157 F. 230 | 8th Cir. | 1907
The manufacturing company was engaged in installing a refrigerator plant in a brewery in Fremont, Neb., and while lifting into place some refrigerating pipe, Otte, one of its employés, was injured. . He successfully prosecuted a suit for damages in the court below, and this writ of error is brought to secure a reversal of the judgment. The court below was requested at the close of all the evidence to direct a verdict in favor of the defendant on the
The logic of the charge, in view of the undisputed evidence, is that, even if Wright was only a foreman actually working with a gang of men under the immediate direction of a superintendent, yet if he had charge of the work, the right to hire and discharge men for that work, and to direct them in that work, he was a vice principal, and his negligence was imputable to the master. The evidence does not disclose that defendant was engaged in a business which naturally or reasonably, within the rule laid down in B. & O. R. R. v. Baugh, 149 U. S. 368, 383, 13 Sup. Ct. 914, 37 L. Ed. 772, consisted of different departments which required different executive heads, or that there were any such departments. On the contrary, so far as disclosed by this record, the defendant had one business, simple and indivisible in its character, and directed as usual by its general officers or agents. There is no proof that Wright was intrusted with the management and supervision of defendant’s entire business, or of any separate department as known to the law. He, with the plaintiff, was engaged at the time of the injury to the latter in executing a single and separate piece of work, one out of many in the general business of the master; and at the time of the injury they were actually working together in doing the act which produced the injury.
In these circumstances the fact that Wright had actual control of the crew, the power to hire and discharge them, and to direct their movements in that particular work, did not erect that single job into a department of defendant’s business, and did not make him a vice principal. Alaska Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40, 42 L. Ed. 390; City of Minneapolis v. Lundin, 7 C. C. A. 344, 58 Fed. 525; United Zinc Companies v. Wright, 156 Fed. 571; Westing