34 F. 8 | U.S. Cir. Ct. | 1887
(orally.) Without discussing the question of contributory negligence, which 1 am inclined to think would be one for the jury, if the case were to be submitted to them. I proceed to consider the other grounds of alleged liability in the case. It is said by counsel for the plaintiff that the ordinance of the city which made it the duty of the defendants to employ some competent person to take charge of and operate the elevator in question, fixes upon the defendants, under the facts disclosed, a liability to the plaintiff for the injury which he sustained. The ordinance, it seems to me, simply declares a common-law duty; that is, that every person owning, controlling, or operating a passenger or freight elevator shall employ some competent person to take charge of and operate it. As 1 understand it, that is precisely the duty which the law, in the absence of such an ordinance as this, imposes. The law says to every person who owns, controls, and operates one of these elevators, that he must employ some person to run it, and that he must exercise all reasonable care in the selection of a competent person for that purpose. This-
Hough v. Railway Co., 100 U. S. 213, was a case where an engineer on a locomotive sustained an injury caused by the defective condition of the pilot or cow-catcher. There was a certain person in the employment of the company whose duty it was to see than the engine was kept in suitable and proper condition for use. He was the master mechanic, to whom was committed the exclusive management of the motive powei1 of the defendant’s line, with full control over all engineers, and wdth unrestricted power to employ, direct, control, and discharge them at pleasure. There had been neglect of duty in keeping the engine in safe condition for use. The pilot had been left in a defective and dangerous condition, and the engineer had called the attention of the master mechanic to the fact, and had repeatedly requested him to have the defect repaired, and the engine put in safe condition for use. The engineer continued to run the engine, relying upon the requests that he had made
Now let us consider the bearing upon the case we have in hand of the ease of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322. That was a case where the court held that a brakeman working a switch for his train on one track in a railroad yard was a fellow-servant with the engine-man of another train of the same corporation upon an adjacent track, and that he could not maintain an action against the corporation for an injury caused by the negligence of the engine-man in driving his engine.too fast, and not giving due notice of its approach, without proving negligence of the corporation in employing an unfit engine-man. Here was a brakeman working a switch for the train on which he was employed, on one track in a railroad yard. His employment had no connection with the operation of the engine which was upon an adjacent track. His work was entirely disassociated from the running of the engine, and, by the carelessness of the engineer who controlled the movements of the engine, the brakeman was struck and injured. The supreme court held that those two men, engaged in their respective employments,’were fellow-servants, according to the groat preponderance of judicial authority, and therefore that the railroad company was not liable for the injury which the brakeman on one train sustained through the negligence of an engineer on another train. Said Mr. Justice Gray, speaking for the court:
“They are employed and paid by the same master. The duties of the two bring them to work at the same place, at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object, — the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing Ills service; and neither can maintain an action for an injury caused by such negligence, against the corporation, their common master. ”
This is not in conflict with the ruling in Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184. In that case, it. was decided that where an engineer on a locomotive was injured through the carelessness of a conductor on the same train, the company was liable. The grounds of that decision wrere that the conductor had the right to command the
Following out the logic of the Randall Case and this case to which I have just referred, it is my conviction that the plaintiff in the case at bar has made a case in which, if there was negligence at all, it was negligence on the part of the engineer who controlled the motive power of this elevator, and of the elevator boy, one or both, and that they were the fellow-servants of the other employes, including the plaintiff, who were in the habit of riding in the elevator to and from their work. All were in the service of the defendants. The elevator was used in carrying on the business in which all were engaged. It is like the case of the engineer who is running an engine connected with a train, and the other employes who are in service on the same train. Here was an apparatus which was put into the defendants’ building for the purpose of enabling the employes to prosecute the work which they were employed to do. They were engaged in different rooms, and different stories of the building. They went to and from their work by means of this elevator. Here was a man in the basement who controlled the use of the steam-power by which the elevator was moved up and down. The elevator was one of the instruments by which the work of all was being carried on. The engineer had not charge of .a department. He was simply an instrumentality controlling the use of the motive power, and was certainly a fellow-servant with the plaintiff, as was the elevator boy, if the persons employed by the railroad company in the Randall Case were fellow-servants. . They were all doing work — to use the language of some of the cases — which conduced to a common result; neither worked under the orders or control of the other, and so they were fellow-servants.
Counsel are familiar with the rule in relation to the duty of the court in submitting a case to the jury. That rule is, as laid down by the
Mr. ITohtein. I object, and ask for a verdict in favor of the defendants.
The Court. It is not our practice to grant what is technically known as a nonsuit. The proper practice would be for the plaintiff to ask to withdraw a juror and discontinue the case.
Mr. lloldem. I don’t think he has that right after submitting his case.
The Court. There is a statutory provision of this slate to the effect that every person desiring to suffer a nonsuit shall be debarred from doing so, unless he do so before the jury retires from the bar. As 1 am advised, it was the practice of Judge Drummond, applying by way of analogy this statute to such a caso, and is the practice of Judge Elodgbtr, to allow the plaintiff' before the jury retires to withdraw a juror, and discontinue. So I shall permit the plaintiff to take that course.