Barnicle v. A. H. Connor & Co.

110 Iowa 238 | Iowa | 1900

Sherwin, J.

The plaintiff is a carpenter, and was employed by the defendants to work on a building they were erecting. While helping to move a large iron column, he was injured. The negligence complained of is charged in the petition in substantially the following language: “The plaintiff was holding the column, when. Homer Wells, the foreman of the defendants, undertook to take his place-in holding the column, and commanded the plaintiff to let go -of it, and get the cleats. The plaintiff obeyed said command, and let go of the column, when the defendants negligently and carelessly allowed or permitted the column to roll and fall, and it struck plaintiff, and knocked him down, falling on his logs, injuring both of them, and crushing the-left leg to such an extent and in such a manner as to permanently cripple and disable the plaintiff.” The defendants were building contractors, and were engaopd in erecting a large building at Cedar Rapids, Iowa. One HomeiWells was employed by them. lie was a carpenter, and was the foreman of the carpenter force at work on the building in question. The plaintiff and the other carpenters were under his direction and control as to- their work, but he had no power to hire or discharge them. lie was present,, directing and assisting in the movement of the column which inflicted the injury to the. plaintiff. The plaintiff, in his-testimony, says that quite a number of persons assisted in that work, and that he and Mr. Wells put the dolly under-the column, and that immediately thereafter Mr. Wells-directed him to block the column, so that it would not roll; that he (plaintiff) told Mr. Wells that it would roll if he let go of it, and that Mr. Wells then took hold of the column with both hands, and said, “Go, and do as I told you;” that the plaintiff then let- go, and just as he was turning around, the column rolled and struck him. The defendants are not charged with furnishing improper or imperfect machinery or material for the work in question; nor are they charged’ with negligence in the employment of Wells. The sole complaint is that Wells negligently, permitted the column to roll .after he had taken hold of it. The contention of the plaintiff is that Wells was a vice principal, and that defend anisare liable for his negligence.

Whatever may have been the extent of Wells’ power ami control over the men at work on this building, it is clear that, the act alleged to be negligent was the act of a fellow servant, and not that of a vice principal. Wells was at the time attempting to hold the column that plaintiff had a moment before left. He was performing the identical work that plaintiff had been doing, — work which might have been done by a servant of the lowest rank. If was the work of a servant, and did not pertain in any way to’ any personal duty the defendants owed to the plaintiff as their employe. Such being the case, it is well settled that no liability attached to the principal. Newbury v. Manufacturing Co. 100 Iowa, 444; Benn v. Null, 65 Iowa, 407; Coke Co. v. Peterson, 136 Ind. 398 (43 Am. St. Rep. 329, 35 N. E. Rep. 7); Ell v. Railroad Co. 1 N. D. 336 (26 Am. St. Rep. 625, 48 N. W. Rep. 222, 12 L. R. A. 97). The motion to direct a verdict for the defendants should have been sustained.— Reversed.

Granger, G. J., not sitting.