SARDO v. MORELAND

SARDO v. MORELAND. Master and Servant; Negligence; Contributory Negligence. In an action by a servant against his masters to recover damages for injuries received because of their alleged negligence in providing an improper and unsafe appliance for the conduct of the work on which he was engaged, the action of the lower court in directing a verdict for the defendants held not to be erroneous, the testimony failing to show that the defendants had ever used or authorized the use of a similar appliance previous to the accident, or that on the occasion of the accident they authorized or knew of the use of the appliance in question, while it showed that the accident resulted from the voluntary, thoughtless and improvident act of the plaintiff himself. No. 1008. Submitted October 17, 1900. Decided November 7, 1900. Hearing on an appeal by tbe plaintiff from a judgment of the Supreme Court of the District of Columbia, entered upon a verdict directed by the court in an action to recover damages for personal injuries. Affirmed. The Court in its opinion stated the case as follows: The appellant, Joseph E. Sardo, was plaintiff in a suit instituted by him in the Supreme Court of the District, to recover damages for personal injuries sustained by him through the alleged negligence of the appellees, Walter M. Moreland and Frederick L. Grünewald, the defendants to the suit, in whose employment he was; and the judgment being against him upon a verdict directed by the court upon his own testimony, he lias appealed therefrom to this court. It appears that the appellees are dealers in game and poultry in the Centre Market in this city, and that the plaintiff, who is a man about 48 years of age, was employed by them in September, 1898, as a salesman to assist at their stalls in the market. He states that he was specially assigned to the poultry stalls, which were under the charge of one Frank Reed, and that he was told to obey Reed’s orders. One John T. Lipscomb was in charge of the game stalls. On November 28, 1898, there was a slaughtered deer, the property of the appellees, lying on the floor of the aisle adjacent to the game stalls; and Lipscomb complained to Moreland that it was in their way. Moreland stated that he would have it removed. It does not appear what steps he took for that purpose, or whether he took any. A little later some one about the game stand, it does not appear who, except that it was not either one of the appellees, suggested to get a rope from the warehouse — what warehouse we are left in doubt — and hoist the deer to the ceiling of the market above the stalls, a display which seems to have been occasionally made by the dealers. A colored man, one Carter, got the rope, which the sequel shows to have been old and somewhat frayed. Some one, again it does not appear who, suggested that the rope be run through the holes in the iron lattice work at the top of one of the pillars near the ceiling of the market house; and this was done. It seems that there was an iron hook attached to the pillar which had been used on former occasions for hoisting deer by means of a rope thrown around it. But whether this iron hook was in place at this time does not appear. At all events it was not used on this occasion. While Lipscomb and Carter were endeavoring to raise the deer by means of the rope so adjusted, or before the rope was adjusted, according to the testimony of some of the witnesses for the appellant, Reed and the appellant Sardo went to their assistance. The suggestion or direction to do so came from Reed to Sardo. The words of the former to the latter were: “Come on, Joe, and help them raise the deer at the game stand.” The rope seems to have been caught in the rough iron of the lattice work. After tugging at it in vain for a time, Reed got on a barrel, and Sardo followed him; and they again tugged at the rope, while Lipscomb and Carter sought to boost the deer with their shoulders from beneath. They were able to hoist the deer only about three or four feet. Then Sardo said to Need that he was going to swing off the barrel, and throw his entire weight upon the rope, which he did. In a moment the rope broke, and Sardo was precipitated to the floor and injured. At the time of the accident, the appellee Grünewald, who is conceded not to have had any part in this transaction otherwise than as he may be legally liable as one of the partners, was in the cashier’s box or office about twenty feet away from the place of the accident; and Moreland was standing in the aisle in front of it talking to him; in sight of the game stand, although it is not shown that he was looking in that direction, or saw or knew anything of the proceedings until after the accident. Sardo thereupon instituted this suit to recover damages from his employers, Moreland and Grünewald, on the ground that they were negligent in not providing proper and safe appliances for the conduct of the work on which the plaintiff was employed. At the trial of the cause the facts above stated appeared, with others which we do not deem of importance here to be narrated. There were, it seems, only two or three firms in the market engaged in the poultry and game business; and repeated efforts were made by counsel for the appellant to show' that it was the custom of those to hoist heavy game, which, it is said, was done only once or tw'ice a year, by means of a block and tackle, assumed to be a safer and better way for the purpose. But the testimony offered with this view was excluded by the trial court, and exceptions were reserved to the ruling. Finally, however, the testimony was admitted, when a question of the same character was put to a later witness. The only testimony adduced was that of the plaintiff himself and of the witnesses on his behalf. The defendants offered none. Upon motion of their counsel, at the conclusion of the testimony for the plaintiff, the trial court directed the jury to render a verdict for the defendants. Motion for a new trial was made and overruled; and judgment was entered upon the verdict, from which the plaintiff has appealed. Mr. Chas. Maurice Smith and Mr. Charles H. Merillat for the appellant: It is at least a fair inference and one that should have been left for the jury, and which the defendant should have been called on to rebut (Railway Co. v. Ellis, 54 Fed. Rep. 481), whether defendants in fact were not directly responsible for the rope selected, the iron angle used, and the dangerous method devised for hoisting the deer, and had not given the orders testified to have been given. The jury are the proper ones to draw inferences, the facts being proved. Railroad Co. v. Stout, 17 Wall. 657-661; Whatley v. Coal Co., 26 So. Rep. 125; Pfau v. Reynolds, 53 Ill. 212; Gates v. Hughes, 44 Wis. 336; Douglass v. Mitchell, 35 Pa. St. 446; Greenleaf on Evidence, Sec. 13 ; Le Cointe v. United States, 7 App. D. C. 16. Where the master knows that work is being done for him by a servant, a reasonable inference is that'it was done by the master’s direction, and by a person delegated by him to do it, who, in such circumstances, becomes a vice-principal, for whose selections of material the master is liable. Huth v. Dohle, 76 Mo. App. 671. Whether the negligence was that of the master or of the men, is a question of fact for the jury. Arkerson v. Dennison, 117 Mass. 412. At the very least, whether he is a spectator is for the jury. Crowley v. Cutting, 165 Mass. 438. Defendant owed a positive duty to plaintiff, who was in the performance of duty and took no part in preparation of the appliances, to furnish him safe appliances. Lund v. Lumber Co., 41 Fed. Rep. 202 ; Telander v. Sanlin, 44 Fed. Rep. 564; Guthrie v. Railroad Co., 11 Lea (Term.) 372; Baker v. Railroad Co., 95 Pa. 215. It was no part of plaintiff’s duty to inquire if the defendant had ordered the work to be done or had supplied the appliances. He was ordered to do the work by one placed over him. It was his place to obey orders and do the work he was sent to attend to. Railroad Co. v. McLaughlin, 119 U. S. 579. Both members of the firm were actually present and in plain view, and the jury may have found were acquiescing in what was doing in its behalf. Bennett v. Railroad, Co., 102 U. S. 583. The defendant owed a duty of superintendence and supervision to its employees. Railroad Co. v. Herbert, 116 U. 8. 642; Soutar v. Electric Co., 2 Amn. Neg. Rep. 394; Hess v. Mfg. Co., 68 N. W. Rep. 775 ; Corcoran v. Holbrook, 59 N. Y. 517; Hough v. Railway Co., 100 U. S. 218; Conroy v. Railroad Co., 175 U. 8. 323; Railroad Co. v. Daniels, 152 U. S. 684; Railroad Co. v. Snyder, 140 Ind. 647; Railroad Co. v. Morgan, 132 Ind. 430; Mackey v. Railroad, 19 D. C. 282; Foundry Co. v. Sawyer, 7 Kans. App. 147; Stahl v. Duluth, 71 Minn. 34; Railroad v. Ferch, 18 Tex. Civ. App. 46; Kennedy v. Hyde Co., 92 Fed. Rep. 116; Johnson v. Water Co., 71 Wis. 553; Railroad Co. v. Elliott, 9 App. D. C. 341; McCauley v. Railway Co., 10 App. D. C. 560; Railroad Co. v. McDade, 135 U. S. 554; Wood on Master and Servant, 897 et seq. The appellant did not assume the risks either when he originally pulled on the rope or swung from the barrel. He knew nothing of the worn condition of the rope nor the rough edge over which it passed. He was inexperienced in such work; he had no opportunity for inspection, nor was it his duty to inspect. He had a right to presume on the safety of the appliances, as there was no obvious defect in the appliances, and no apparent peril in what he did. Railroad Co. v. Archibald, 170 U. S.; Prendible v. Mfg. Co., 160 Mass. 139; Fitzgerald v. Paper Co., 155 Mass. 155-162; Connolly v. Poillon, 41 Barb. 366; Arkerson v. Dennison, 117 Mass. 412; Morrissey v. Ferry Co., 47 Mo. 521; Dayharsh v. Railway Co., 103 Mo. 576; Gillman v. Railroad Co., 10 Allen, 233; Malone v. Hawley, 46 Cal. 409; Cooley on Torts, (2d Ed.), p. 655. Mr. Arthur A. Birney and Mr. Henry F. Woodard for the appellees. [MAJORITY — Mr. Justice Morris] Mr. Justice Morris delivered the opinion of the Court: Notwithstanding the able and ingenious argument of counsel for the appellant, we are unable to find that’ the court below committed any error in the trial of this case. The principles of law invoked by counsel and so well and ably stated by them are plain enough; but the difficulty of their case is that there are no facts which would sustain their application. In our opinion, there is no proof of the alleged negligence of the appellees; and, on the contrary, there is abundant evidence of negligent action on the part of the appellant, or rather of his exceedingly improvident exposure of himself to unnecessary danger. The claim is that the appliances provided by the appellees for the hoisting of deer were insufficient and dangerous. There is no proof whatever that the appellees provided any appliance for such hoisting on the present occasion, or that they ordered the deer to be hoisted; and it is not at all certain from the evidence that it was their intention to hoist this deer. There is no proof as to the character of appliance used on any former occasion, if any was used; and no proof that the appliance employed at the time of this accident was of the same kind as had been previously used. The record is wholly silent on this point; and there is nothing in it upon which even a reasonable inference could be based.. If there was anything in the proof of custom which the appellants sought to introduce, and which they were finally permitted by the trial court to introduce, it is fair to infer, so far as this record discloses, that the appellees had used the same appliances and the same methods as the other dealers in the same class of business. The fair inference from the facts as shown in the testimony is that the employees of Moreland and Grünewald, possibly becoming impatient at Moreland’s delay in causing the deer to be removed from the aisle, took the matter into their own hands; that Lispcomb and the colored man, Carter, his assistant, having procured a rope from a warehouse, assumed without proof to have been the warehouse of the appellees, worked this rope into and through the interstices of the iron lattice work over one of the pillars and near the ceiling of the building; and thereby sought to hoist the deer. Whether the rope was old and frayed, and therefore improper for the purpose, must have been manifest to those who sought to use it. That it was a dangerous proceeding to subject even a new and strong rope to the tearing and fraying process necesssarily resulting from contact with the rough edges of the lattice work, must have been equally manifest to all those concerned. And it is in proof that they were put upon special inquiry as to the unsafe character of their appliance by the fact that the rope became clogged or jammed in the iron work and refused to move. As we have said, there is no proof whatever that any such appliance as this had ever been used before by the appellees, or had been at any time authorized by them to be used. And the utmost that could reasonably be claimed here is that they gave a tacit consent to its use on the present occasion because they did not object to it. It is shown that Moreland was some twenty feet away from the place of the accident, and might have seen what was going on, if he was looking that way. But we are not therefrom to infer that he was looking that way, was cognizant of what was being done, and tacitly sanctioned it. Negligence may be inferred from circumstances; but the circumstances must be such as reasonably to justify the inference. Mere possibility that one might have had knowledge, if certain conditions are assumed as having existed, will not justify the imputation to him of such knowledge. But even if we assume that there was actual negligence on the part of Moreland, and that he had expressly authorized and directed the use of a rotten rope on this occasion, and that he had expressly authorized and directed it to be run through the interstices of the lattice work, it is still very plain that the accident which occurred to the appellant was the direct result of his own thoughtless and improvident, although well-meant, action. No one directed the appellant to get on the barrel in order the better to pull the rope; no one directed him to swing off from the barrel at the end of the rope, and thereby to add the weight of his body to the force which was exerted in order to raise the deer. That was undoubtedly a dangerous proceeding, which he would not have been justified in pursuing even at the direct and positive command of Moreland. Railroad Co. v. Jones, 95 U. S. 439. But, so far as the record shows, there was no suggestion from anyone that he should do this thing. It was his own voluntary act to do it. Had he remained upon the floor, or even upon the barrel, tugging at the rope, even though the rope had been broken in the effort, it is very clear that the accident would not have occurred, or at all events would not have occurred in the manner and to the extent to which it did occur. To the appellant’s own action, therefore,, must be attributed the injury which he received, and not to any negligence on the part of his employers. We think that there was nothing in this cause to be submitted to a jury; and we are of opinion that the trial court was entirely right in directing a verdict for the appellees. The judgment appealed from, therefore, must be affirmed, with costs. And it is so ordered.