Ross v. Walker

no. 104.

OPINION,

Mr. Justice Williams :

Walker, the defendant in this action, was engaged in erecting an iron bridge. Duffey was his foreman. Ross was a laborer employed, with many others, in building the bridge. He was hurt while so employed, by falling from a scaffold in consequence of the breaking of a stick of timber which supported it. The scaffold was built by the workmen, as it was needed to support the iron work while it was being put in place in the erection of the bridge. This action was brought to recover damages for the injury so sustained, and the theory of the plaintiff was that'the use of the timber that broke was due to Duffey’s negligence, for which Walker was liable, because Duffey represented him and was his vice-principal. The defendant, admitting that Duffey was his foreman, denied that he was liable for the negligence of his foreman in the discharge of his duty to his fellow workmen. By their fifth point, the defendant’s counsel asked the court to instruct the jury, if they found the defendant put the work in charge of a competent foreman, and provided suitable materials for the scaffolding in sufficient quantity, then he was guilty of no negligence and the verdict must be in his favor. The learned judge refused the instruction asked for, and went on to say that, “ if Duffey was in the entire charge and control of the work of erecting the bridge, determining what materials were to be used for the scaffolding, employing and discharging men, and directing where and what materials were to be used, he was acting for Mr. Walker as vice-principal, and his negligence would be that of the defendant.” The correctness of this definition of a vice-principal is the question raised by the several assignments of error.

Before considering that question, it is important to recall the position and duties of the principal; for these cannot be extended or increased by the circumstance that they are performed through the agency of another person. They may be stated as follows : It is the duty of an employer to provide his laborers with a suitable place to work, with suitable tools and machinery to use, with suitable materials, and with reasonably competent fellow laborers with whom to work. If they are young or without experience in the use of the tools or machinery they are to handle, it is his duty to see that they are instructed in these particulars, and warned of such dangers as are peculiar to the use and care of the machinery with which their labor brings them in contact. Among the more recent of our cases, in which the duties of an employer are stated and applied, are Payne v. Reese, 100 Pa. 301; Rummel v. Dilworth, 131 Pa. 509.

If the principal be a corporation, or be unable for any reason to discharge these obligations in person, they must be discharged through an officer, agent, or foreman. The person who is thus put in the place of the principal, to perform for him the duties which the law imposes, is a vice-principal, and quoad hoc represents the principal so that his act is the act of the principal. This is true, however, only when and so long as his acts are in discharge of the duties which the principal owes to his employees. Beyond this line he acts as a workman, and not as vice-principal. After the workmen have been employed, provided with tools and materials, and the work is actually entered upon, each workman is bound by the nature and terms of service to exercise reasonable care, diligence, and skill in the performance of the work he has undertaken. He is also bound to consider and co-operate with his fellow workmen with a view to promote the success of the industry or undertaking in which they are all engaged. He is as much bound to discharge the duty which the law casts upon him, as is his employer. His failure to do what he is thus bound to do, is a breach of duty towards his employer and his fellow workmen for which he is legally liable. For this reason, the courts have uniformly held that a workman who has been injured by the act or negligence of his fellow workman must look for his compensation to him who was the author of the wrong, and not to their common employer.

The master does not insure his employees against each other, nor is he bound to supervise and direct every detail of their labor. They must exercise their own senses in the selection of material out of the mass provided for them; they must use their own judgments as to the manner of handling it, as to the sufficiency and: stability of the scaffolding they erect for themselves, and the amount of burden to be put upon such structures. No employer could bear the burden of legal responsibility for every blunder or neglect on the part of each and all of his employees. The fact that one employee is more skilful than another, or has had greater experience, and is so deferred to by others, does not change his relation to bis employer or to his fellows. Nor does a difference in rank or grade of service change the rule. When the character of the business requires it, the master is as much bound to provide his workmen with a reasonably competent foreman as to provide them with tools, but in either case his liability ceases when he has made a suitable selection. He is neither bound to provide the best tools and machinery, nor the highest grade of skill in his foreman, but he is bound to provide that which is reasonably safe and sufficient in both cases, and having so done he has discharged his duty. What remains to be done is that each workman, whatever his rank or skill or experience, shall, with reasonable diligence and intelligence, discharge his duty towards his employer and his fellows.

It is thus apparent that, whenever it is sought to hold the master liable for the act or neglect of his foreman, the question to be first considered is whether the negligence complained of relates to anything which it was the duty of the principal to do. If it does, then the principal is liable; for he must see at his peril that his own obligations to his workmen are properly discharged. If it does not, he is not liable; for all his workmen are liable to each other for the consequences of their negligence, respectively, and he does not insure them against each other by the mere fact of employing them. These general principles are stated and illustrated in the recent work of McKinney on Fellow Servants, 134-138. They are also applied in a multitude of cases decided bjr this court, among which are: Patterson v. Railroad Co., 76 Pa. 389; Mullan v. Steamship Co., 78 Pa. 25; Penna. etc. R. Co. v. Mason, 109 Pa. 296; Lewis v. Seifert, 116 Pa. 628; Bier v. Manuf. Co., 130 Pa. 446.

It now remains to apply the rule just stated to the instruction complained of. It was the duty of Walker, as employer or principal, to provide the men employed to build this bridge with suitable machinery and appliances; to furnish materials sufficient in quantity and suitable in character; to employ men who were reasonably competent to do the work for which they were wanted, and to give them the benefit of the services of a reasonably competent foreman. All this, as we understand the evidence, was done. If so, the employer had filled the measure of his legal liability to his workmen. For an error in judgment, or for a neglect of duty on the part of any one of bis employees, from the foreman down to the humblest unskilled laborer, he was not liable. It was not material to this inquiry to know whether “ Duffey had entire charge and control of the work” as a foreman or not; nor to know whether he selected from the mass furnished by the employer the materials to be used for any particular purpose or not; nor, whether he hired and discharged men or not. The inquiry is, was it the employer’s duty, after having provided materials ample in quantity and quality, to supervise the selection of every stick out of the mass for every purpose? To state this question is to answer it. This was not his duty, and for that reason Duffey, if he did select the timber, which is more than doubtful under the testimony, did not represent Walker as a vice-principal in such selection. He and his fellow workmen were to judge of the suitability of the pieces of timber they used for the uses to which they put them, and their error in judgment, or their careless discharge of this duty, was their fault or failure, and not that of their employer. He had discharged his duty when he furnished an abundance of materials from which they could select what was needed. The actual selection out of this stock, of the sticks needed from time to time, was not his duty, but that of the workmen themselves. If there was a visible defect in a stick, common prudence and common care on their part would have rejected it, and supplied its place with another out of the stock at their command.

The learned judge seems to have had the true rule in his mind, but in the hurry of the trial he certainly failed to give it clear and adequate expression, and for this reason the assignments of error must be sustained.

The judgment is reversed.

NO. 105.

Opinion,

Mr. Justice Williams:

The questions raised by the assignments of error in this case are the same as those in the case of Ross v. Walker, ante, 42, in which an opinion has just been filed. For the reasons there given, the judgment in this case is

Reversed.