Woods v. Lindvall

• Decision Date: 01 January 1891
• Citation: 48 F. 62
• Parties: WOODS et al. v. LINDVALL.
• Court: U.S. Court of Appeals — Eighth Circuit

48 F. 62

WOODS et al. v. LINDVALL.

United States Court of Appeals, Eighth Circuit.

October Term, 1891

John M Shaw and Willard R. Cray, for plaintiffs in error.

John W Arctander, for defendant in error.

STATEMENT BY CALDWELL, J.

This action was brought by the defendant in error to recover for a personal injury alleged to have been received through the negligence of the defendants. The issues were a general denial and a plea of former adjudication. Upon the conclusion of the evidence, the defendants moved the court to instruct the jury to return a verdict for the defendants, on the ground that the plaintiff had failed to make out a cause of action against the defendants, which motion was denied. This ruling is assigned for error.

The facts of the case, as disclosed by the bill of exceptions are in substance as follows:

The plaintiffs in error, who were defendants below, were railroad contractors engaged in the construction of a railroad bed for the St. Paul & Duluth Railroad Company for a distance of some 10 or 12 miles. The work consisted in constructing a road-bed by making cuts in hills and in filling low places. The defendants, about New Year, 1888, started in on the work at three different places, with three separate crews. One of the crews was under the charge of one Aleck Murdock, and the work by it to be performed was cutting down a hill near Gladstone, Minn., and filling a long stretch of low country below said hill. Another crew, under one Woods, a brother of one of the defendants, was at work from the other side of the hill in an opposite direction; and the third crew, a mile or two distant, was under the charge of one Mahoney. The work in charge of Aleck Murdock was performed as follows: At the base of the hill a trestle-work was erected, consisting of 10 trestles, all raised at the same time, built of square timbers, and consisting of trestle-bents from 2 to 5 feet high, on which were laid stringers. On these stringers were placed ties, to which were bolted iron rails, thus constituting a track on which to run out 'Petler' dumping-cars filled with dirt in the cut, which dirt was dumped at the end nearest the hill, until a sufficient fill was produced. The stringers were not in any way fastened to the trestles, nor were there any longitudinal braces between the bents. After the first 10 bents had been filled up with dirt, the work proceeded in the same manner, except that from that time to the day of the accident only 1 or 2 bents were raised at any one time; and as the work progressed the trestle-bents became higher, until they, on the day of the accident, were from 21 to 24 feet high. There was also this difference, that instead of square timber round timbers were used, about 10 to 12 inches at the bottom and 7 to 8 inches at the top. The caps of the trestle-bents were also round timbers surfaced on the top for about 5 inches. These caps were from 8 to 10 inches through. They were fastened to the legs of the trestle with spikes. At the ends the caps were also surfaced below for about 5 inches. The distance between the legs at the ground was about 13 feet; at the top, about 2 feet. The caps were about 6 feet long. There were no longitudinal bracing or bracings of any kind between the different trestle-bents, but the legs of each trestle-bent were held together by cross-bracing. On top of the caps were placed, at 2 feet distance from each other, 2 stringers of 8x10 sawed timbers, and of different lengths, some 16 feet and some 32 feet. When the 16-feet stringers were used the distance between the trestle-bents was about 12 feet. When the 32-feet stringers were used the distance was about 27 feet. The stringers were not laid so as to buttress one against the other, but so as to overlap one beside the other. The stringers were not bolted or spiked to the caps, nor were they provided with chucks on either side of the caps, nor were there any bolts driven in them on either side of the caps, nor were they fastened in any way to the trestle-posts, except that the person who had charge of the building of the trestles and their erection, after the 10 first trestles had been built, was in the habit of tying with the hand a three-quarter or one-inch rope around the stringer and the cap, which Murdock had observed. He had no orders either from defendants or from Murdock to do this. He used no orders either from defendants or from Murdock to do this. He used no other force except his hands with which to tighten or tie the ropes. On top of these stringers, but not spiked or fastened to them, were then laid ties and rails in the same manner as was done on the first 10 trestles erected, the rails spiked to the ties, and the rails fish-plated at the end, 30-foot rails, 40 to the foot. At the time of the accident there was a continuous track of about 400 feet from the cut. When the fill was completed the stringers were taken out and used for further trestles, and the ties were then made to rest on the dirt. At the time of the accident about 35 or 40 trestle-bents had been erected at this particular place under the charge of Mr. Murdock, by one Johnson. The men working at this place under Murdock consisted of different sets of men. One set of men, about 20 or 30, worked in the cut digging out the dirt and filling the cars. One set of men were to drive the teams which hauled the cars from the cut to the dump and back. One set of men, consisting generally of 4 or 5 men, worked at the dump or the end of the fill, unloading the cars and evening the dirt, shoveling and tamping under the track. One man, Johnson, built the trestles, and raised them and put them in position, placed the stringers, and laid on them the ties and track, with the assistance of other men furnished him on his request by Murdock. Of all these different men,-- both those in the cut, on the dump, the teamsters, and the trestle-builder,-- Murdock had the charge and control. He hired and discharged the men under him; directed the work, how it should be done and when it should be done; ordered the men working under him to go to any different place when he so desired. Nobody else gave any orders to any of the men, and they were all bound to obey his orders and directions. He went from the cut to the dump and on the trestle-work, back and forth. He did not work himself, unless to show the men how the work should be done, but occasionally took hold to help the men out. The defendants both resided at Minneapolis, about 20 miles away from the place. During the progress of the work defendant Lovejoy was never there. Defendant Woods visited the works two or three times a week, but stayed only for a short time,-- sometimes a few minutes and sometimes an hour or more. He did not give any orders to the workmen, nor direct them in any manner. If any orders were given by him, they were given to Mr. Murdock. Murdock set Johnson to work to build trestles when the work first commenced, soon after New York. The first 10 trestles were raised by Murdock with Johnson's assistance. All the subsequent trestles were raised by Johnson on Murdock's orders. The trestle-work was built for temporary purposes; the bents to remain in the fill, but the stringers to be taken out. Immediately before the commencement of the work at Gladstone, Murdock had had charge of a similar work in Lowry and Douglas Hill, in Minneapolis. While working at these hills under Murdock, in the fall and winter before and shortly before going to Gladstone, Johnson, who had been working at oiling and fixing cars, was by Murdock set to work building trestles. Before setting him to work Murdock asked him if he was good at bridge building. Johnson told him he did not understand anything about it at all. Johnson was not a carpenter. He had not learned the trade of a carpenter. Murdock then set him to work building trestles in Lowry and Douglas Hill, where Johnson built altogether six or seven trestles. Johnson had had no experience in trestle building before the six or seven trestles in Douglas Hill, and those he then built were all that he had built before, except that he had helped build a stable for the horses and a camp for the men before he was put to work at building and raising the trestles on the works near Gladstone.

In April, 1888, plaintiff came out to Gladstone and applied to Murdock for work. Murdock told him that he could go to work on the dump. His duties in working on the dump were dumping cars, shoveling dirt, and tamping up the track; that is to say, to fill up dirt under it and under the ties. His duties did not call him any further out on the trestle-work than to the edge of the dump. He worked for defendants from April 2d till April 20th, when injured. He had nothing to do with the building of the trestles, or with erecting the trestle-work or with the placing of it in position, or in placing the track, and the only assistance he ever gave to this work was one morning a few days after he came to the works, when he, at the request of Johnson, helped to shove out a couple of stringers. On the morning of the accident, when the men came to work, there were two trestle-bents standing. The one nearest to the dump was covered with dirt one-half way up the legs, and the dirt ran on a slope from that bent down about one-half way to the next bent. The stringers running from the bent standing one-half way up in the dirt to the bent wholly covered up were 32-feet stringers. The stringers from the bent partly covered with dirt to the bent outside were 16-feet stringers. Johnson helped shoveling on the dump when he had nothing else to do with building or raising trestles. The morning of April 20th Johnson was on the dump with the dumpmen filling up dirt under the ties where it had sagged away during the night, when...