Western Electric Co. v. Hanselmann

• Decision Date: 08 March 1905
• Docket Number: 131.
• Parties: WESTERN ELECTRIC CO. v. HANSELMANN.
• Court: U.S. Court of Appeals — Second Circuit

136 F. 564

WESTERN ELECTRIC CO. v. HANSELMANN.

No. 131.

United States Court of Appeals, Second Circuit.

March 8, 1905

John Notman, for plaintiff in error.

Louis Hicks, for defendant in error.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

TOWNSEND Circuit Judge.

The material testimony on behalf of the plaintiff was in effect as follows:

The defendant sent the plaintiff to repair the door switches of certain elevators in the front of a building where there were, altogether, eight or nine elevators. In order to work on the switches, it was necessary that he should reach in from the outside of the shaft, and stand with one foot inside the shaft, on the cross-girder between two elevators, one local and one express, using his left hand to hold him in this position, and, while facing the wall, use his right hand to work. When the elevator cars came up and down, he swung himself back out of the shaft with his left hand, and allowed them to pass. On the day before the accident the elevator boys had said they would rattle the lever of the elevator to let plaintiff know when they were coming, and they had done so and plaintiff was satisfied with said warning, and had gotten out of the way. While he was working on the day of the accident, defendant's foreman asked him how he was getting along, and he said, 'All right,' but that one of the elevator boys had hit his arm with the car the day before. The foreman told the boys to be careful, and asked plaintiff whether they let him know when they were coming and he replied: 'Yes; they rattle the lever, and give me time to get out of the shaft. ' Thereafter they continued to rattle the lever until the car came up on the trip when plaintiff was struck, when no warning was given. The plaintiff did not watch for the approach of the cars, as he could not do so and attend to his work. The elevator cars were frequently passing up and down, and the plaintiff was changing from one floor to another, wherever work was to be done.

The elevatorman who ran the car which struck the plaintiff testified as follows:

'That car goes very fast. I was going at the usual rate of speed when I struck Hanselmann. * * * There was nobody in the elevator with me to assist me in looking out for Hanselmann. I didn't have to have any one. * * * I couldn't see through the bottom of the elevator. * * * It was by looking through the side that I could see Hanselmann above.'

The foreman testified:

'I did nothing to secure Hanselmann against the running of the elevator, because I didn't think it necessary, * * * because what I told him to do didn't require him to get out into the shaft.'

It did not appear whether or not one of these elevators could have been conveniently stopped during the time while plaintiff was at work in the shaft.

In these circumstances, it is unnecessary to discuss the assignments of error by reason of the refusal of the court to direct a verdict for the defendant on the ground that defendant had provided a competent man to give a warning of the approach of the car, which was satisfactory to the plaintiff, and that said competent man was a fellow servant of the plaintiff. The jury may well have found upon the evidence that the defendant had assumed the responsibility of using due precautions to give timely warning of the approach of the car, and that, after the knowledge of the danger had been brought home to defendant's foreman who directed the performance of the work, and he had undertaken to instruct the elevatormen as to their duty, the warning thereafter given was by the direction of defendant. They would have been justified in finding that defendant did not discharge its duty to use reasonable precautions to provide plaintiff with a safe place to work, because of the admitted failure of defendant to temporarily stop the running of said car or to do anything, except as aforesaid; because of its failure to provide any one to give warning on the floor where plaintiff was working, or in the cars, where the elevatormen must necessarily have been so engrossed in answering calls, stopping to let passengers off, opening and closing the doors, and operating the car, that they could not reasonably have been expected to be attentive to the plaintiff and his situation of danger, and that the accident was the direct result of such neglect. McLaine ve. Head, 71 N.H. 294, 300, 52 A. 545, 58 L.R.A. 462, 93 Am.St.Rep. 522; Louisville R.R. v. Hanning, 131 Ind. 528, 31 N.E. 187, 31 Am.St.Rep. 443; The Pioneer (D.C.) 78 F. 600, 609.

But independently of these considerations, the case presented is one where a servant is directed to work in a place safe in itself, but where, by reason of other and independent work pertaining to the business of a common master, the servant is exposed to perils arising from the doing of such distinct and independent work. The authorities are irreconcilably in conflict as to the liability of an employer when by his direction or by an arrangement between employes engaged in a common employment, one of the employes undertakes to warn another of the perils arising in the course of said employment, due to the performance of the common work. In the case at bar, however, the...