Stockmeyer v. Reed

• Decision Date: 17 April 1893
• Docket Number: 8,791.
• Citation: 55 F. 259
• Parties: STOCKMEYER v. REED.
• Court: United States Circuit Court, District of Indiana

55 F. 259

STOCKMEYER v. REED.

No. 8,791.

United States Circuit Court, D. Indiana.

April 17, 1893

Keith &amp Taylor, for plaintiff.

Dunn &amp Alexander, for defendant.

BAKER District Judge.

The sole question in this case is raised by the defendant's demurrer, which alleges that the complaint does not state facts sufficient to constitute a cause of action. The material facts alleged in the complaint are that the defendant on and before, as well as after, May 6, 1892, was the owner of and actively operating a certain stone quarry and stone sawmill at and near Reed's station, in Lawrence county, Ind., for the purpose of quarrying, turning, cutting sawing, and shipping limestone, and in the operation of said quarry and mill employed a large number of men. That defendant is likewise the owner of large quarries and mills in Monroe county, Ind. That he is a resident of Chicago Ill., and is seldom present at his quarries and mills in Lawrence and Monroe counties, and intrusts the control and management of the same to one Robert Reed, and divers other superintendents and foremen. That at the date of the grievances, May 6, 1892, the defendant had in charge of the quarries at Reed's station, as superintendent and foreman, one Joseph Drehoble, and that Drehoble, in the absence of Robert Reed, was in full charge of the quarries, the works, men, employes, and machinery; and on the 6th day of May, 1892, Robert Reed was absent from the quarries and works at Reed's station, and was in Monroe county, and so absented himself, leaving Drehoble in full control and management of the quarries, their employes, machinery and business. That at and prior to said date plaintiff was employed by defendant, and was engaged as a quarryman or scabbler in the quarries and yards of the defendant at Reed's station. That at said date Drehoble attempted to turn, and cause to be turned, a certain block of stone in said quarry. That, after the stone has been duly channeled, it is the customary and usual and only safe rule of quarrying to drill the same at the base of the cut on the outside before attempting to turn the stone; but in violation of this rule, which is the only safe one, the defendant, by his superintendent and foreman, negligently and carelessly attempted to turn and throw over said stone without so drilling, and, in so attempting, Drehoble had actual charge and management of the quarry and its employes. That Drehoble discovered that there were one or more dry seams running through the stone, thereby rendering it liable to break and come apart when moved or handled; and, notwithstanding the fact that Drehoble had full knowledge of the dangerous and unsafe condition of the stone, he directed and ordered the plaintiff, who was scabbling at another part of the quarry to work at and immediately below the outside base of the rock so sought to be turned, and to clean away dirt and rubbish from the same, that the stone might be so turned or thrown over.

That plaintiff had no knowledge of the dangerous and unsafe condition of the stone and the work, and that Drehoble had full knowledge, and that, under said orders from him, plaintiff proceeded to work at the base of the rock; and while he was so at work, under defendant's orders, and without fault, Drehoble, superintendent and foreman as aforesaid, was carelessly and negligently pounding and prying on said rock above the plaintiff; and, as the result of such careless and negligent acts on the part of defendant and his superintendent and foreman, the rock, so seamed, as Drehoble well knew, parted and broke and slipped, and fell on the plaintiff, bruising and mangling him so as to require the amputation of his right leg.

The plaintiff contends that the foreman of the defendant represented him in the alleged wrongful acts resulting in his injury, in such sense that the negligence of the foreman was the negligence of the defendant. On the other hand, the contention of the defendant is that the foreman and the plaintiff were engaged at the time of the injury as fellow servants in performing the work of a common employer, and that the facts disclosed in the complaint bring the case within the principle that the employe assumes the risks incident to the service, and that among them are those arising from the negligence of a fellow servant. It is firmly established that the common master is not responsible to an employe for an injury caused by the negligence of a coemploye, in the absence of negligence, either in hiring or in retaining one who is careless or incompetent. Hough v Railroad Co., 100 U.S. 213; Railroad Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590; Holden v. Railroad Co., 129 Mass. 268; Flynn v. City of Salem, 134 Mass. 351; Crispin v. Babbitt, 81 N.Y. 516; Hussey v. Coger, 112 N.Y. 614, 20 N.E. 556; Taylor v. Railroad Co., 121 Ind. 124, 22 N.E. 876; Justice v. Pennsylvania Co., 130 Ind. 321, 30 N.E. 303. It is equally well established that the fact that one employe is the superior of another makes no difference. The question is not one of rank. Whether, at the time the negligent act causing injury occurs, they are fellow servants, is not to be determined by an inquiry into their relative grade or authority. The rule extends to every case where the two, deriving their authority and compensation from the same source, are engaged in the same business, although in different...