20 Ind. App. 32 | Ind. Ct. App. | 1898
This was an action for damages brought by appellee against appellant, resulting in a verdict and judgment for appellee. There were three paragraphs of the complaint, neither of which is assailed in this court. There was a trial by jury and a special verdict returned, consisting of 246 interrogatories and answers. Each party moved for judgment upon the verdict. The motion of appellee was sustained, and that of appellant overruled.
It is the purpose of each paragraph of the complaint to hold appellant liable for the negligent act of the man Torry, who in each paragraph of the complaint is denominated the agent, representative, and vice principal of appellant. Was Torry such agent and vice principal, or was he a fellow servant with appellee? A solution of this problem will determine the rights of the parties to this action.
The verdict shows that Torry had authority to direct the men where to work, when to work, and with what tools to work; that he had charge of the work being done; that he employed and. paid appellee; that Torry assisted in moving the poles, by helping to dig and fill up the trenches and loosen the wires. Question 225 and answer is as follows: “Q. At the time of plaintiff’s injury was Edward Torry on one of the poles that fell, engaged in loosening the wire, as a part of the work in moving the said poles? Ans. Yes.”
This act of Torry is the very act of which appellee complains, and which must have caused the injury under the facts as found by the jury. There was no one present directing the work of moving the poles but Torry; the work of moving the poles was first passed upon by appellant’s district superintendent, one Calhoun, planned by the superintendent and wire chief, and then turned over to a lineman to be executed. Torry was a lineman in appellant’s employ, and it was the duty of lineman, amongst other duties, to move poles when required. We think the rule is well stated that, if at the time the servant performs the act, the result of the performance of which another servant is injured, the offending party is in the performance of a duty which the master owes to his servant,
And this court in the recently decided case of Peirce, Rec., v. Oliver, 18 Ind. App. 87, said: “It is now well settled that the decisive test whether in any given case an employe is to be regarded as a vice principal or a fellow servant, is not his title or rank or power to employ or discharge, but the nature of the services he performs.”
The following cases, amongst others, in this State sustain the doctrine as above stated: New Pittsburgh, etc., Coke Co. v. Peterson, 136 Ind. 398; Spencer v. Ohio, etc., R. W. Co., 130 Ind. 181; Justice v. Pennsylvania Co., 130 Ind. 321; Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; Salem Stone and Lime Co. v. Chastain, 9 Ind. App. 453.
Now it is clearly found by the jury in this case that Torry was, when he climbed the pole and loosened the wire, engaged in the performance of a part of the work required to be done to move the poles — the
Under the facts found by the jury Torry occupied the same relation to appellee and the other men employed in the work of removing the poles and repairing and constructing the line, that a foreman or section boss occupies who has under him a gang of men engaged in repairing a railroad.
In the case of Northern Pacific R. R. Co. v. Peterson, 162 U. S. 346, the Supreme Court of the United States says in substance: The boss of a small gang in making repairs upon a railroad, over a distance of three sections, aiding the regular gang upon each section as occasion demands, is a fellow servant or a member of the gang, and not a superintendent of a separate department, or in control of such a distinct branch of the work as will render the master liable for his neglect to such co-employes, even if the boss does not actually handle a shovel or a pick. As has been before stated, it was found by the jury that appellant’s district superintendent first passed upon the work of moving the poles; that the work was planned by appellant’s district wire chief, and then given to the man Torry, a lineman, to carry out.
In the case of O’Brien v. American Dredging Co., 53 N. J. L. 291, 21 Atl. 324, it was said: “Whether the master'retain the superintendence and management of his business, or withdraws himself from it and devolves it on a vice principal or representative, it is quite apparent that, although the master or his representative may devise the plans, engage the workmen, provide the machinery and tools and direct the performance of work, neither can, as a general rule, be continually present at the execution of all such
We think the facts found by the jury in this case, brings it squarely within the rule announced in the Indiana cases cited, and also within the rule as adopted by the Supreme Court of the United States, and that appellee and the man Torry were fellow servants. All of the paragraphs of the complaint proceed upon the theory that Torry was the agent and vice principal of appellant, and that it was his, said Torry’s act which caused appellee’s injury, any other reason why appellee may have been injured is by the pleader in each paragraph of the complaint expressly disowned. In each paragraph of the complaint it is distinctly alleged that, “there was no danger in doing said digging, and no danger would have arisen, or injury to the plaintiff occurred, but for the carelessness and negligent conduct of the defendant’s said agent
The lower court erred in sustaining appellee’s motion for judgment upon the special verdict and in overruling appellant’s motion for judgment upon the spécial-verdict.
For the reasons stated the cause is reversed, with .instructions to the lower court to sustain the motion of appellant for judgment upon the special verdict.