Westinghouse, Church, Kerr & Co. v. Callaghan

• Decision Date: 10 July 1907
• Docket Number: 2,547.
• Citation: 155 F. 397
• Parties: WESTINGHOUSE, CHURCH, KERR & CO. v. CALLAGHAN.
• Court: U.S. Court of Appeals — Eighth Circuit

155 F. 397

WESTINGHOUSE, CHURCH, KERR & CO. v. CALLAGHAN.

No. 2,547.

United States Court of Appeals, Eighth Circuit.

July 10, 1907

(Syllabus by the Court.)

One who enters the employment of another thereby assumes the risk of the negligence of his fellow servants in the performance of all acts which they do while they are not discharging a positive duty of the master.

The duty of caring for the safety of a place or of appliances in cases in which the work which the servants are employed to do necessarily changes the character of the place or of the appliances as to safety as the work progresses is the duty of the servants to whom the work is intrusted, and it is not the duty of the master.

All who enter the employment of a common master to accomplish a common undertaking are prima facie fellow servants, although their grades of service are different, and some direct and supervise the men subject to their command and their work while others perform the labor.

Who are fellow servants, see notes to Northern Pac. R. Co. v Smith, 8 C.C.A. 668; Flippen v. Kimball, 31 C.C.A. 286.)

The servant assumes the risk of the negligence of his superior fellow servant in the direction of the men and the work to the same extent that he assumes the risk of the negligence of the fellow laborer by his side who is engaged in performing the work.

The homogeneous business of a master cannot be divided into distinct and separate departments under the rule in Railroad Co. v. Baugh, 13 Sup.Ct. 914, 149 U.S. 368 383, 37 L.Ed. 772, by the testimony to that effect of his servants, and such testimony is incompetent for this purpose. The nature of the business alone can separate it into departments.

The plaintiff and D. were employed by the defendant in dismantling heavy machinery in the World's Fair buildings. D. was foreman under a superintendent who was under a manager there. The day before the accident a heavy wooden frame 25 feet high had been erected and temporarily fastened in place with guy ropes under the direction of D. to be used to lift and move the heavy parts of an engine. On the day of the accident the plaintiff and four other men were working under D. to permanently secure this frame in place. D. directed the plaintiff to go upon the frame, and, after he had climbed there for the purpose of moving one of the ropes which held this frame in place so that they could use it at another place as a permanent guy rope, D. untied it below, and the frame fell and injured the plaintiff.

Held, D. was not a vice principal, but he was a fellow servant of the plaintiff, and the defendant was not liable for his negligence.

Percy Werner, for plaintiff in error.

James J. O'Donohoe, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge.

Westinghouse, Church, Kerr & Co., a corporation, was engaged in dismantling heavy machinery in the World's Fair buildings at St. Louis. Caldwell was its manager and Oldham its superintendent there. According to the most favorable evidence in the record for the plaintiff below, Callaghan, he had worked for this corporation during the Fair, had left his employment for some time, and about the 1st of December, 1904, he returned and applied to Caldwell for his old job. Caldwell referred him to Oldham, the superintendent who employed him. He then labored there three weeks with a gang of men in the power house taking down props, and Douglas worked in the machinery hall with another gang. Douglas was the foreman, and ordered the work to start promptly and gave the plaintiff his orders. On December 24, 1904, Oldham asked the plaintiff if he would work upon Christmas Day, and offered him time and a half. He accepted the offer, and reported to Oldham that he was ready to work. Douglas on the night before Christmas ordered him to work and to be out early. On Christmas Day Callaghan, Douglas, Stanley, Dorig, and two other men who had agreed to work on that day appeared and Douglas ordered them to put permanent guy ropes on a heavy wooden frame which had been erected the day before under his direction for the purpose of lifting and removing the heavy materials of which the engines were composed. This frame consisted of four upright pieces of timber 8 by 8, 25 feet long. Upon the east and west sides heavy timbers 14 feet long had been mortised into the uprights, and there were timbers lying across these from north to south. This frame was temporarily held in position by guy ropes. In order to substitute permanent guy lines for the temporary ones, Douglas, who was a rigger and the foreman of this gang, directed one of the men to get some ropes, and ordered the plaintiff to go upon the northwest corner of the frame. After he and Stanley had climbed upon this frame Douglas directed the latter to untie a certain temporary guy rope, so that it might be moved to the corner of the structure, and there used for a permanent line, but Stanley was unable to loosen it. Thereupon Douglas untied it below where he was at work, and the frame immediately fell and injured the plaintiff. One of the laborers testified that he worked in the boiler room department, and that this was 20 or 30 yards from the department in which the engines were being dismantled. Another testified that the power house and machinery hall were different departments, which were all run by the same foreman, and that he worked in the department for dismantling engines under Douglas. Douglas was paid higher wages than the other employes. He directed them what to do and where to work, and also engaged in manual labor with them.

At the close of the evidence, the defendant requested the court to instruct the jury...