54 F.2d 1052 | 3rd Cir. | 1932
The New York Foundation Company was under contract with the Pennsylvania Railroad) Company to make rock-bottom foundations for piers of a bridge to be built across the Hackensack River. All materials were to be furnished and the entire work was to be done by the Foundation Company. This included the highly specialized work of making and sinking caissons, building scaffolding, mixing concrete and putting it in place, and operating in part under compressed air, all, however, under the supervision and inspection of the Railroad Company’s engineers and inspectors to insure that the construction should be carried on and completed in the way intended by the contract. In the course of the operation a rigger or scaffold builder in the employ of the Foundation Company so laid a runway that it broke> thereby causing another of its employees to fall and sustain injuries. The injured man sued the Railroad Company and from a judgment of nonsuit has taken this appeal; -
One theory of the plaintiff’s ease was that the Railroad Company, through its inspectors, so generally and persistently interfered with the employees of the contractor in their work that the independent quality of the contractor’s relation to the eontraetee was destroyed, or, stated differently, that from the very beginning the eontraetee, through its inspectors, so interfered with and controlled the work of the contractor’s servants that the contractor’s position of master disappeared and its servants became generaUy the servants of the eontraetee. While there is much testimony bearing on actions of the RaiH’oad Company’s inspectors with reference to the work as it progressed through the months, whieh the plaintiff terms interference, they arose mainly if not entirely out of the inspectors’ duty and right under the contract to inspect materials and workmanship and in most instances had to do with concrete mixtures, — the proportion of cement and the degree of moisture, — matters vital to foundation construction and peculiarly subject to inspection and correction under the contract. We hold without going into details that the evidence of general conduct of the inspectors in the assertion of their right to inspect does not prove interference and therefore does not show a change in the character of the independent contractor or a change of masters.
The plaintiff’s other theory of recovery arises out of an alleged interference by one of the eontractee’s inspectors with one of the contractor’s workmen on the occasion of the injury.
Dingsor, an employee of the contractor, was a sküled rigger. He was required among other things to buil’d scaffolding and lay runways. While walking from one place to another on the premises Dingsor, according to his testimony, met Earl, the eontraetee’s inspector, who, joining him, asked if he was making a certain caisson (about two hundred feet away) ready by laying a runway and complained that the job was being delayed. Dingsor replied that he did not have the proper scaffolding planks; that the only planking near at hand was 2x10x16 although there was an abundance of 4x10 a thousand feet away; that the nearby light planking was secondhand and contained knots and grains; and that Earl told.him to get the scaffold ready and to use the 2x10x16 planks. Thereupon Earl departed, and Dingsor, proceeding to the place in question, picked up two of the light planks, laid them as a ten-foot runway from- a platform whieh was built around one caisson to a similar platform built around the next caisson by means of whieh workmen could walk from one to the other. He tested the strength of the two-plank runway by walking across and returning. Later the plaintiff, a fellow-workman, started across when one plank broke causing him to fall and sustain the injuries of which he complains.
Whether this constituted interference with the work of the contractor’s servant so as to make him the servant of the eontraetee must be determined by the tests whieh the law provides in such a case. The mere fact that Dingsor, servant of the contractor, was sent to do work pointed out to him by Earl, servant of the eontraetee, does not make him the contraetee’s servant; “more than that is necessary to take him out of the relation established by the only contract whieh he has made and to make him a voluntary subject of a new sovereign — as the master sometimes was called in the old books.” Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922. This
Laying the runway was work which the contractor had undertaken and was unquestionably within the scope of its servant’s employment. Therefore the inspector of the eontraetee in directing him to lay the runway did not take the servant from his regular work and set him to an outside task. He told him to do nothing more than he should do for his own master, but to do it promptly. The direction was not compulsory upon Dingsor for it was given by one who had no power to control him in its observance or discharge him for disobedience. The direction, on first appearance, was purely supervisory, having for its object the co-ordination of the work in the interest of speed. Having been directed to do a thing within the scope of his employment — “get the scaffold ready”- — Dingsor could and should have selected planks adequate for the purpose in number and strength. Many thick ones were available a short distance away, and many thin ones were lying all about. If he had done this there would have been no case, and, indeed, there is at present little in the ease except for Dingsor’s testimony that Earl told him to use the 2x10 planks. Assuming this to be true, Earl and Dingsor separated after their conversation. Earl went about some other business and Dingsor, without further direction from Earl, set about the work of laying the runway, which was peculiarly that of his original master, the contractor. He was bound to do it in a workmanlike way with regard to the safety of his fellow-employees. Earl had not told him how to do it; being hired for his skill, he was supposed to know. Earl-did not tell him how many of the 2x10 planks to use, whether two side by side or four, with two side by side and two on top to stiffen the bridge. Nor did he otherwise indicate the manner in which the work should be done. All this was left to Dingsor’s judgment and skill, for he was doing what the contractor had hired him to do. When he selected two, and only two, of the 2x10 planks out of all of that size immediately available and laid the runway, we hold that he was working under his contract of hire with the contractor and that accordingly the contractor was at that time his master, and was liable for his negligence, if any he committed. It follows by the same reasoning that Dingsor was not the servant pro hae vice of the defendant.
Even so, the plaintiff contends that the defendant was also negligent in directing, through its inspector, the use of the planks described, and for that negligence it is liable. He bases this contention on the principle that the law refuses to measure degrees of negligence between joint tortfeasors, and urges, •accordingly, that where injuries are sustained by the servant of an independent contractor through the combined fault of the contractor and eontraetee, the eontraetee will be liable. Newman v. Fowler, 37 N. J. Law, 89; Cramblitt v. Pereival-Porter Co., 162 Iowa, 283, 144 N. W. 23; 39 C. J. § 1559; 30 A. L. R. 1508.
There is no question about this law but we see trouble in invoking it and applying it. We cannot find that the plaintiff invoked it in
The. judgment of nonsuit is affirmed.