Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Foland , 174 Ind. 411 ( 1910 )

Myers, J.

This was an action by appellee against appellant for alleged negligence.

1. The material portions of the complaint, which is in one paragraph, are that appellee was an employe and servant of appellant, as a laborer engaged in the work of bridge building, and with other employes of appellant was engaged in preparing the foundation for. abutments for a bridge; that plaintiff and the other employes with whom he was so engaged constituted a force of men called a “bridge gang';” that defendant appointed William Litton superintendent, foreman and boss over said gang, and delegated to him authority to provide the ways, works, tools, machinery and appliances with which to do and perform said work and to direct the manner and means of doing it, to order, direct and control the service and work of each member of said gang, including this plaintiff, and to order, direct and command each of said employes, including this plaintiff, as to what particular service he was to perform and the particular place he should occupy in performing said work, and it was the duty of each employe, including this plaintiff, and he was hound so to do, to conform to and obey each and every order of said Litton in and pertaining to all matters connected with said work and the performance thereof; that on January 3, 1905, there were at said place a great number of ¡tiles, each consisting of a heavy piece of timber about forty feet in length and from eight to twelve inches in diameter, which had previously been driven into the ground about half the length, leaving about twenty feet in length of each pile projecting above the surface of the earth; that prior to said date there had been prepared an excavation or pit in which piling w-as to be driven, and that said piling, which had been so previously driven, as aforesaid, had been braced and fastened together at the top by spiking a heavy board across the tops thereof and from one to another, so that they were firmly stayed, supported and held in place and kept from falling; that on said day said piles were so braced, stayed and secured that none of them could fall, and while they were in said condition said Litton ordered and directed this plaintiff to go into said pit and act as pile steerer, ordered and required other employes to operate a crane derrick, others to operate a pile-driver, others to saw off at the ground level said piles so partially driven, and then and there ordered and directed said employes in charge of said crane derrick to lash a chain and rope around the tops of said piles, one by one, and after they were so sawed off by said other employes to raise them one by one by means of said derrick and swing them in turns over said pit or excavation, and it then became the duty of this plaintiff under his said employment and the order of said Litton to seize the lower end of each pile and steer it to its proper place to be driven, and when so placed it was to be lowered by said derrick and then driven by said employes in charge of said pile-driver; that the place where plaintiff was required to perform said duty was so located that if said piles so partially driven should fall they would fall against and upon him; that plaintiff and all said employes obeyed said Litton, and while plaintiff and said other employes were so engaged, as aforesaid, said Litton ordered, directed and required said employes, so engaged in sawing off said piles to saw all of them without waiting for the derrick men, which said men so engaged in sawing at once did, leaving only a small part of each pile unsawed, and not leaving sufficient amount to support the weight of said piles or to prevent them from falling, without the support of said stays at the top; that after said piles were so sawed, and plaintiff was so engaged in said duty at the point where he was so ordered and required to be, said Litton ordered and required others of said employes, without the knowledge or consent of plaintiff, to go above and to the tops of said piles, and with crowbars pry loose said brace and. stay, which they did, all without the knowledge or consent of plaintiff and without any notice to him whatever; that as soon as said brace and stay was loose, as aforesaid, one of said pilings, of great weight, fell upon and against plaintiff while he was at the point where he was so directed and required to be, whereby his left leg was crushed and broken in such a manner that it became necessary to amputate it.

Then follows a description of his injuries and his loss and damage. It is further alleged that plaintiff received his said injury on account of and by reason of the carelessness and negligence of said Litton in ordering and requiring him to work in said place, and allowing and permitting said defect in the ways and works connected with and in use in said business of defendant, and in causing and requiring said brace to be released and removed therefrom, and causing and permitting said piling to fall, all of which was removed without notice to plaintiff; that each and all of said acts, orders and directions, done and given by said Litton, were done and given by such foreman and superintendent for and on behalf of this defendant; that plaintiff had no notice or knowledge whatever that said brace had been so released or removed, nor of the danger occasioned thereby until said piles fell and injured him.”

If the theory of this complaint is that of liability under section one of the employers’ liability act (Acts 1893 p. 294, §8017 Burns 1908), no cause of action is stated, for the reason that it appears that appellee was not injured by the train operation, and the rule is settled in this State that the reason for the statute, and the basis upon which its constitutionality is grounded, is that of the hazards attending the operation of trains. Indianapolis Traction, etc., Co. v. Kinney (1909), 171 Ind. 612, and cases cited. Appellee’s employment and service was in nowise different from that of an employe in the construction of a bridge by any private person, or corporation, or by any public authority.

The complaint clearly cannot be sustained under the employers ’ liability act.

2. It seems to have been based and tried upon that theory, but lest we might be mistaken in that view, we are led to inquire into the sufficiency of the complaint as a common-law right of action, and are at once confronted with the proposition as to whether the superintendent, foreman and boss was a vice-principal or a fellow servant. The allegation that he was delegated with “power and authority to provide the ways, works, tools, machinery and appliances with which to do and perform the work” is not controlling, for the reason that there is no defect alleged in any of these particulars. If there had been, then, as the duty of providing safe ways, works, tools, etc., is a duty owing by the master, the delegation of the power and authority to provide them would constitute the foreman a vice-principal. American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, and cases cited; Dill v. Marmon (1905), 164 Ind. 507, 69 L. R. A, 163; Fort Wayne Iron, etc., Co. v. Parsell (1907), 168 Ind. 223.

3. His designation as superintendent has in itself no necessary meaning as constituting him a vice-principal; that must be determined from the character of the duties conferred upon him, and not by his rank. Thacker v. Chicago, etc., R. Co. (1902), 159 Ind. 82, 59 L. R. A. 792, and cases cited.

4. Whether one is a vice-principal or a fellow servant is not always readily determinable. In 3 Elliott, Railroads §1317, it is said: “The term ‘vice-principal’ is generally used to denote an employe to whom the employer has intrusted the performance of a duty which the law requires the employer himself to perform. We think that a superior agent or vice-principal is an employe who is entrusted generally with the performance of the master’s duties, or is entrusted with the performance of some of the master’s duties, although he may not be entrusted with all the duties of the employer. We believe that where the duty which the law imposes on the employer is entrusted to an employe the employe is a vice-principal as to that duty, although the matter to which it relates may not be in the strict sense a general one.” This definition seems to us to be sound, and in accord with our own cases. It was said in the case of Thacker v. Chicago, etc., R. Co., supra: “A vice-principal, therefore, is one who represents the master in the discharge of those duties which the master owes to his servants. If, however, the servant whose negligence caused the injury was not at the time discharging a duty which the master owed to his servants, but simply a duty which the servant owed to the master, he was a fellow servant with others engaged in the common business, and the master would not be liable for any injury inflicted upon such fellow servants by reason of his negligence." See, also, Dill v. Marmon, supra, and cases cited.

In the case of Justice v. Pennsylvania Co. (1892), 130 Ind. 321, it was held that a section foreman with authority to hire and discharge men was a vice-principal as to that duty, but a fellow servant of those working with him. Alaska. Mining Co. v. Whelan (1897), 168 U. S. 86, 18 Sup. Ct. 40, 42 L. Ed. 390.

5. The negligence here charged is that of the foreman in directing the work in which, by reason of lack of care in its performance, appellee was injured — neglect of the duty the foreman owed to the master, and to his eoiaborer not to injure him. To constitute a cause of action there must be a duty shown as owing by the master, and its neglect by him, or by one acting in his stead, and consequent injury. Cleveland, etc., R. Co. v. Morrey (1909), 172 Ind. 513, and cases cited. The complaint shows that appellee engaged in a general employment attended with more or less danger, under any circumstances, and no duty is alleged as owing to him by the master which is shown to have been neglected by the master. The most that is shown is that a person who is not shown to be a vice-principal, but at the most a superior fellow servant, by the manner of directing the work caused the injury to appellee. We see no escape from the proposition that the complaint is not good as a common-law right of action.

For the insufficiency of the complaint the judgment is reversed, with instruction to the court below to sustain the demurrer to the complaint and for further proceedings not inconsistent with this opinion.