Strinker v. Ray Consol. Copper Co.
| Decision Date | 09 July 1914 |
| Docket Number | Civil 1368 |
| Citation | 16 Ariz. 237,141 P. 740 |
| Parties | JOSEPH STRINKER, Appellant, v. RAY CONSOLIDATED COPPER COMPANY, a Corporation, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Reversed and remanded.
The facts are stated in the opinion.
Messrs Struckmeyer & Jenckes and Messrs. Stoneman & Ling, for Appellant.
Messrs Chalmers & Kent and Mr. Wm. H. King, for Appellee.
The appellant, plaintiff below, sued the appellee, defendant, for damages for personal injury alleged to have occurred on January 23, 1912, and while he was in the employment of the defendant company. The cause of action is set forth in two counts. In one count the injury is alleged to have been caused by a servant or employee of the defendant to wit, an engineer, and in the other count the injury is alleged to have been occasioned by the negligence of the defendant in employing and retaining in its employ an engineer incompetent, unskillful and unqualified to properly render and perform the services required of him.
Demurrers to the complaint were overruled. Defendant answered, setting up the defenses of contributory negligence, assumed risk and carelessness of a fellow-servant.
The case was tried to a jury. At the close of the plaintiff's case, on motion of defendant, the first count was dismissed by the court on the ground that the evidence showed that the injury was caused by the carelessness of a fellow-servant. The defendant introduced its evidence, and plaintiff introduced evidence in rebuttal. After both parties had rested, the defendant moved for a directed verdict in its favor which was granted by the court. Judgment upon the verdict was entered awarding costs to defendant.
Plaintiff assigns 20 errors which he says the trial court committed to his prejudice and damage. As we view the case, the only questions necessary for us to pass upon are: (1) Did the court err in dismissing the first count, and (2) in granting the instructed verdict on the second count?
The pleadings disclose that the engineer, through whose negligence the injury is alleged to have occurred, and the plaintiff were both employees of the common employer, the defendant. The evidence of the plaintiff alone was before the court when the court determined therefrom that the engineer and the plaintiff were fellow-servants and ordered the dismissal of the first count of the complaint. Upon the determination that plaintiff was injured because of the negligence of a fellow-servant, the court evidently took the view that plaintiff assumed the risks arising in his employment from the negligence of a fellow-servant, and that it was a question of law to be passed upon by the court.
At the time the motion to dismiss the first count was granted evidence had been introduced by the plaintiff to the following effect, and for the purpose of the appeal it must be taken as true: The plaintiff at the time of the injury had been working for the defendant as a structural steel man; he had charge of what was known as the "Bull Gang," consisting of himself and four or five other men; the duties of this gang of men were rather miscellaneous; as one witness testified, it was supposed "to do anything." In other words, as soon as one job of structural steel work was completed, it was moved on to another of cognate character, but not the same always in detail. For three days prior to the date of injury this gang had been employed in placing on top of ore bins steel girders weighing about 1,900 pounds. These girders had been raised 40 feet from the ground to the top of bins. This gang, without any outside help, had, by means of blocks and pulleys operated by hand power, lifted in place all of the girders, except one, when on the 23d day of January, 1912, the superintendent of the defendant told the plaintiff to get the last girder out of the way "as quick as you can." This girder was on the railroad track, and the superintendent said, "Joe [plaintiff], get that thing [girder] out of there so the cars could get in." Lee Hetrick, the yardmaster of the defendant, as such had under his control and charge a Brown hoist, and he suggested to plaintiff the use of this piece of machinery to raise the last girder. The Brown hoist gang and the Bull gang up to this time had never been brought together. The hoist was brought to the Bull gang by Hetrick and by him and plaintiff was placed for use in raising the girder. The men accompanying the Brown hoist were Hetrick, the engineer, and a Mexican. The hoist was operated by means of locomotive engine, in charge of the engineer that accompanied it and who was one of the Brown hoist gang. The boom of the hoist was not long enough for the purpose of raising the girder, and Hetrick and one of the Bull gang men procured a telephone pole and spliced it on to the boom, extending the length of boom some 30 feet. The pulleys, blocks and cable were adjusted by plaintiff and Hetrick. One end of the cable was attached to a drum and the other end was, by means of an iron or steel grapple, or hook, attached to the girder. Plaintiff had control of the end fastened to the girder, while the engineer of the locomotive engine operated the drum by means of power obtained from engine, so that, by winding the cable around the drum, the girder could be lifted from the ground. The engine was about 30 feet from the girder. When all was ready to begin the raising of the girder, plaintiff, having placed on girder the hook on his end of cable, signaled the engineer to lift girder six inches. The signal was made by hand and also by word of mouth. Plaintiff said to engineer, "Raise it up six inches." The purpose of raising girder six inches was that a block might be placed under it, giving space to wrap the end of cable around girder securely, so that it might be raised and put in place on top of bin. The engineer, instead of raising girder six inches, as he was told and signaled to do, suddenly jerked it up to a height of six feet. The hook slipped off it, and it fell, striking plaintiff, breaking one of his legs, and injuring the other. If the girder had been lifted six inches only, the hook would not have slipped off.
Plaintiff did not see the engineer before he was hurt and did not know who was the engineer in charge of engine when he was hurt. The Brown hoist crew and the structural crew had never come together before. The former crew was loaned to the latter just for the one purpose, the handling of the last girder. Not only new instrumentalities, but new faces, were injected into the structural steel gang for the purpose of hastening the removal of this last girder from the railroad track so that it might be used. The Brown hoist and the crew that operated it had been used in loading cars with ore, but had never been employed in iron work construction before. They were brought from ore dump for this particular job. The two crews were engaged in a different line of employment and had not come together in their work during the time plaintiff had worked for defendant, about 18 months, and would not have come together on this special occasion, except for the expedition required in doing this particular job that another department of defendant's work might not be obstructed. It is not an unfair inference, from the evidence, that they came together at this time at the instance of the superintendent of defendant, although that fact is not directly sworn to by any witness. He told plaintiff to hurry up and get the girder out of the way of cars, and soon thereafter the yardmaster, Hetrick, was on the ground with the Brown hoist and its crew joining in the work of placing the girder on top of bin. The Brown hoist crew was under the control of and received its orders from the yardmaster. Did the fact that, for the instant, the engineer was acting on signals from the plaintiff constitute him and plaintiff fellow-servants, and, if so, is it a question of fact to be submitted to the jury, or is it a question of law to be determined by the court, as was done in this case?
We may say that the courts are not agreed as to what constitutes fellow service. Many of them have adopted the narrow and somewhat harsh rule laid down by Chief Justice Shaw in Farwell v. Boston & W.R. Corp., 4 Met. (Mass.) 49, 38 Am. Dec. 339, decided in 1842, holding that all the employees of a common master were fellow-servants. Other courts of equal learning and respectability have made association and opportunity to watch over each other the test of fellow service. These latter states have adopted the so-called "departmental doctrine." Labatt, in his exhaustive and learned work, "Master and Servant," at section 1425, says:
"The decisions which actually turn upon it (departmental doctrine) seem to be confined to Georgia, Illinois, Missouri, Nebraska, Louisiana, Virginia, Washington, West Virginia, Utah, Arizona and such federal courts as have avowedly followed the local rule."
Southern Pacific Co. v. McGill, 5 Ariz. 36, 44 P. 302 relied upon by defendant as authority sustaining the court in passing upon the question we have here, as a question of law, has its interesting features. The question in that case was as to whether a section foreman and the conductor upon whose train he was riding at the time of the accident were fellow-servants. The trial court submitted the question to a jury. This action of the trial court was approved by a unanimous court in a well-considered opinion reported in McGill v. Southern Pacific Co., 4 Ariz. 116, 33 P. 821. Upon a motion for a rehearing before the same court, with a change in its personnel, however, the decision was that they were fellow-servants and that the trial court erred in...
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