Scott v. Chicago Great Western Railway Co.

• Decision Date: 11 April 1901
• Parties: FRANK G. SCOTT, Appellee, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

85 N.W. 631

113 Iowa 381

FRANK G. SCOTT, Appellee, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

April 11, 1901

Appeal from Taylor District Court.--HON. HORACE M. TOWNER, Judge.

ACTION at law to recover damages for personal injuries received by plaintiff while engaged in the construction of a bridge on defendant's line of road. Verdict and judgment for plaintiff, and defendant appeals.

Reversed.

Cummins Hewitt & Wright and W. E. Miller for appellant.

Flick & Jackson for appellee.

OPINION

DEEMER, J.

While engaged with other men in work preparatory to the erection of a stone abutment for the support of an iron span of a bridge on defendant's line of road, plaintiff was injured by the falling of an end of a piling that he was engaged in sawing off near the bottom of the pit in which said piling was driven. It is claimed that the end of piling was negligently and carelessly pushed by one of the men (McLean defendant's bridge superintendent) in such a way that it fell upon and injured plaintiff; that McLean was a vice principal or alter ego of the defendant, who owed plaintiff a duty; and that defendant is responsible for his negligent act,--while defendant insists that McLean was a fellow servant of plaintiff, for whose act it is not responsible. There is no claim that the case falls within the provision of section 2071 of the Code; and the principal question in the case is, was McLean a fellow servant of plaintiff, for whose acts defendant is not responsible, or was he a vice principal representing the defendant in what he did, and for whose acts defendant is liable? The exact charge of negligence is "that on said day while engaged in sawing off a piling fifteen inches in diameter and about fourteen feet long, that had been driven into the ground in the bottom of a pit about twelve feet deep, which said piling was being cut off at the bottom of said pit preparatory to building an abutment to the bridge, and after the plaintiff and another employe of defendant had sawed the said piling almost off, the said McLean, bridge superintendent and vice principal of defendant, carelessly and negligently pushed and kicked said piling just sawed off as aforesaid, and caused the same to fall over and upon the plaintiff." The evidence shows that McLean was bridge superintendent, that he had power to and did employ and discharge men, and that he directed the foreman of each gang of men as to where he should work and what he should do. He was not required to do manual labor, although he sometimes voluntarily assisted the men in their work. McLean denied on the witness stand that he pushed the timber, but, as there was a conflict of this proposition, we must accept it as true that he did the act complained of, and that it was negligently done, to the damage of plaintiff. Bearing on the defendant's liability for the act, the court instructed the jury as follows: "It will be noted that the plaintiff seeks to make the defendant company responsible for the acts of the said McLean. Before he will be entitled to this, he must prove by a preponderance of the evidence that said McLean was at the time, and was acting at the time, as a vice-principal of the defendant. It will not be sufficient to show that the said McLean was merely a fellow servant. If that is all that is shown, there can be no recovery. The vice-principal is a person to whom the employer commits the entire charge and management of its business in this particular regard, with power to choose his own assistants and to control and discharge them as freely and as fully as the principal itself could. The employer is liable and answerable to all the underservants for the negligence of such a managing assistant, either in his personal conduct within the scope of his employment, or in his selection of other servants. If in the case at bar you find that at the time complained of the said McLean had...