National Tube Works Co. v. Bedell , 96 Pa. 175 ( 1881 )

Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

This was a suit by the defendant in error for injuries received by him while in the employment of the company. The declaration charges that they were caused by the negligence of the company in not using proper, secure and safe implements and appliances in raising and lifting a heavy piece of timber.

The company had leased a rolling-mill which was out of repair. Jackson was the general superintendent and manager of the company. Eardly, a millwright and machinist, had been for some time, and then was, in the employ of the company under daily pay. Jackson sent him to take charge of the work in repairing, and as an inducement to its more speedy completion was to pay him aD extra sum of $50 therefor.

A part of the repairs required was the adjustment of the flywheel and the putting a heavy timber upon each wall of the pit in which the wheel was to revolve. The longer timber had been raised and put in place by means of a rope and chain tackle, and crane worked by a windlass. The same machinery was used in raising the shorter timber. One end of this timber rested on the top of a finished part of the wall, the other end inclined down into the pit and rested on blocks built from the bottom thereof. After it should be raised to a horizontal position, it was to be secured by bolts, fastened in the foundation, that were to pass up through holes in the beam.

The defendant in error is a carpenter. He was employed by Eardly and directed by him, but paid by the company. He and one other were stationed at the higher end of the timber for the purpose of screwing nuts on the ends of the bolts when they passed sufficiently through the timber. While the lower end of the timber was being slowly raised the defendant in error thought to expedite it by pressing down the upper end. With this view he threw a jackscrew on the end of the timber, rested one hand on the top of the timber, and with the other picked up a block to put on the screw. Just at that moment the hook of the chain broke, the lower end of the timber fell, the upper end. flew up crushing his hand between it and the block on which the cylinder plate rested.

This action was based on a tort. It rests on the alleged negligence of the company. The burden of proof was on the defendant in error to establish the negligence. There is no evidence that the company had any notice that Eardly was not a careful and competent person to perform the work to which he was assigned. Nor do we find any showing that in fact, he was not careful and competent. It therefore follows the company was not guilty of negligence in putting him in charge of the work. The general superintendent did not direct in what manner nor with what appliances the timber should be raised. The company had other chains and of larger size than the one used. Eardly selected one which he thought suitable. He testified that he made an examination of “ every link and ring and hook” of the chain. The body of the chain was about nine-sixteenths of an inch. The hook was one and one-eighth inches in diameter. The witnesses for the defendant in error testified that the chain was rusty, and that Eardly was told it was too weak for the purpose. Both these facts were denied by the witnesses of the plaintiff in error. No witness swears that any doubt was expressed as to the sufficient strength of the hook, but it was to the chain generally. It was the hook only which broke, although it was twice as large as the other part of the chain. The smaller part stood the test, and showed no failure of strength. The evidence is that the timber weighed less than four tons. About one-third of it rested on the wall, so that only two-thirds of its weight were to be raised by the tackle. The hook exhibited no flaw, and in the opinion of experts its tensile strength was such that it ought to have stood a strain of 60,000 pounds, or thirty tons. This is fully ten times the weight of the part of the timber raised by the tackle. Thus it appears no one did doubt, or had any reason to doubt, that the strength of the hook was sufficient for the purpose to which it was applied.

Eardly and the defendant in error were co-laborers in the work. They were fellow servants in the same common employment. Although Eardly was permitted to select some of the men who were to assist in doing the work, yet he, as well as they, and all engaged therein, were hired by the day and paid by the company. A master is not liable to his servant for the negligence of a fellow servant while engaged in the same common employment: Sherman & Red-field on Negligence, sect. 86. The master does not warrant the competency of any of his servants to the other: Id. It matters not that they are of unequal grade if the services of each in his particular labor is directed to the same general end. And although the inferior in grade is subject to the control and directions of the

superior whose act caused the injury, the rule is the same : Whart. Law of Neg., sect. 229; Lehigh Valley Coal Co. v. Jones, 5 Norris 432; Priestley v. Fowler, 3 M. & W. 6; Wonder v. B. & O. Railroad Co., 32 Md. 410. If then, as we have shown, Eardly and the defendant in error were fellow servants, even if the former .was negligent on the occasion of this injury, that fact is insufficient to charge the company with negligence in appointing the negligent employee: Whart. on Neg., sect. 240; Feltham v. England, L. R., 2 Q. B. 33.

We think .the learned judge erred in not affirming the points covered by the second and third assignments.

The point covered by the first assignment should have been refused. The qualification is insufficient to justify its affirmation. The seventh assignment is to a part of the charge which appears to be in answer to a verbal point made by the counsel for defendant in error, based on the temporary absence of Eardly at the moment of the accident. We think the learned judge erred in affirming it, and in holding there was negligence, to affect the plaintiff in error, in Eardly being absent a single instant at the moment of the injury. We discover no error in the fourth assignment.

Judgment reversed.