CALLAWAY v. ALLEN, 64 F. 297

BUM, District Judge (after stating the facts as above). ■ The principal questions in the case are whether the device constructed by Foreman Thompson and afterwards used by Foreman Anderson, was of itself an unsafe and dangerous device, and, if so, whether its being such, was the primary cause of the accident, and whether the receiver was responsible for its use upon the occasion in question. We do not understand that it was contended by counsel for appellee on the oral argument, or in the printed brief, that Anderson, the foreman of the gang, was a vice principal of the receiver.

This proposition could not be maintained, in view of the decision of the supreme court in Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914. Anderson was not in any sense the head of any department of the service. He, as well as the men with, him, was working under the supervision and direction of Johnson, the superintendent of bridges and buildings. Johnson and the general superintendent of the road, under the receiver, were, so far as appears, the only ones who could be considered as standing, so far as this bridge device was concerned, in the place of the receiver.

The following illustration by the court in the Baugh Case seems entirely applicable here: “So sometimes there is, in tlie affairs of sncli a corporation, what may be called a manufacturing or repair department, and another strictly operating department. These two departments are, in relation to each oilier, as distinct and separate as though the work of each was carried on by a separate corporation. And from this natural separation flows the rule'that he who is placed in charge of such separate branch of the service — who alone superintends and has control of it — is, as to it, in the place of tlie master.

But this is a very different proposition from that which affirms that each separate piece of work in one of these branches of service is a distinct department, and gives to the individual having control of that piece of work the position of vice principal or representative of the master.” But, as we understand the contention of the appellee, it is this: That it is the absolute duty of the master to furnish safe and suitable machinery and appliances; that this duty cannot be delegated; and that, therefore, when the foremen, Thompson and Anderson, constructed this dangerous device, and used it, the receiver became liable for its use, tbougli it was wholly unknown to Mm, and neither himself nor his general superintendent, nor superintendent of bridges and buildings, had provided it, or authorized its use.

TMs contention, we think, is not maintainable. A railroad corporation must act through its agents, and, where a railroad is in the hands of a receiver, the receiver represents the company, and acts through its agents in the same way. Of course, the receiver must use all reasonable care to provide suitable machinery. The evidence shows that he did so provide in this case.

The employes, however, were npt satisfied with it; and they themselves provided soniething in addition that would make the work of lifting timbers easier for them, though the evidence showed that it was rather a hindrance than a help to the progress of the work. It is true, the superintendent of bridges knew that this device had been used, and its use had been forbidden by him; and he had very recently told Foreman Anderson to throw it away, and that if he used it he should hold him responsible.

Anderson insisted on using it because it was easier on the men, to which the superintendent replied that he (Anderson) was picking up two stringers COO feet from the bridge, when, without his device, he could carry six or eight,, and it took him two weeks to do what he could do without it in one. On the third day before the accident, the superintendent of bridges came to Golfeen, and again found the men using the car with this attachment. They were going out on the bridge, four men on one platform with one stringer, and two men pushing, when he told Anderson to throw the thing to one side and break it up.

The objection to its use seemed to be founded wholly upon its want of effectiveness in aiding the work. 3STo suggestion was made by Johnson or the men that it was not safe. The most that can be said of the superintendent is that he did not succeed in stopping the use of the device. Probably, his objection that it retarded the work may have been the reason why the men afterwards tried to carry three stringers at a time instead of one and two, as they had done before. We do not think, under the circumstances, that the receiver should be held liable for the use of this device.

He neither furnished it, nor authorized its use. It could not be expected that he or the superintendent should, be present at all times and at all places to see that such a device was not used, or that they should take means io destroy it, or prevent its use by force. The orders of the superintendent were disobeyed gnd his wishes disregarded by the em-ployés, and the responsibility for its use should rest with them. But assuming that the superintendent had, by implication or otherwise, authorized its use, still we think there can be no recovery.

The primary cause of the accident was the careless and negligent use of the car by Anderson and the men under him. The weight of evidence is clear that the car, with the added superstructure, was not ordinarily or necessarily dangerous, if carefully handled and not overloaded. Any machine may be made dangerous if wrongfully or negligently used. The evidence shows clearly that the car was overloaded. The timbers were too heavy for the counterbalancing weight, and that was the fault of coemployés, and was the primary and controlling causo of ihe accident.

For these reasons, without considering the question of the danger being open and apparent, and the hazard being assumed by decedent, the decree is reversed, and the cause remanded to the circuit court, with directions to enter a decree in favor of the appellant.