Prevost v. Citizens' Ice & Refrigerating Co. ( 1898 )

Opinion by

Me. Justice Mitchell,

A vice principal for whose negligence an employer will be liable to other employees must bo either, first, one in whom the employer lias placed the entire charge of the business, or of a distinct branch of it, giving him not mere authority to superintend certain work or certain workmen but control of the business, and exercising no discretion or oversight of his own: N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. 400; or secondly, one to whom he delegates a duty of his own which is a direct, personal, and absolute obligation, from which nothing but performance can relieve him: Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Ball Engine Co., 176 Pa. 459.

In the present case the uniform testimony was that the fall of the pipes that injured the plaintiff was caused by the manner of removing the ice from them, and the judge submitted to the jury to find whether the manner was adopted by the workman who did it, on his own judgment, or whether he did it “by direction of some of the officers of the company higher in authority.” The only person to whom the evidence pointed as having given the order was Flynn, and he does not come within either branch of the definition of a vice principal. The evidence is practically undisputed that the president of the company visited the factory several times a week and exercised a general supervision over its operation. Next to him in authority was Harper, the general manager who hired the men, including plaintiff, and “had entire charge of the business inside and out ” as one of plaintiff’s witnesses expressed it. Flynn was tlie chief engineer, and bad general charge of the engine room and the freezing department, of which he was the foreman or boss. In that capacity he gave orders to the men in that department, and as the manager, Harper, testifies, had authority to engage men for short jobs in the manager’s absence. This is the whole substance of the testimony, and it does not in any view amount to more than that Flynn was the foreman of that room or department. A foreman is ordinarily a fellow-workman: McGinley v. Levering, 152 Pa. 366.

So far we have considered only the plaintiff’s evidence. If however we look at the defendant’s we find that Ballingall, the president, gave the order to Flynn, not only to have the ice removed from the pipes, but to do it by shutting down the brine pumps and letting the pipes become sufficiently warm to allow the ice to be removed easily. If Flynn disregarded this order and directed it to be done in a different way, the defendant would not be liable in any event. Where the employer himself assumes control and gives an express order not only what to do but how to do it, even a vice principal is bound to obej1-, and becomes for the time being a mere eoemployee, whatever his general authority under other circumstances. And the employer is not bound to personally supervise the doing of the work. He is entitled to assume that his orders will be carried out.

The evidence, therefore, whether we look at that on the part of the plaintiff, or at the whole, fails to show anything that justifies the submission to the jury of the question whether Corner, the workman who caused the accident, was acting under the orders of the defendant company or any of its officers, and as Corner himself was admittedly a coemployee, the verdict should have been directed for the defendant.

Judgment reversed.