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respect to ordained rates of speed as to any other species of negligence chargeable to a railroad company. In Pyle v. Clark, decided by this court, and already cited, the opinion states that the train which struck the plaintiff's team was running at about 15 miles an hour, in violation of a municipal ordinance which prohibited a speed of more than 8 miles an hour, yet the plaintiff was held guilty of contributory negligence, because, after looking along the track, he allowed a full minute to elapse before driving upon the track without again looking. And in Blount v. Grand Trunk Ry. Co., also above. cited, gates at the crossing were established by law to warn travelers, but it was held that the fact that the gates were open when a train was approaching did not excuse a person crossing the tracks for failing to look and listen. The well-settled rule of law is that no reliance upon the exercise of care by a railroad company will excuse a lack of the exercise of proper care by a person going upon a railroad track, or so near as to be in danger from passing trains.
The only other case which we find that seems to hold that running faster than the rate of speed allowed by a municipal ordinance has any bearing upon the matter of contributory negligence is the case. of Smith v. St. Paul City Ry. Co., 79 Minn. 254, 82 N. W. 577, where damages were recovered for running over and killing a dog by defendant's trolley car running 20 miles an hour, in violation of a city ordinance limiting the speed to 10 miles. The court conceded that ordinarily the motorman need not stop for dogs, who should care for themselves, and get out of the way of the car, yet held that the jury might properly determine whether, but for this improper rate of speed, in violation of the ordinance, the dog would not in that instance probably have escaped. Without further comment on these cases, it is sufficient to say that we adhere to the prior decisions of this court. Affirmed.
MAXFIELD V. GRAVESON.
(Circuit Court of Appeals, Sixth Circuit. June 8, 1904.)
1. MASTER AND SERVANT-INJURY OF SERVANT-ACTS OF FELLOW SERVANTS. A master who furnished a stiff-leg derrick requiring no guy rope for use by his employés in unloading stone from cars, which was complete and in good repair, and suitable for the work, is not liable for the injury of an employé by the falling of a block forming part of a guy line which had been rigged by fellow servants of such employé for their own convenience to enable the derrick to be given a longer reach than it was intended to have, so that a car might be unloaded without being moved, such line having been put on in the absence of the master, and without his knowledge.
The fact that an employé was not present at the time a change was made in an appliance by his fellow servants, without the master's knowledge, by reason of which he was subsequently injured, does not render the master liable for the injury.
12. See Master and Servant, vol. 34, Cent. Dig. §§ 388, 397, 567.
In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.
Brent Spence and Michie & Green, for plaintiff in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.
RICHARDS, Circuit Judge. This was an action for personal injuries. In November, 1902, the defendant, as contractor, was engaged in building the stonework of the new intake pier of the Cincinnati Waterworks. A small number of men were engaged upon the job, and among others the plaintiff, who was employed as a day laborer. On November 7, 1902, the plaintiff was at work turning the crank or crab of a small derrick used to lift blocks of stone from a railroad car to a truck on which they were run out to the pier. While so engaged, a block, a part of a guy line fastened to the top of the derrick, fell, and struck the plaintiff on the head, injuring him. For this he brought suit, alleging the defendant was negligent in fastening the block at the top of the derrick with a defective and worn-out rope, and in not fastening it there with an iron chain or band. At the conclusion of the testimony the court below directed a verdict for the defendant on the ground that the guy line, of which the block was a part, did not belong to the derrick, which was complete in itself, but was attached by the men employed on the job for their own convenience, to enable them to secure a wider reach in handling the stone, so that the negligence which caused the injuries of the plaintiff was that of his fellow servants. For this error is assigned.
There was no conflict in the testimony. The derrick was a small, stiff-leg derrick, in which the mast is held upright by two timbers or stiff legs, the upper ends of which fit over an iron pin in the top of the mast, and are there fastened or held down by a piece of iron which runs through the eye of the pin. The mast and stiff legs stand on heavy timbers, which meet at right angles at the foot of the mast, and are weighted or fastened to the ground. The mast turns with the boom, which is attached to it. A stiff-leg derrick is a hoisting machine complete in itself. No guy line is ordinarily needed or used. When the derrick was first rigged, no guy line was attached, and, there being no iron pin at hand, a wooden pin was used to hold down the stiff legs. In the use of the derrick, in reaching sidewise for the stone, an unusual strain was put upon one of the stiff legs. This strain broke the wooden pin, and the derrick fell down. When it was rigged again, an iron pin was used to hold the stiff legs down, and a guy line was run from the top of the mast to the ironwork of a bridge near by. This guy line was composed of a pair of blocks and tackle fastened to the top of the mast by a rope strap composed of three double strands. This strap or loop was placed around the pin in the top of the mast, and the block hooked into it. The rope used to make the strap was as good as new, but by the turning of the mast gradually chafed through and broke, letting the block and tackle fall. The guy line was attached to permit the handling of stone beyond the normal reach of the derrick. By thus using this stiff-leg derrick in a manner for which it was not de
signed, a car could be unloaded without being moved. The device. was not necessary, for the car could have been moved, but it was convenient, because it saved the workmen the trouble of moving it. Plaintiff was in the employ of the defendant before the derrick was rigged with the guy line, but on another part of the job.
The record shows the defendant was at the derrick several times during the month the guy line was in use, but it does not show that he directed or suggested its use. Indeed, the court below, in directing a verdict for the defendant, offered to consider, on the motion for a new trial, "any evidence to show that the attachment of the guy rope to the derrick was caused by the master in any way." No advantage was taken of this offer. It is undoubtedly true, as the plaintiff claims, that the master owes his servant the positive duty of providing a reasonably safe place in which to work, and reasonably safe appliances with which to work, and that this cannot be escaped by intrusting its performance to an agent or servant. Such agent or servant, although working side by side with a servant injured through his negligence, is not regarded as a fellow servant, but as a representative of the master, for whose act the master is responsible. National Steel Co. v. Lowe (C. C. A.) 127 Fed. 311, 315. Under this rule it was the duty of the defendant to furnish a reasonably safe derrick for the use of the men employed on this job, not as a place, but as an appliance. Chambers v. American Tin Plate Co., 129 Fed. 561; Kelly v. Jutte & Foley Co., 104 Fed. 955, 44 C. C. A. 274. The testimony shows, however, that the derrick, as a stiff-leg derrick, was a reasonably safe appliance. The accident occurred not through the breaking of the derrick, or any part of it, but of the guy line attached by the fellow servants of the plaintiff for their convenience. It is true that the parts composing this guy line-the blocks, tackle, and rope-were furnished by the defendant. But they were not furnished for this use. They were sent out at the beginning of the job, along with the derrick, because blocks, tackle, and rope were needed in the proper use of the derrick as a stiff-leg derrick. There is nothing in the record to show that the master had anything to do with the use of this material as a guy line. The record fails to show that he ever directed, suggested, or contemplated such use. All the testimony was to the effect that a guy line, such as the one that was rigged, is no part of a stiff-leg derrick.
There is authority to the effect that the master is not responsible for an accident to a servant resulting from the negligence of a fellow servant engaged in rigging a derrick or similar appliance, when such work is a part of the duty of the common employment. Peschel v. Chicago, Milwaukee & St. Paul Ry., 62 Wis. 338, 21 N. W. 269; Beesley v. Wheeler & Co., 103 Mich. 196, 61 N. W. 658, 27 L. R. A. 266; Kalleck v. Deering, 161 Mass. 469, 37 N. E. 450, 42 Am. St. Rep. 421; McGinty v. Athol Reservoir Co., 155 Mass. 183, 29 N. E. 510; Marsh v. Herman, 47 Minn. 537, 50 N. W. 611. But it is unnecessary to consider the application of this rule, for the accident did not result from the negligent rigging of the derrick as a stiff-leg derrick. As a stiff-leg derrick, aside from the guy, it stood properly rigged at the time of the accident, and it continued to stand and do its work after the accident. The injury resulted from the attachment of an extraneous thing-a
guy line. This was placed there by the men for their own convenience, to permit the handling of stone a greater distance from the mast than could be done without it. The natural reach of this stiff-leg derrick would not admit of the unloading of all the stone on a car without moving the car. An attempt to handle the stone outside of a certain radius would result in a toppling of the derrick. To prevent this, the guy line was rigged. It was attached so that the derrick could be put to a use never contemplated by the master. This was an illegitimate use, and the master cannot be held liable for an injury resulting to one servant from such use of the derrick by his fellow servants. Injury from the illegitimate use of an appliance by fellow servants is one of the risks of the employment. The master is only responsible for injuries resulting from a defect of the appliance itself. Griffiths v. Gidlow, 3 Hurlstone & Norman, 648, 655; The Persian Monarch, 55 Fed. 333, 5 C. C. A. 117; Callaway v. Allen, 64 Fed. 297, 12 C. C. A. 114; Kelly v. Jutte & Foley Co., 104 Fed. 955, 44 C. C. A. 274.
The fact that the plaintiff, while employed on the job, was not working at the derrick when the guy line was attached, cannot operate to make the defendant liable. The negligence of the men was still the negligence to fellow servants, for which the master was not responsible. O'Connor v. Rich, 164 Mass. 560, 42 N. E. 111, 49 Am. St. Rep. 483; Burns v. Sennett & Miller, 99 Cal. 363, 372, 33 Pac. 916; Butler v. Townsend, 126 N. Y. 105, 112, 26 N. E. 1017. The judgment of the lower court is affirmed.
BRITTON v. CENTRAL UNION TELEPHONE CO.
(Circuit Court of Appeals. Sixth Circuit. June 29, 1904.)
1. MASTER AND SERVANT-INJURIES TO SERVANT-TELEPHONE POLES-APPLIANCES-SAFE PLACE To Work.
Where a telephone lineman was injured by the falling of a defective pole from which he was removing the wires prior to the demolition of the pole, such pole was an appliance only, and not a place to work which plaintiff's employer was required to make safe for him to work on.
Where defendant telephone company had not assumed the duty of independently inspecting and testing its telephone poles before they were climbed by linemen, and the only inspection required was such as an ordinarily skillful lineman could readily perform before undertaking to climb the pole, a lineman so employed assumed the risk incident to climbing such poles after making such examination and tests as his judgment would indicate was necessary.
Where a telephone lineman had been previously discharged by defendant for incapacity, and thereafter, on again applying for employment, defendant was informed that he had not sufficient experience to work as a lineman, by reason of which he was employed at other work for a time, and was then directed to do a lineman's work in removing wires from certain old poles, in which work he was injured by the falling of a pole, whether defendant was negligent in permitting him to do such
work, which involved the climbing of the poles, without warning him to make an inspection thereof, and as to the manner in which such inspection should be made, was for the jury.
In Error to the Circuit Court of the United States for the Southern District of Ohio.
F. S. Monnett and Pugh & Pugh, for plaintiff in error.
L. G. Richardson and Stewart & Stewart, for defendant in error. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. LURTON, Circuit Judge. Plaintiff, a lineman in the service of the defendant telephone company, was injured by the breaking of a decayed telephone pole which he had climbed in the ordinary course of his duty. He brought this action to recover damages, and upon the conclusion of his evidence the court instructed the jury to return a verdict for the telephone company. This is the only error assigned.
The pole which fell was decayed below the ground, and was apparently sound above the ground. Before climbing, plaintiff tested its strength by shaking, and then climbed up some five or six feet and again shook it. No weakness being thus discovered, he climbed to the top, and while engaged in working with the wires the pole fell. The plaintiff was one of a gang of men engaged in removing or transposing the wires from an old line of poles upon one side of a country road, along which the company's telephone line extended between two Ohio towns, to a line of new poles upon the opposite side of the same road. The old line of poles was being abandoned because the poles were old and needed replacement, and plaintiff knew this, and knew that as the wires were transposed the old poles were cut down. Another gang was at the same time engaged in putting up the new poles. This gang kept somewhat in advance of the wire gang. Both gangs were under the charge of a foreman, but the foreman was not personally present when plaintiff was hurt, and gave no direction to plaintiff about climbing the pole which fell, and made no inspection of that or any of the poles to be climbed.
1. It is first insisted that the instruction to find for the defendant was erroneous, because the telephone company owed the duty of providing plaintiff with a safe place in which to do his work. The pole is a mere appliance for the support of the wires. To reach the wires, the lineman uses the pole as he might a ladder or a scaffolding. It is therefore more in the nature of an appliance than a place. In Chambers v. Am. Tin Plate Co., decided April 5, 1904, 129 Fed. 561, we held that a scaffold was an appliance, and not a place; and in Maxfield v. Graveson (decided at this session) 131 Fed. 841, we held that a derrick was also an appliance.
2. It is next urged that, considered as an appliance or a place, the duty of the defendant was to inspect and test the poles before requiring plaintiff to climb it. But the evidence disclosed that the defendant did not assume the duty of having any independent inspection or testing of poles before they were climbed by linemen. The practice and custom under which it conducted its operations made every lineman his own inspector, and linemen were required to make such inspection and testing