Vilter Mfg. Co. v. Otte

• Decision Date: 06 November 1907
• Docket Number: 2,584.
• Parties: VILTER MFG. CO. v. OTTE.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F. 230

VILTER MFG. CO. v. OTTE.

No. 2,584.

United States Court of Appeals, Eighth Circuit.

November 6, 1907

Ralph W. Breckenridge (Charles J. Greene, on the brief), for plaintiff in error.

Edson Rich (J. C. Cook, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

ADAMS Circuit Judge.

The manufacturing company was engaged in installing a refrigerator plant in a brewery in Fremont, Neb., and while lifting into place some refrigerating pipe, Otte, one of its employes, was injured. He successfully prosecuted a suit for damages in the court below, and this writ of error is brought to secure a reversal of the judgment. The court below was requested at the close of all the evidence to direct a verdict in favor of the defendant on the ground that if there was any negligence it was the negligence of a fellow servant. Instead of complying with that request the court instructed the jury that 'the person in charge of the work on the part of the defendant (whose name was Wright) had control of the men, the employment of the men and discharging them and directing them, and for that reason the court instructs you as a matter of law that he was the vice principal, * * * and not a fellow servant. ' It will be assumed that there was evidence tending to show the facts upon which the learned trial judge predicated his conclusion. There was also evidence, which is undisputed, that Wright was the foreman in charge of the men on the job, that he worked with them doing the same manual labor which they did, and that he worked under the immediate direction of a man by the name of Flemming, who was the general western agent of the defendant company, and who was frequently at Fremont during the progress of the work. Wright ordered one of the six men working with him and under his direction to knock out a support which was holding up a heavy frame of refrigerating pipes about to be elevated into place by a block and tackle. In obedience to that command the support was removed, and the suspended frame swung and lurched in some way unnecessary to specify and caught Otte by the thumb and lacerated it so that it had to be amputated. The negligence charged and relied upon for a recovery was the giving of the order to remove the support suddenly and without warning to plaintiff.

The logic of the charge, in view of the undisputed evidence, is that, even if Wright was only a...