Tweeten v. Tacoma Ry. & Power Co.

• Decision Date: 02 February 1914
• Docket Number: 2303.
• Citation: 210 F. 828
• Parties: TWEETEN v. TACOMA RY. & POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

210 F. 828

TWEETEN v. TACOMA RY. & POWER CO.

No. 2303.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

The parties herein will be designated plaintiff and defendant, as they were in the court below. The plaintiff was in the employment of the defendant as a common laborer, digging holes for poles to sustain electric wires. He had been so employed for five months when he was called from his regular work to assist the lineman in tightening suspension wires. The wires were 22 feet above the ground, and the work was done from the top of a work car. The lineman, Watson, was in charge of the work, and directed the plaintiff. The plaintiff was engaged in tightening a wire when he was injured. Watson had put the blocks on the wire and ordered the plaintiff to pull all he could. They both pulled, and the wire became detached from the post to which it had been tied by Watson on the day before, causing the plaintiff to fall to the street below, whereby he sustained serious injury to his ankle. The plaintiff had had no prior experience in that particular work, except that he had assisted Watson for a short time on three or four occasions, and he received no warning from the defendant as to the dangers incident thereto. Some time after the accident the plaintiff met the defendant's claim agent on a street car, and told him that he owed the doctor some money for medical services in treating his injured ankle. The claim agent told him to call at his office, and when he called the claim agent paid the doctor's bill in the sum of $25, and produced a paper which the plaintiff signed at his request. The paper was a release of the defendant of all claims for damages on account of the injury. The plaintiff could not read in the English language, and the release was not read to him. He testified that he signed it understanding it to be a receipt for the money so paid to the doctor. The plaintiff some time thereafter brought the present action in one of the state courts of the state of Washington, from which the cause was removed by the defendant to the court below. The complaint alleged: (1) That the defendant was negligent in taking him from his regular employment and placing him at work in tightening suspension wires; (2) that the defendant was negligent in not warning him of the danger incident to the work; (3) that the defendant was negligent in not providing him with a reasonably safe place in which to stand while fastening said wires; and (4) that the defendant was negligent in not properly fastening such suspension wire. The answer denied the allegations of negligence, and alleged that the injuries were caused as the result of the ordinary risk and hazard of the employment, which was apparent and known, and was assumed by the plaintiff; that if the plaintiff sustained any injury it was caused by the negligence of a fellow servant; that the plaintiff was guilty of contributory negligence; that the plaintiff, for the sum of $25, executed a release. On the trial of the cause, at the close of the testimony, the defendant moved the court for a directed verdict in its favor, which motion was granted, the court ruling that the proximate cause of the accident was the parting of the wire and that it parted by reason of the negligence either of the plaintiff's fellow servant, Watson, in fastening it, or the negligence of both in pulling too hard. Judgment was thereupon rendered on the verdict.

J. A Sorley, of Tacoma, Wash., for plaintiff in error.

John A. Shackleford and F. D. Oakley, both of Tacoma, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The court below correctly ruled that the plaintiff was the fellow servant of Watson, the lineman under whose direction he was working, for, while under the settled rule of the Supreme Court of the state of Washington the doctrine is established that the question of fellow service will not be resolved by measuring the rank of the employes, but by the character of the act itself, that in order to be the representative of his principal, an employe need not be the foreman in charge of the work as a whole, or have authority to employ or discharge men, but that it is sufficient if he have the authority to direct the work in hand, and that the employer is responsible if the injured employe acted in obedience to the command of one having authority to give it (Durante v. Great Northern R. Co., 64 Wash. 395, 116 P. 870; McLeod v. Chicago, Milwaukee, etc., R. Co., 65 Wash. 62, 117 P. 749; Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324, 58 P. 244; Martin v. Hill, 66 Wash. 433, 119 P. 849; Olson v. Erickson, 53 Wash. 458, 102 P. 400; Johnson v. Motor Shingle Co., 50 Wash. 154, 96 P. 962; Jasper v. Bunker Hill, etc., Min. & Con. Co., 50 Wash. 570, 97 P. 743; Hall v. Northwest Lumber Co., 61 Wash. 351, 112 P. 369; Howe v. Northern Pacific Ry. Co., 30 Wash. 569, 70 P. 1100, 60 L.R.A. 949; Sandquist v. Independent Tel. Co., 38 Wash. 313, 80 P. 539; Anustasakas v. International Contract Co., 57 Wash.

453 107 P. 342), the rule is otherwise in the federal courts; and the plaintiff, a citizen of the state of Washington, while he might, on the ground of the lineman's negligence, have had a good cause of action in the state court in which the action was originally begun, was deprived of that right when the defendant, a corporation of New Jersey, removed...