LiNDVALL tl. WOODS.
It is claimed, I say, on the part of the plaintiff, first, that Mr. Murdock was a vice-principal. Now when can a person be said or be called legally the vice-principal: of another, so as to make the employer responsible for his acts,-his negligent acts? In this case'it is for you to de" termine whether, as is claimed on the part of the plaintiff, Mr. Murdock was the representative of the defendants, and, if he was, whether the plaintiff has satisfied you,by the preponderance of evidence, that the injury occurred on account of his negligence. When a foreman of a gang is vested with the entire management, control, and supervision of a'particular work to be done, so as to say not only what shall be done, but how it shall be done, and he has full power and authority to cummand the men under him in the work, and the work is under his practical direction and control; save and except as he may receive directions from time to time from his employer, and ordinarily there is no one else present and authorized to superintend and direct the work of the men, then he represents the employer,-he stands for the employer. It is claimed that, within that principle, the foreman, Murdock, was the reP"' resentative of the defendants. And you will recollect, gentlemen, that testimony has been offered tending to show that Mr. Woods, of the firm of Woods & Lovejoy, one of the defendants here, had the superintendency of this 12 miles-10 or 12 miles-of road which was to be graded and built, and that occasionally, from time to time,-according to his own testimony, nearly every day, according to the testimony of others, twice or three times a week,-he visited these different gangs of meo, at least this gang under the charge of Murdock. Now, in regard to the claim made by plaintiff that Murdock was a vice-principal, if the preponderance of all the evidence satisfies you that the defendants delegated to Murdock, although he is called "foreman," the care and management of the work to be performed. at this cut, and the work to be performed by this gang was under the practical direction and control or Murdock, subject only to the directions given by him personally, as the local foreman, from time to time by the defendant Woods, and to the latter's oversight and examination, when he occasionally, or two or three times a week, came to the work, and if Murdock had the authority to employ and discharge the men working there in his gang, and had direct control of their movements so far as concerned the work in his charge, and that ordinarily there was no one else present and authorized to superintend and direct the work or the laborers, then he represented the defendants. "He stood," as was expressed by a distinguished judge, "in their shoes, whether they fit him or not," and his neglil!;ence is so far the defendants' negligence that they are responsible to the plaintiff on account of it to the extent he was injured in consequence thereof; in other words, if this work required care and oversight for the proper performance thereof, and the evidence satisfies you that Murdock for that purpose was placed in charge of it, and he was clothed with the duty of supervising and managing the work, and had the power of control and direction over the gang of men under him, including the plaintiff, in the details of the work, find the plaintiff and others were required to obey his commands,
orders, and instructions, then,in execnting that duty of control, direction; supervision, and management, Murdock represents the defendants, and for his negligence in performance thereof the defendants are liable, if his negligence was the proximate cause of the plaintiff's injury, whether he is designated as a foreman, construction boss, or by any other name. On the other hand, if you should believe from the evidence that Murdock was simply a foreman of a gang in which the plaintiff was employed,both he and plaintiff, as 'occasion required, working side by side, the former merely leading the work, and giving immediate direction to it and to the men, sometimes in the pre;,;ence of Mr. Woods, as superintendent, then Murdock and plaintiff were fellow-employes in a common employment, and defendants are not liable or responsible for Murdock's' negligence. And if you believe that he was simply a foreman, as I have described to you, then the defendants would be entitled to a verdict in this case, unless the plaintiff has proved that the defendants were negligent in the employment of an incompetent servant, who built the structure which it is claimed was unsafe, and that his negligence was the proximate cause of the injury, and unless there was contributory negligence on the part of the plaintiff himself, to which 1 shall briefly call your attention hereafter. You will recollect that one claim here is that the defendants failed in their duty to employ a competent person; that is, that Johnson was an incompetent employe for the work to which he was assigned. It was the duty of the defendants, as I briefly stated to you, which they per30nally owed to the plaintiff, to use ordinary care to select fellow.employes of sufficient care and skill to make it probable that he would not be subjected to injury from their failure to possess these qualities; and, if the defendants themselves, or any representative who was authorized to employ the men, failed to perform this duty, they woula be liable to the plaintiff for any injuries sustained in consequence ofeuch negligence or incompetency on the part of fellow-workmen thus negligently employed as might be reasonably anticipated as not unlikely to happen from such incompetency, provided they knew of it, or could, by the exercise of ordinary care and caution on their part, have ascertained it. You have heard the testimony, and I shall not repeat it, in regaro to the competency and skill of the workman Johnson, who, all the testimony tends to show, was designated to frame the bents, and! who, it il! claimed on the part of plaintiff, the testimony further tends to show was designated as the person to erect them, with the assistance of other employes that he could call upon, and to place the stringers in position npon them, so that these Petler railroad tracks could be laid out for the purpose of the wark. Now it is for you to determine from all the eVidence; the burden of proof being upon the plaintiff, the alleged incompetency of Johnson, by the preponderance of evidence,and also whether he was the person designated for that particular work of putting that struoture in condition, so that it could be operated as a temporary trestle, upon which the dirt as excavated could be hauled out and filled in. Of course, if he was an incompetent per-
LINDVALL V. WOODS.
son, and his incompetency was known to the defendants; and if the injury to the plaintiff occasioned by the negligence of the workman Johnson in that behalf, then the defendants would be responsible, and the plaintiff would be entitled to recover for such damages as you think he is justly entitled to under the circumstances of the case. But the mere fact that this thing fell down, even if you should believe that it was defective and unsafe, is not sufficient evidence to warrant you in finding that the defendants had knowledge that Johnson was an incompetent person for this service; that is, the mere fact that in this particular instance the defect, if there was any defect or insecurity of the structure, was due to. a failure ofskiH on the part of Johnson, that alone is not sufficient to warrant you in finding that the defendants knew that Johnson was an incompetent person. You must take all the evidence in the case, and determine what knowledge the defendants had preced. ing this work here, before Johnson was employed by them, and from all the evidence-all the attending circumstances-decide and settle the issue as to whether he was incompetent for the work intrusted to him, and, if so, if defendants had knowledge of such incompetency. Now if you should find all these issues in favor of plaintiff, or if you should find that Murdock was the vice-principal of the defendants, and that his negligence was the proximate cause of this injury. then the plaintiff would be entitled to a verdict; or if you should find that, on the other hand, Murdock was a mere foreman, and not a vice-principal, but that the defendants were negligent in employing Johnson, an incompetent person, and that his injuries were caused by such negligence, then the plaintiff would also be entitled to a verdict, unless he himself was guilty of negligence which contributed to cause his injury. If Lindvall went out upon that structure before the time of this accident, as it is claimed, several times. and if he worked upon the dump in view of it, and knew what was going on there, it was his duty to exercise care and caution on his part to aVQid any danger, and it was his duty to see that. he was not exposing himself unnecessarily to danger in doing this work. It is true that he had a right to rely upon the superior information of the defendants, or the person who represented them, or Johnson, if you believe that he was designated to put up this structure; but if you believe that, by the exercise of reasonable care and caution on his part, he might have discovered that this structure was unsafe, if you should believe that it was unsafe, and nevertheless went out upon the structure, then he contributed to his own injury, and he cannot recover, though you should find that the defendants themselves were negligent. Now, gentlemen, I think I have presented this case to you pretty thoroughly, so far as the claim made and the theories advanced by the plaintiff and the defendants. If you should come to the conclusion .that the evidence proves no negligence the part of the defendants, then they are entitled to a verdict. If, on the other hand, you believe that the preponderance of evidence proves negligence on the part of the defendants, then the plaintiff would be entitled to a verdict, unless guilty of contributory negligence, and the question then
is: -should' plaintiff recOvel' i for .the injuries sustalned? :"The:te" certain elements which the: jury are to take into.Mllsidl:'rationindeterrniningtheamount the plaintiff, injured under such, ci.reumstaiIces, should recover, if he has satisfied the jury that 'his injury'was il8ustained by the negligence of a'perSon who owed him a legal drity ,altd ithey are all founded upon compensation. Nothing else:; :ge"l'1tlemen, hut compensation for the injuries sustained is the plaintiff entitled totecover. Of coUrse that, to Borna' extent, is left to the souIid jUdgment and discretion Of the jury, basetl upon all the evidence in the case, and the facts disclosed during the progress of the trial. Of course theplaiIitiff is entitled tocornpensation for loss of time on account Of the il'ljuries sustained. Be is fhrther entitled to compensation for pain tind'suffering. Now that mUBt be left entirely to the jury. Whatwo'Uld compensate a person for pain and suffering? You cannot measureitrindOllarsandcents; at least it must be left to the sound discretion(;)f the jury, and their sound judgment, bearing in mind all the time that ':itis a compensation, and not what may be called "smart money," which' he' is entitled to receive. He is also entitled to compensation for any temporary disability, temporary injury, or permanent injury. and the testimony here tends to show that he at least never will regain his eye-sight; also, what impairment there may be.to his bodily strength, for the evidehce here disCloses beyond any dispute that one leg is shorter than it 'was. He is not the same man that he was before the injury.. At the same time you must graduate, or at least measure, the damages on the theory of compensation only; that being left to your 80unddiscretion, gentlemen. It is for you to Sl\Y on the whole case, if you believe the plaintiff is entitled to a verdict, what amount will compensate him for the injury, bearing in mind that you are to dedde this case upon the strict legal rights of the parties and the cold facts which have been developed here in testimony, not upon sympathy for the plaintiff, who is in affliction. That is not an element to be taken into consideration by the jury, for jurors and courts would be less than human if they did not sympathize with a fellow-man in affiiction. You can take the case, gentlemen.
The jury returned a verdict for plaintiff for $8,800.
LATHAM 'lI. DAVIS.
(CiTCU«t Oourt, D. OoZorado. February 9, 189L)
Where a seller of personal property, by a contract which provides that the title shall remain in him until payment of the price, has received in part payment other goods, he cannot, on refusal of the purchaser to pay the balance, maintain replevin for the goods sola, without first returning the goods received in part paym.ent. In such an action defendant cannot allege counter-olaims for dama.ge for plaintiff's failure to perform the contract of sale.