229 F. 383 | 2d Cir. | 1916
“The negligence of a fellow servant of the employs shall not be a defense where the injury was caused or .contributed to by any of the following causes, namely: Any defect in the works, plant or machinery, of which the employer could have had knowledge by the exercise of ordinary care; the neglect of any person engaged as superintendent, manager, foreman, or any *' * * person in charge or control of the works, plant or machinery; and negligence of any person in charge of or directing the particular work in which the employs was engaged at the time of the injury or death.” Act June 10, 1907 (P. L. 523) § 1.
There is nothing to show that Oravage was not a careful and prudent man. The fact that he had been working for tire defendant for a period of six years as sweeper is persuasive evidence of his efficiency in that capacity. The business was from its very nature an exceedingly dangerous one on account of the grade, the noise, the dust and the smoke. In order to control the situation it was necessary that some one should be in charge of the work as required by the law. If Walsh were not such person it must be admitted that the defendant was conducting a highly dangerous business with no one in charge. We have no doubt that Walsh was in charge as the alter ego of the defendant in this particular work. The cars were run by his orders, he directed the time of running and the number of the cars. The defendant relies upon the case of Remmert v. Penna. Railroad,
The questions of negligence were questions of fact and the jury answered both in favor of the plaintiff. We see no reason to disturb their verdict of $2,250 which was a conservative one considering all the circumstances.
The judgment is affirmed.
I dissent for the reason that I am not satisfied that Walsh was in charge, or control, or was directing within the meaning of the statute.