Woods et al. v. Lindvall, 48 F. 62

Caldwell, J. The effect of the judgment of the state court, dismissing, on the defendants’ motion, the action brought in that court, at the conclusion of the plaintiff’s testimony, upon the ground that the plaintiff had failed to make out a case, is a question of local law depending on the construction of a statute of the state.

Tt appears from 'the latest adjudged cases to be the established doctrine of the supreme court of Minnesota that under the statute of that state, upon a dismissal of .the action when the plaintiff rests his case, on the motion of the defendant, upon the ground that the plaintiff has failed to establish'a cause of action, the proper judgment to render is one of dismissal merely, such as was rendered in this case.

That court holds that such a judgment is not a judgment upon the merits of the action, such as will bar the plaintiff from maintaining another suit for the same cause, but that it is, in effect, nothing more than a common-law or voluntary nonsuit. Craver v. Christian, 34. Minn. 397, 26 N. W. Rep. 8; Andrews v. School Dist., 35 Minn. 70, 27 N. W. Rep. 303; Conrad v. Bauldwin, 44 Minn. 406, 46 N. W. Rep. 850. The construction placed on the state statute by the supreme court of the state will be followed by this court.

The .record of .the judgment of dismissal constitutes no bar to this action, and it was rightly excluded. Did the court err In refusing to instruct the jury at the dose of the evidence to return a verdict for the defendants? The solution of this question involves the application of the law to the facts of the case. There is no room for controversy over the material facts upon which the case must turn. They are very fully set out in the statement of the case.

There was abundant evidence to warrant the jury in finding that the trestle was constructed Avithout a duo regard for the safety of those wlio Avere to AA'ork upon it. It Avas not braced between the trestle legs; the stringers laid on top were not spiked to the caps of the bents; the ties and track laid on the stringers Avere not spiked to the stringers; there AA’ere no chucks on the stringers on either side of the caps; nor any bolts driven into them on either side of the caps. The evidence shows that the doing of one or more of these things Avas necessary to render the structure reasonably safe and secure.

The only means used to hold- it together Avas a rope tied by hand around the stringers and the caps at each trestle-bent.

It is not claimed that the plaintiff Avas guilty of contributory negligence, or that he constructed or assisted in constructing the bents or trestles, lie Avas employed by Murdock to work on the dump,- — that is, to dump ears, shovel dirt, and tamp the track;, but Murdock could assign bim to do aiiy other AA’ork, and did require him to assist in raising trestle-bents when bis services AA'ero necessary, and be was on the trestle by Murdock’s order, assisting in raising a trestle-bent, when, Avithout any fault or negligence on his part, the trestle upon which he Avas at work, by reason of its imperfect construction, fell and injured him.

Are the plaintiffs in error chargeable with this faulty construction of the trestle, and liable to the defendant in error for ¡he injury he sustained by reason thereof? If ibis trestle liad -been erected under the immediate personal supervision and direction of the plaintiffs in error, it is clear they Avould be liable.

But, instead of supervising and directing the work in person, they delegated this power and duty to Murdock; and it is .said Murdock and the plaintiff aro felloAA’-servants, and that the rule which precludes a servant from recovering from liis master for an injury received through the negligence of a fellow-servant is applicable to this case. The proper construction of this trestle mis a work that required more mechanical skill, judgment, and experience than is commonly possessed by the ordinary laborer, and the plaintiffs in error recognized this fact.

They appointed a foreman to superintend, direct, and control the Avork. Murdock Avas intrusted AA’ith full control of the construction AA'ork on the

section of the railroad embracing this trestle. He had authority to direct all the men on that

section — between 30 and 40 in number — Avhen to work, where to work, and Iioav to work, and it was their duty to obey liis orders. He superintended and supervised ail the Avork on the section, and laired and discharged workmen, at liis discretion. in these respects he A\ras invested with all the poAver and authority his principals possessed. He did not ordinarily do manual labor; his chief duty was to personally supervise the AA’ork, including the building of the trestle, and to give directions how all parts of the same should be done.

He went back and forth between the places where the different crews were at work on the section, directing and instructing, and occasionally assisting, each of them in the work they were doing. Johnson, who framed the bents and put up the trestle, worked in obedience to his orders, as well as the other men. As the plaintiffs assumed through Murdock the superintendence and control of the construction of the trestle, they were bound to exercise ordinary care to make it reasonably safe and secure for those called to do work Upon it.

In the discharge of this duty Murdock occupied the place of the plaintiffs in error, and any failure on his part to exercise ordinary care in the discharge of this duty is imputable to them. Whether the trestle was one of those structures the building of which the master might have committed to ordinary fellow-laborers, without any instructions or superintending care, by simply providing them with adequate materials and tools to do the work, need not be discussed. The plaintiffs in error did not attempt to build the trestle in any such way.

They did not leave the mode and manner of its construction to the discretion or judgment of the laborers doing the work, but they constituted Murdock their representative, and imposed on him the duty, and conferred on him the authority, to supervise, direct, and control its construction, and required the laborers to obey his orders and directions in the premises. Under these circumstances, Murdock did not sustain the relation of a fellow-servant to the defendant in error in respect to this work.

He stood in the shoes of his employers, and was their representative, and they are responsible for the results of his negligence in the work so committed to his direction, supervision, and control. This is the doctrine of the supreme court of the United States, (Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184; Railroad Co. v. Herbert, 16 U. S. 642, 6 Sup. Ct. Rep. 590,) and is the rule laid down in this circuit, (Borgman v. Railway Co., 41 Fed. Rep. 667,) and by the courts of last resort in many of the states, and is appropriately denominated the “American Rule,” (Shear. & R.

Neg., 4th Ed.,§§ 226-228.) This court unanimously approved and applied the rule in the case of Railroad Co. v. Wilson, 48 Fed. Rep. 57, (decided at the present term.) The reasons in support of the rule are forcibly and convincingly stated in the authorities we have cited, and need not be repeated here. In our judgment, the rule is right in principle, and is supported by the weight of authority.

There was abundant evidence to warrant the jury in finding that Murdock did not exercise ordinary skill and care in supervising and directing the construction of the trestle, and that by reason of this negligence on his part the trestle was so defectively and imperfectly constructed that it fell and injured the defendant in error. This disposes of the first, second, and third assignments of error. According to the view we have taken of the case, the court below properly modified the third request to charge, and properly refused the thirteenth and fourteenth requests.

The fourth, fifth, and sixth assignments of error are therefore untenable. In the seventh assignment complaint is made of the action of the court in leaving the jury to determine whether Murdoch and Lind vail wore fellow-servants, but as that issue was, in our opinion, rightly determined by the jury, and submitted to them under proper directions, the seventh assignment of error is untenable. The judgment of the court below is affirmed. Hallett, J., dissents.