Wust v. Erie City Iron Works

Pee Ctjeiam,

The small amount of law contained in the defendants’ 3d point was so interwoven with questions of fact that the learned judge below could not have affirmed it without infringing upon the province of the jury.

If we treat the defendants’ 7th point as an abstract proposition of law, and assume the facts therein to be correct, it might safely have been affirmed. Unfortunately for the point, it does not deal accurately with the facts of the case. While it may be conceded that the plaintiff voluntarily continued to work with the helper after knowing the physical condition of the latter, yet there was evidence that he had, upon one or more occasions, complained to the foreman of the physical condition of said helper, and informed him that he was incompetent to do his work; that he had been assured by the foreman that another person should be employed in his place as soon as a suitable person could be obtained. Under such circumstances, we do not think the plaintiff can be charged with contributory negligence in continuing to work with his helper until his place could be supplied.

The defendants’ 5th point asked the court to instruct the jury that Frank Quinn, the foreman of the machine and blacksmith shop, had not such a complete delegated authority over that department as rendered the said foreman a vice principal, and that notice to the said foreman was not notice to the principals.

The court declined to affirm this point.

. The extent of the authority of Quinn over those employed under him depended upon the evidence, and the evidence was for the jury. It is manifest that he was something more than a mere foreman. He had power to employ the men in his shop and discharge them without accountability to anyone. In point of fact, he hired the plaintiff and the helper, Mr. Brandt, and discharged the latter about fifteen minutes after the accident occurred. Not only had he authority to hire men and discharge them, but, up to a certain point, he had authority to fix their compensation. Without going into further detail, we think there was sufficient evidence to justify the conclusion that Quinn had sufficient control of the business to make the notice to him notice to the company.

The defendants’ 8th point prayed for a binding instruction in favor of the defendant. We think the point was properly refused, as the case was one for the jury.

The 5th and 6th specifications allege that the court below erred in the admission of certain testimony. As neither is properly assigned, the specifications referred to will not be considered.

Judgment affirmed.