Willmarth v. Cardoza

• Decision Date: 25 February 1910
• Docket Number: 849
• Parties: WILLMARTH et al. v. CARDOZA
• Court: U.S. Court of Appeals — First Circuit

176 F. 1

WILLMARTH et al. v. CARDOZA

No. 849

United States Court of Appeals, First Circuit.

February 25, 1910

Walter B. Vincent and Ralph T. Barnefield (Alexander L. Churchill on the brief), for plaintiffs in error.

A. B Crafts (A. B. Patton, on the brief), for defendant in error.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

LOWELL Circuit Judge.

The defendant in error, hereinafter called the plaintiff, sued the plaintiffs in error, hereinafter called the defendants to recover damages for being hit with a stone fired negligently from a blast. At the trial the defendants requested the learned judge to instruct the jury to return a verdict for them, on the ground that the negligence charged against them was that of their employe, the plaintiff's fellow servant. The request was refused and the defendants duly excepted. The plaintiff admitted that this employe, who set off the blast, and whose negligence the plaintiff relied upon, was the plaintiff's fellow servant, provided only that the plaintiff himself was in the defendants' employ at the time of the accident. There was evidence of this man's negligence. The learned judge submitted to the jury the question of the plaintiff's employment, under instructions not objected to except as above stated. The jury returned a verdict for the plaintiff, and the defendants have brought the case to this court. The only assignment of error relied upon at the argument concerned the plaintiff's own employment at the time of the accident. The circumstances were not in dispute.

The plaintiff was a hod carrier working for the defendants at a daily wage. His day's labor was over at 5 o'clock, and at that time the 'boss' called to the men to quit work. The plaintiff remained a few minutes, and, by order of the boss, covered with a cloth the masonry laid that day. He then descended the ladder from the building to the ground, and went to a shed, where he had hung up his coat before going to work that afternoon. This shed was not on the path leading directly from the building to the entrance of the lot on which the building stood. When the plaintiff reached the shed he found its door locked, and asked the boss carpenter to open it. With him the plaintiff went on still further to the defendants' office, where the boss carpenter told the timekeeper to give the key to the plaintiff, and told the plaintiff to bring back the key to the office after getting his coat. The plaintiff returned to the shed, where he met the night watchman. The latter was unlocking the door when the blast was blown, and a piece of rock hit the plaintiff, breaking his leg. The defendants contended that, as the facts were not in dispute, the court should itself have determined that the plaintiff was in the defendants' employ at the time of the accident. If there was evidence which warranted a finding that the plaintiff had already quitted the defendants' employment for the rest of the day, the verdict must stand.

The cases hold generally that a workman's employment does not cease at the instant his work time is over, that employment includes the incidents of employment, and that the workman is still his master's servant while he is gathering up his tools and adjusting his clothes after the day's work, and is leaving the place of his employment. Olsen v. Andrews, 168 Mass. 261, 47 N.E. 90; O'Neil v. Pittsburg R.R.(C.C.) 130 F. 204; Manville v. Cleveland & T.R.R., 11 Ohio St. 417; Ewald v. C. & N.W.R.R., 70 Wis. 420, 36 N.W. 12, 591, 5 Am.St.Rep. 178; Int. & G.N.R.R. v. Ryan, 82 Tex. 565, 18 S.W. 219; Higgins v. Hannibal & St. R.R., 36 Mo. 418, 432, the last being an extreme case. In Farwell v. B. & W.R.R., 4 Metc. 49, 38 Am.Dec. 339, which Sir Frederick Pollock calls the fountain head of later decisions concerning the doctrine of common employment that doctrine is rested upon an implied contract between master and servant.

Quoting Tunney v. Midland R.R., L.R., 1 C.P. 291, 296, Pollock states the rule of common employment as follows:

'A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow servant when he is acting in the discharge of his duty as servant of him who is the common master of both. ' Pollock on Torts (Webb's Ed.) p. 117.

Is it to be supposed that implied contract and undertaking end suddenly at a fixed minute, while the servant is still surrounded by the conditions and risks of his employment, or that they continue until the servant has ceased to be affected by these conditions and risks? We think the latter conclusion is obviously correct. To adopt the former, whether in favor of the master or of the servant, would deprive the rule of its reason.

In the case at bar the plaintiff, indeed, did not dispute that his employment would have continued until he reached the highway provided that he had walked there directly from the building. This concession is decisive of the case at bar. If the employment covers, not only the time during which the workman is engaged in his ordinary labor, but also a later time, during which he is passing from the surroundings of his employment into surroundings unrelated thereto, then this additional period will evidently be longer or shorter according to the circumstances. The situation and nature of the building may affect the time needed for leaving it. The tools which the workman uses may be more or less complicated and numerous. They may be easy or hard to put away for the night. That the...