31 Pa. Super. 453 | Pa. Super. Ct. | 1906
Opinion by
The first, second and third assignments of error may be considered and disposed of together, as they present but a single question, viz: Was the court below justified, under all the evidence, in submitting the case to the jury and refusing to give binding instructions in favor of the defendant ?
The defendant was engaged in making alterations and repairs in and about its buildings. To carry out the plans therefor, g. which had been prepared by an architect, it became necessary \to raise and secure in place, about fifteen feet above the floor, a number of long, heavy wooden beams. When properly in place each end of a beam would securely rest in an iron hanger and these hangers were attached to girders so that the weight of the beams would be supported. The plaintiff was a carpenter employed, with many other men, by the defendant and engaged in doing the work referred to, under the direction of one Weston, the extent of whose» authority and the nature of whose relations to plaintiff and defendant are important questions to be considered.
The testimony offered by the plaintiff tended plainly to prove that the method of handling these beams always used, with the single exception of the instance when the accident
A number of witnesses testified that Weston was in general charge of the men, hiring and discharging them at pleasure. The plaintiff, on this subject, gave the following testimony
With the conflict in the testimony, if any, either as to the immediate cause of the accident or the extent of Weston’s apparent authority, we have no concern whatever. Our duty is simply to ascertain whether or not the plaintiff offered testimony which, if believed and accepted by the jury, would warrant the verdict they have-found. It may be. noted here that the evidence fails to disclose, at any time in connection with this work, the presence or supervision of any executive officer of the defendant company higher in authority than Weston. It is true Mr. Comstock, the architect who drew the plans for the work, testifies that he had general charge of the construction for the company; but he was neither an officer nor agent of the defendant. This brings us naturally to the important inquiry in this case, namely, was Weston at the time the accident occurred and in relation to the situation in which the plaintiff was then placed, a vice principal for whose acts or omissions the defendant must answer, or was he but a fellow servant with the plaintiff, whose negligence'would be one of the risks assumed by the latter as an incident of his employment ?
It would be a uselessly burdensome task to undertake to review all of the cases in which our Supreme Court have undertaken to define a vice principal and to mark the essential characteristics which distinguish him in anj given case from a fellow servant with the plaintiff. In Lewis v. Sei
In Prevost v. Citizens’ Ice, etc., Company, 185 Pa. 617, the same court, speaking through Mr. Justice Mitchell, says : “A vice principal for whose - negligence an employer will be liable to other employees must be either, first, one in whom the employer has 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, etc.”
Even if we were to consider only the class first mentioned in the case last cited, a strong argument could be made to show that Weston, in relation to the construction of the building of the defendant about which we are now inquiring, occupied the position of a vice principal because it is difficult to see, from the evidence, through what other channel the defendant exercised any discretion or oversight in relation to that work. If he was the only representative of the defendant, with whom the testimony brings us into contact, who appeared tó be exercising
The fourth, fifth and sixth assignments complain of the manner in which the case was submitted in the general charge. As to the fifth assignment, we regard it as sufficient to say that it is not a fair extract from the charge of the court. The court did not undertake to instruct the jury, as the extract from the charge quoted in the assignments of error would seem to indicate, “ that the ordinary and careful way to have hoisted this beam and put it in place would have been to have kept it supported by the block and tackle until the beam was fairly settled and secure in its place.” The beginning of the sentence from which this extract is taken clearly shows that the court was but stating the claim of the plaintiff, in that respect, and there is but little to be gained by an attempt to convict the trial court of error by the presentation to an appellate court of. ta.t~a portion of a sentence taken from the entire charge.
The learned court below did not undertake in the charge to review the testimony on either side of the case. No points were presented craving special- instructions as to any portion of the testimony, and in the absence of a request for such instructions upon any particular part of the testimony we do not think the trial court can be reversed for a failure to call the attention of the jury particularly to the theory of the defendant, or the testimony in support of it. We regard the charge of the court, taken as a whole, as a fair submission to the jury of the real points in controversy, and the jury having found under the submission that Weston, in ordering the plaintiff to step out upon the beam and then in further directing the men below to remove the support of the block and tackle, was acting in the capacity of vice principal, and that these orders were the proximate cause of the injury to the plaintiff, the responsibility of the defendant necessarily follows.
The assignments of error are all overruled and the judgment is affirmed.