Southwestern St. Portland Cement v. Riser , 137 S.W. 1188 ( 1911 )

It is contended that the court erred in refusing to instruct a verdict for defendant. The evidence shows that the appellant was guilty of negligence in failing to furnish Harrell, who erected the scaffolds, sufficient ropes and lashings to hang the same with separate ropes and lashings, and for this reason it was necessary to hang both scaffolds from the same ropes. The case was tried on the theory that the company was negligent in failing to furnish Harrell sufficient ropes to enable him to safely hang the scaffolds, and that such negligence caused the injuries to Riser, and that appellee and Harrell were fellow servants. Appellant here contends and argues that if appellant was negligent in this respect such negligence was not the proximate cause of the injuries to appellee, but his injuries proximately resulted from untying the rope suspending the scaffold upon which Riser had been at work. If it be conceded that this argument is sound and that the negligence of the company in failing to furnish sufficient material to enable the scaffold to be properly constructed was not the proximate cause of the injury, but the untying of the rope by Dulaney which suspended the scaffold was the primary cause, still we are of the opinion that the act of Harrell in erecting the scaffolds and in directing the untying of the ropes, knowing that both Riser and Dulaney were ignorant that both scaffolds were suspended by the same ropes and that the untying of one would result in both falling, without warning them of this fact, constituted negligence for which the appellant was responsible.

It was the duty of the master to furnish its servants a reasonably safe place in which to perform their duties. Harrell superintended the erection of the scaffolds and gave the order to Dulaney and appellee to lower them. At the time of giving this order Harrell was superintending the shifting of the scaffolds and both Dulaney and appellee were compelled to obey his orders. Harrell, in erecting the scaffolds and in superintending their shifting and in giving the order to lower the same, was a vice principal and in the performance of a nondelegable duty. Where a master places a servant in charge of certain work and confers upon him the authority to control and direct other servants, who are placed under him, with instructions to obey his orders and directions in the performance of such work, such superior servant, in giving orders and directions to servants under him, represents the master, and negligence of such servant, while in the performance of such duties, is the negligence of the master. Railway Co. v. Wise, 101 Tex. 465, 109 S.W. 112; Young v. Hahan, 96 Tex. 99, 70 S.W. 950; Quinn v. Lumber Co., 126 S.W. 3; Abilene Cotton Oil Co. v. Anderson, 41 Tex. Civ. App. 342, 91 S.W. 607; Mexican Nation Ry. Co. v. Finch, Tex. Civ. App. 409, 27 S.W. 1028; Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S.W. 870; Fogarty v. St. Louis Transfer Co., 180 Mo. 235, 79 S.W. 665, and cases cited; Mosher Mfg. Co. v. Boyles, 132 S.W. 492; Lantry-Sharpe Co. v. McCracken,117 S.W. 453.

We are aware that a writ of error has been granted in the Lantry-Sharpe Case, last above cited, but as the Supreme Court has not finally passed upon the case we do not regard it improper to cite it.

It is assigned that the court erred in giving to the jury special charge requested by the plaintiff, as follows: "If you find and believe from the evidence that any fellow servant or fellow servants of plaintiff failed to exercise ordinary care for his safety on the occasion of his being injured, and that such failure or failures, if any, proximately caused plaintiff to be injured, then you will find for the defendant unless such failure or failures, if any, concurred with the negligence, if any, of the defendant, as hereinbefore defined, and unless such concurring negligence, if any, on the part of the defendant proximately caused plaintiff to be injured.' This assignment is presented as a proposition. The charge complained of announced a correct proposition of law, and the giving of the same does not constitute reversible error. Labatt on Master Servant, 2250; Standard Oil Co. v. `Brown, 218 U.S. 78, 30 Sup.Ct. 669, 54 L.Ed. 939; Railway Co. v. Wise, 106 S.W. 470; Id., 101 Tex. 459, 109 S.W. 112.

Finding no reversible error in the record, the judgment is affirmed.