BORGMAN 11. OMAHA &: ST. L. BY; CO.
for which the plaintiff is liable. The plaintiff was at all times ready and willing to perform its part of the contract, except in the matter of time; which breach was waived by the :defendant.. The plaintiff having in good faith built and completed the West flat elevator, though not within the time prescribed by the contract, and the defendant having accepted the work, the plaintiff can recover the value of the elevator. Inasmuch as the plaintiff had fully provided machinery, car, and appliances for the East flat elevator; had delivered them all to the defendant upon his premises in pursuance of the c011tract, where they still remain; had set the machinery, and nearly completed the work and labor upon the elevator, and was without its fault prevented by the defencIant from completing the performance of the contract,-it is entitled to recover its loss, which consists, in this case, of its outlay, and is the sum 0£$2,050. It is also entitled to recover damages from the defendant's virtual refusal to have the contract in regard to the steam elevators carried out. As the machinery is still on hand, and no loss of profits is proved, the damages are merely the proper cost of the storage, and the expenses. of insurance, viz., $50. The plaintiff is also entitled to recover 360; the same being thevalue of the work and material placed upon the private residence.. The sUm oU1, 900 having been paid by the defendant, the balance which was due is $2,485; fur which sum, with legal interest from March 14, 1889, as a part of the damages, let judgment be entered for the plaintiff.
BORGMAN 11. OMAHA.
L. Ry. Co.
(Cf,rcwf,t Court, 8. D.lowa. February 25,1890.)
KuTER AND BERVANT-NEGLlGENCE OF VICE-PRINCIPAL,
The foreman of railroad repair-shops, to whom is intrusted the task ot restoring wrecked trains, with the aSSIstance of 8 crew of men selected from tbeworkmen in the shops and the seCtionhands, and who has of all the men engaged in restoring the trainl is, when in charg-e of a wreck. 8 VIce-principal, for whose negligence the railroaa compauy·isliable to 8 workman injured while under his ordera.
At LaW. On motion for new trial. Before BREWER and SHIRAS, JJ. BREWER, J. In this case is presented a motion for a new trial. The principal question arises on these facts:· Plaintiff was a section hand, working on the railroad, then in charge of a receiver, whose responsibility is now assumed by the defendant, A train had been derailed, by which the engine and tender wholly left the track. In attempting to get the tender back on the track, the plaintiff was injured, and the claim was tha.t the injury was through the negligence of one O. E. Smothers, in charge of the work, and known as the "wreck-maater" of the road. The trial judge ruled that, whether Smothers was guilty of negligence or no,
hEl Wll(S,!J. fellow-servant of.the" plaintiff, for whose negligence the master Wal>O,ot rE¥lpo,nsible, and that !,h,e only matter of negligence to be considered in failing,to fllrnish reasonably proper and safe tools and was machinery. In o,ther words, the personal neg1igence of all those eonnected work of ,restoring the wreck was eliminated from the case. Now;, the contention of plaintiff is that, within the spirit and reasoning of,tp,e Case of Railway 00. ,v. Ross, 112 U. S. 377,5 Sup. Ct. Rep. 184, E\mothers occupied such a relation to the road and the work then vice-principal,-the immediate and pending as fairly to be personal representative of the master. I ha ve heretofore had occasion to notice the embarrassments that surround a case of this kind, since the decision of the Ross Case. See Howard v. Railway Co., 26 Fed. Rep. 837; Van Averyv. Railway (h., 35 Fed. Rep. 40; and Mealman v. Railway Co. Rep. 189. ['he RoBS Case recognizes the rule that one havingcontrol of a department of service is a vice-principal,-one for whose negligence the master is responsible,-and affirms that a conductor of a has sucb control of a department. It becomes necessary, therefore, to determine the position and duties of Smothers and other representatives of the company present at the time of this accident. Mr. Smothers' regular work was as foreman of car repairs at the general shops of the company at Stanberr)', Mo, His immediate superior there was J. D. Hunter, the master mechanic, who had control of the entire car department of the road. Wrecks, of course, on this road as others, were not of daily, but only occasional, occurrence. Whenever they happened, the entire charge of them was placed in Mr. Smothers; the master mechanic not going awa)' from Stanberry to look after those matters: The working fOl:cewas ol;>tained by taking skilled mechanics from the car and machine shops at Stanberry, and collecting, for mere manual work, the road as'needed. When the working force was thus collected, it was entirely under the control of Mr. Smother;;. ',['h,6 work was, of course, temporary ; for, as soon as the wreck was restored, the sectionmen went back to their work on *e track, and Mr. Smother's and the others to the shops at Stanberry. . If the wreck was a light one, but few laborers would becollectedj while, if the work was serious, many might be there under his direction. The work might be sim pIe, or ij. might be one requiring the exercise oflarge skill and ability; so that, to meet the continger..cies of theiservice, someone ought to be selected, and placed in charge, of ability, skill, and experience. At this particular time the force under Mr. Smothers' control, at work on the wreck, was composed often or a dozen men. Besides Mr. Smothers, there was present l\'Ir. Coughlin, the general road-master, and Mr. Bu9banan, the generll.l superintendent of the road. The road-master was there mainly for the purpose of putting the track in good condition after the wreck haq. bllen restored; and Mr. Buchanan, while present and observing what was, going on, was not interfering with Mr. Smothers ill the work of J:6stol'ing the wreck. As to hisduties,the following extract his tes!i;mQny is sufficient:
BORGMAN 11. OMAHA &: ,ST. L. RY. CO.
,C,'Quest£cm. As superintendent, what were your Answer. I had general oversight of the ·different ones at work on the road. Q. And of all business connected with the road? A.' Yes,sir. " And. in reference to Mr. Smothers he gave this testimony: "Question. He went to all wrecks on the road? Answer. All or any consequence. Q. At times, when.obe would go away from Stanberry to take up a wreck. state whether or not he had any superior at that place in charge of the immediate work. A. No. sir: everything was to be in his charge when he went to a wreck.-road·master and everyone else. Q. AU'under him? A. Yes; for the time being. Q. State whether all machinery was in his charge also. A. Yes. sir. Q. Did he keep a wrecking crew at head-quarters? A. No. Q. He would select a crew from the section-hands along the road? A. Yes, sir. Q. In whatever direction he might go? A. Yes. sir. Sometimes Smothers would take them up as he went along, and sometimes the agent ' would notify them to go to the wreck." From this it appears that Smothers h!1d full and entire control of this class of work,-this branch of the service,-and of all enga.ged therein. including, among others, such general officers as the road-master. It was a position of responsibility, requiring, for the efficient discharge of its duties, ability, skill, and experience. While it was not a continual, but only an occasional, service, yet that fact does not diminish its importance to the company and to the public. It was also an isolated service. The wreck might be anywhere along the track, away from shops and statiOhs, and where, in the nature of things, the master could be present only through him. Further, the very fact that it was an occasional made the master's duty of selecting a skilled and competent person to take charge thereof more imperative, because in each case a new body of men were collected for the work,-men unacquainted with him, without opportunity of studying his methods and habits. Again, the work is attended with danger. Machinery is to be employed, power otsteam made use of, and all the ri!:'ks that flow therefrom aUEmd this service. There may be many kinds of work going on ,-men with shovels, men a derrick, engineer and fireman moving an engine. All these various employes, doing their different kinds of work in the one service of restoring the wreck, were in this case under the control and direction of the wreck-master, Mr. Smothers. Further than that, all that was done W!iS done under the eyes of the general superintendent; the one who unquestionably represents the master on all portions of the road. And while he did not in fact interfere, while he did not go there for the purpose of interfering, yet the general oversight, as he says, was in him of all the portions of the road and work, and he was there to take note of what was done; and, if it appeared that the wreck-master was incompetent and negligent, he wa!:' there with the duty on behalf of the master of controlling or suspending him. Many of the elements which in the case of the conductor were noticed by the supreme court in the ROB8 Case as reasons for holding him a viceprincipal, and a controller of a department of service, asabove noticed, exist here; namely, entire control, sePllration from all other general officers, servic.e requiring skill and atten,ded with danger; many
different kinds of work, to' accomplish the one the conauctor,bjs is not a daily, but an oClCS.!-sionaJ, work, y"e,t'with him it was exclusive,'he having charge of alltoa'll' serviee andwoi'k on this road. While the matter is not clear to tHy m'!ndand while does not·chme within the letter of the t,l'linkboth the spirit !1tid reasoning ofthllt decision compel Us tbe,master was prElsent atthetir:qe, Of this, service in and and that theJorrnerm,llst be adjudged and considered as in control of a de.partmant,-avice-principak..-for whose negligence the master was re',,' '.' "', sponsible. The v,. Railway 00., 8upra, is much upon by counsel for 'the railroad company, in which Ihyld, tip. ;<!emurrer, that an allegation thll,t a party was master mechanic, havirig sole control of a yard,did notof itself sll<ow that he was in control of a department, r did not in that case hOld thalsuch a person and a might not ,be a vice-principal, but simply that' the extent of his powers and dtities should be more'fully disclosed. I quote this language from . ..It :iloes not appear from the allegations of this complaint, further than that this master mechanic had sale control of 'this yard. Whether it was a yard with one switch or two; a side track or whether it was a trifling matter, or a and extensive responsibility; whether this,sole was limited to the repairs of engineS,or t4ingsof that k,ind, or whether to the tire. business of. a yard of such 8i7.e, a114 with so extensive.works and duties, that the company is bound to put in charge soml! man'of experience. informa.tion. and character,-one for\vhose acts. in all re:,\pects, it should be held sponsible,-is not 8umciently di:'\closed' by a mere statement tba,t the party was a master mechanic,having sole control of this yard. The size of the yard, the amount of responl!ibility or vastness of the business intrusted to bim. the extent of his not disclolled. 1 do not mean to lIay that he dot's occupy such a position that he cannot properly be considered as in controlof a depaltment. so that the cotnpanymay bel"esponsible; 1 simply hold that the complaint. as it stands, is defectiV,e in that respect, and the demurrer 'Will be ·sustained. .. " Now, in this case, *aEl there omitted is disclosed, and it seems to me that it isap.J?,arent, not simply that the entire wreck service 'on this road was placed'in charge of Mr. Smothers, but also that the work, extending over the entire line of roa.d, was of 8uch importance to the company andtheplibllc, and of 8uchnature in itself,as required that the company shbuld put in charge some man of experience, information, and character,and one for whose acts in respect to the service it snould be held. responsible. I do not know that I can add anything to 'make my views clearer. 'It seems to me that my Brother LOVE erred in jWithdrawing this question oftbe personal of those in charge off-he work from the 'consideration of the jury, and I therefore advise that a. new trial be given. I have considered this case upon general principles, and intbelight of the recent rulings of the supreme court of the United the question were one of purely local law, and to be determined 'by'the decisions of the supreme court of the state of Missouri,
BORGMAN". OMAHA &:
il). Whi<!h state the- accident happened, there would be no questiCill as to the responsibilityofthe master for the negligence of Smothers, the wreck.. master. MOOTe v. Railway Co., 85 Mo. 588; McDer1T/I)ttv. Railway Co., 87 Mo. 285;A)owlingv. Allen, 88 Mo. 300; Tablerv. Railway Ch., 93 Mo. 79, 5 S. W. Rep. 810. But, as to how far such decisions should be controlling here, see Easton v. Railway Co., 32 Fed. Rep. 895, and Railway Co. v.Lockwood, 17 Wall. 368. SHIRAS, (concurring.) I entirely concur in the conclusion announced. in the foregoing opinion of the circuit judge, to the effect that it waS erl'Or to hold, as matter of Jaw, that Smothers, the wreck-master, was a fellow"'servant with plaintiff, for whose negligence in the control of the work of removing the wrecked cars from the line of railway the com;' pauy could not be held responsible, and that consequently a new trial should be granted. I cannot, however,yield assent to the views therein expressed as to the test to be applied in determining whether, in a given case, parties occupy the position of co-employes. It is said that embarrassments surround a case of this kind since the decision of the RoBS Ca,'l/l by the supreme court. As I understand the principle intended to he recognized by thestlpreme court in the RoBSChse, it is that where ll. given operation connected with a railway requi.res care and oversight for the proper performance thereof,. and for thatpurpCise there is placed in charge thereof one clothed with the duty of supervising and managing the given work, havi.ng the power of control and direction over those employed in the details of the same, who in turn are expected to obey the orders and instructions of the former, such person, in carrying out the duty of control, supervision. and management, represents the company, and for his negligence in the performance thereof the company is The test of responsibility is not the question whether the person guilty of negligence is &t .the head of some recognized department of the corpo. rate business. Responsibility on the part of the company arises out of the fact that the power of control, managemeQt, and direction has been conferred upon the one touching the special business in hand, and the duty of obedience is exacted from the others. The one is charged with the duty of controlling, plap,aging, direct!ugj the others, with that of obedience and performance; and the relation thus constituted is not that of co-employes, ,but that of therepresentative:of the company and its employes. Under such circum!\tances, the railway company looks to the person whoexEjlcises the power of controlllrid whether be called a superintendent, manager, road-master,oonductor, boss, foreman, or what not, for the proper performancepf tbespecial work placed under bis charge, and requires of those working under his direction obedience to his prders. Where oblldience ilil thus exacted, responsibility is incurred. The railway company cannotJineffect, say to its employes: 'Iliere .is· certain work to be done, requiring care and .skill to secure its proper perf6r.mapce. In the doing it, we place you. under tbe control of A. B., to whose skill and judgment we intrust the management of the tobia"
FEbEBAL RltPOl\'l'ER, '\>'01;
"And then, when sought to be helliliable·for the negligence of A.B. in tbemanagernent of said work, causing injury to one under his control, say: "A.B. did not represent the' company. He was not the head of a or ita equivalent. The work at which j'OU were employed underhiscontrol'waa a small matter. .Only a few men were subject'to hisor'ders. He was not clothed with the dignity of a vice-principaL He bossed you, but he did not represent the company. He was merely your co-servant; and the company, which required you to obey his orders, is not responsible 'for the result of such orders." The test is not necessarily to be found in the extent of the work to be done, in the number of men employed, the size of a yard, or other like considerations. When the work to be done is of such a nature that supervision thereof is required, and the company confides to one the duty of exercising control and management, and demands of others obedience to his behests, it cannot be l',aid that all occupy the same position towards the company, ana towards each other. In the management of the business, the one speaks for and represents the company, and, in carrying out the orders or obeying the directions of the one, the others are obeying the commands of the master. For negligence in the exereise of the duty of supervision and control, which is a duty of the master not to be evaded, the corporation is responsible to one injured thereby, unless he is also guilty of negligence contributing to the injury. The test of responsibility, it seems .to me, must be sought in this matter of the exercise, on the one hand, of control and supervision, and on the other of the duty of obedience to' such supervision; and this relation may exist without regard to the extent of the work intrusted to the supervision of the representative of the company. Such seems to me to be the tendency of the later decisions upon this question, and, on principle, it seems to me to be the rule best calculated to produce beneficial results, when applied to the relations between railway companies and their 'numerous classes of employes.
(.rnBtrlct Oourt, E. D. Mf.8.OW'f" E. D. Maroh 18, 1890.)
Rev. St. U. S. § 2026. whioh it the dlfty of the ohief su,pervisor of elections to receive applioations for appointment as supervisors, and to lay them before the court, and to furnish iufol'IUation to the court with respect.to the applioants,does not oontemplate that tile ohief supervisor shall prepare the applicants' petitions, and no fees are payable for suoh servioes.
SAME-!NSTRUCTI()NS TO SUPERVISORS,
Under secti0'l2026, making it the du,ty of the ohief supervisor to "prepare and furnish * * 'instructions for the use and direotion of the supervisors,» and section 2031, allowing him 20 cents.foraJRxing his slll}l to any dooument, he is entitled to fees for furnishing instruotionsauthentioated under his seal; the fee being the same per folio as that allowed for drafting papers, examinations, etc.
Sum-NOTICES TO SUPERVISORS.
No fee. is allowable "for drafting tration hsts. II· ,
to superVisors to appear to verify regis-