Ross v. Walker

• Decision Date: 05 January 1891
• Docket Number: 5,4
• Citation: 21 A. 157,139 Pa. 42
• Parties: SYLVESTER ROSS v. J. W. WALKER; HUGH ROSS v. J. W. WALKER
• Court: Pennsylvania Supreme Court

21 A. 157

SYLVESTER ROSS v. J. W. WALKER;

HUGH ROSS v. J. W. WALKER

139 Pa. 42

Nos. 4, 5

Supreme Court of Pennsylvania

January 5, 1891

Argued October 27, 1890

APPEALS BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

Nos. 4 5 October Term 1890, Sup. Ct.; court below, Nos. 115, 116 April Term 1888, C.P. No. 2.

At No 116 April Term 1888, of the court below, Sylvester Ross, a minor, by his next friend, Hugh Ross, brought trespass against J. W. Walker, to recover for personal injuries received by said Sylvester Ross, in consequence, as was alleged, of negligence on the part of the defendant. Issue.

At No. 115 of the same term Hugh Ross brought trespass against the same defendant, to recover damages, as the father of Sylvester Ross, for the same injuries. Issue.

The two cases were tried together on September 30, 1889, when the following facts were shown:

In June, 1887, the defendant was engaged in erecting, as a contractor, an iron bridge over the Pittsburgh, Ft. Wayne & Chicago railway, at Superior station, Allegheny county, to replace a wooden one upon the same location. Sylvester Ross, then about nineteen years of age, was one of the workmen employed, and the defendant's foreman, one Duffey, had a general oversight of the work. In a general way, Duffey directed the work and the men, and occasionally hired and discharged men. The testimony of certain witnesses tended to show that Duffey was in entire charge of the work, and that, while the defendant was on the ground several times during its progress, he gave no directions to the workmen.

On June 21, 1887, the men were engaged in erecting part of the scaffolding required for use in putting up the bridge. An abundance of material had been provided for that purpose, part of which consisted of timbers taken out of the old bridge. Out of the mass of material, a piece of 8 by 10 timber was selected by some one for use as a "cap" in the scaffolding or false work. The testimony was conflicting as to whether it was selected for this particular use by Duffey, or by one of the workmen under him. It was of sufficient size for the purpose, however, and was sound, except that it contained a large knot which weakened it. The testimony tended to show that the knot was visible upon the surface, though larger in the interior of the timber, and that an ordinary inspection would have discovered it. After the cap had been put in position it broke, in consequence of the weakness produced by the knot, causing Sylvester Ross to fall to the ground and receive the injuries for which these actions were brought.

No question was raised as to the competency and skilfulness of the foreman, and of the other workmen who were employed with Ross, and there was no evidence of any negligence in the construction of the scaffolding, except in the use of this defective piece of timber as a cap.

At the close of the testimony, the court, EWING, P.J., charged the jury in part as follows:

The defendant requests the court to charge the jury as follows:

2. That, if the jury find that the defect in the timber was visible, then the negligence in the use of it was the negligence of the fellow servants of Sylvester Ross, and not the negligence of defendant, and the verdict must be for the defendant.

Answer: The second point is refused.

3. That, if the defendant furnished an abundance of material from which the workmen employed in constructing the bridge could select suitable timber for the erection of the false work, and plaintiff's fellow servants selected the defective timber, the breaking of which was the cause of plaintiff's injury, the defendant is not liable therefor, and the verdict must be for the defendant.

Answer: The third point is affirmed.

4. That, under all the evidence in this case, the verdict must be for the defendant.

Answer: The fourth point is refused.

5. That, if the jury find that the defendant put the work in charge of a competent foreman, and there was enough suitable material on the ground to build the scaffolding, then there is no negligence on the part of the defendant, and the verdict must be for the defendant.

Answer: The fifth point is refused. If Mr. Duffey was nothing more than a mere foreman, in the ordinary sense of that term, in charge of the work under the general superintendence of the defendant, the point is affirmed. But, if Mr. Duffey was in the entire charge and control of the work of erecting the bridge, determining what materials were to be furnished for the scaffolding, employing and discharging the men, and directing where and what materials were to be used, he was acting for Mr. Walker as vice-principal, and his negligence would then be the negligence of the defendant.

After referring to the testimony, the court proceeded:

A question for you to determine, before you need consider as to whether or not Mr. Duffey was guilty of negligence, is what position he occupied. That is a question of fact for the jury. I do not mean to say that it is a question for the jury to determine as to what the responsibility of Mr. Walker would be for Mr. Duffey's acts, if the facts were not in dispute. Because, if the facts were not to some extent matters for the jury to determine, the court would say what position he occupied. [But, we have already said to you that if Mr. Duffey was in entire charge of this work of building the bridge, erecting scaffolding and determining what material was needed and how it was to go up, having general control, hiring the men, (which is not a very important or material matter, whether he hired and paid them or not,) but if he were in entire charge of this work, determined what was to be furnished and how it was to go up, not under the general superintendence of Mr. Walker, going back and forth, then he is to be treated just as though it was Mr. Walker there; acting in general superintendence, -- not, however, where he was acting as a workman or as a mere foreman of a gang or squad of men, but if he was in entire charge of that work; then, his acts in that general charge are to be treated in this case as the acts of Mr. Walker. It is for the jury to say whether he was there in that way or not; if he was not, but was simply an ordinary foreman in charge, without this authority, you will find for the defendant;] you need not go any further.

To explain what I mean: If Mr. Rea, and the other men who aided in erecting this bridge, in putting in this piece of timber, were simply the fellow workmen of this young man who was hurt, and if the putting in of the timber was their negligence, the plaintiffs cannot recover. If the timber was simply furnished and lying there, and good timber also, and it was their business to make a selection, and they negligently selected this bad piece of timber, the plaintiffs cannot recover. But, if Mr. Duffey was in this general charge of the work, that I have indicated to you would make Mr. Walker responsible for him; and if he determined that this was a fit piece of timber for that place, selected it and ordered it put in there, in this general charge of the work, then the act would be that of Mr. Walker, and then you would come to the question whether he was negligent or not.

Now bear in mind, again, what negligence is; he is not an insurer. It does not follow that because the timber turned out to be defective in fact, there was negligence in putting it in. If it was apparently strong and sufficient, and he put it in, it is one of those accidents that nobody is responsible for, if it was in the exercise of reasonable care. But, if the knot so showed that he, on a reasonable inspection of it, could have ascertained, and should have ascertained that it was unfit for the place, then it was negligence. You have his testimony on that point and the testimony of the others. The witnesses for the defence say that the piece of timber looked to be all right outside. The workmen who put it in, Miller and Rea, say it appeared to be all right, and one of them said, at one time, that he and his fellow workmen selected it; but again, the same witness said that Mr. Duffey was also there. The witnesses who testify to its appearance, after the break, do not pretend to have seen it before, and it might very readily be a knot that would weaken largely in the interior of the wood, and yet show to a very trifling extent on the surface. I do not understand that knots that endanger a piece of timber of that size will always appear on the surface, at all, and you have the testimony of Mr. Duffey as to how this knot ran through the stick of timber, the only witness who gives any account as to how it did run. No witness says that the timber itself was rotten or unsound, and on that simple, very narrow question stands the right of the plaintiffs to recover, if at all. Unless Mr. Duffey is to be treated as the vice-principal and standing in the place of Mr. Walker, for the reasons I have given, then the plaintiffs cannot recover; and, even if he does so stand, unless he was guilty of negligence in his selection of that timber to be in there, and did select it in order to put it in that place, they cannot recover.

The jury rendered a verdict for $134 in favor of Sylvester Ross, and a verdict in favor of Hugh Ross for $166. Judgments having been entered, the defendant took these appeals, assigning for error:

1-3. The answers to defendant's points. to

4. The part of the charge embraced in []

The judgment is reversed.

Reversed.

Mr James H. Reed (with him Mr. P. C. Knox), for the appellant:

It was not contended upon the trial that there was any personal negligence on the part of the defendant, as the employer of the workmen engaged in erecting the bridge. If there was any negligence in the selection of...