or not assumed, according to the 'scope of the contract of employment,' and this phrase is used by the learned judges in both cases.

Strange to say, we hear no more of it. We are not able to find a case in which any reference is ever made again to that phrase 'the scope of the contract of employment. ' The court seems to have abandoned it forever. In neither of these cases did the court decide who are fellow-servants within the rule.

In the cases of Packet Co. v. McCue, 17 Wall. 508, 21 L.Ed. 705, and Wabash v. McDaniels, 107 U.S. 454, 2 Sup.Ct. 932, 27 L.Ed. 605, the master was held liable either for providing an unsafe engine or in employing unfit servants.

In the case of Randall v. Baltimore & Ohio R.R. Co., 109 U.S. 482, 3 Sup.Ct. 325, 27 L.Ed. 1003, the court, through Mr. Justice Gray, say:

'The general rule of law is now firmly established that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of employment.'

But this case, like all those which preceded it, is decided without defining who are fellow servants, and the decisions heretofore referred to based upon the 'scope of the employment' as a rule of decision cannot be said to have ever given that rule any important place in the mind of the court.

In 1884, the court announced its first decision in which it undertook to define who are fellow servants; and without the slightest reference to the former doctrine, based upon the scope of the contract of employment, it adopted a new and entirely different test, to wit, the relation in business of the negligent employe and the plaintiff. The case is known by all lawyers as the leading one. C., M....