George A. Fuller Co. v. McCloskey

delivered the opinion of the Court:

Before proceeding to a consideration of the various assignments of error, we deem it necessary to direct attention to the *600violation of rule 5 of this court in the preparation of the bill of exceptions in this case. We have had occasion heretofore to advert to the apparent disregard, on the part of counsel, of this rule, and have indicated that upon proper motion such a bill of exceptions would be stricken out and the appeal dismissed. ' It being apparent that more drastic measures are necessary to enforce a compliance with this rule, we now state that the court will hereafter feel called upon- to take action upon its own motion in such cases. Counsel should make an effort immediately after the trial of a case, to agree upon a proper bill of exceptions; and if they are unable to reach such an agreement the matter should speedily be brought to the attention of the trial justice, whose plain duty it will then be to adjust the differences of counsel, and settle a bill of exceptions in conformity with the rules of this court. Such a bill of exceptions as is here presented entails a needless burden upon this court, and an equally needless expense upon the parties to the suit.

1. It is insisted that “it was error in the trial court to decide as matter of law, under all the evidence that Locke (the elevator operator) was the servant of the Fuller Company.” This assignment of error goes to the root of the case. It is conceded that there was no conflict in the evidence upon the facts relating to Locke’s employment. It therefore was the sole province of the court to determine to whom Locke sustained the relation of employee at the time the accident occurred. In other words, it was a question of law, and not of fact. Did the court err? We think not. So far as this inquiry is concerned, the elevator company may be eliminated from consideration. There was no privity whatever between that company and the Mackay company. The defendant company had a limited right to the use of this elevator equipment, including the operator. It chose, for a consideration, to furnish to the Mackay company by the hour, upon the conditions previously mentioned, this elevator equipment and operator. The arrangement, therefore, was between the defendant company and the Mackay company, and the defendant company *601cannot now be heard to say that it did not have authority to make the contract. Eliminating the elevator company, the question may be stated thus: The defendant company to its own advantage, permitted the Mackay company to use its elevator as a sort of movable staging, but the only control the agreement contemplated and permitted was limited to the right to signal the elevator operator when to start and when to stop his machine. In no other respect was this operator under the control of the Mackay company. The moment the defendant company wanted to use this elevator the painters were compelled to suspend work. We do not deem it material whether the amount paid by the Mackay company for this privilege was ultimately credited to the owner of the building, or not, The defendant company was the general contractor. It used this elevator in its work. Had any other device been employed by the Mackay company in painting the elevator shaft, it is evident that the operation of the elevator would necessarily have been temporarily suspended. It follows that the arrangement between the principal and subcontractor was to their mutual interest. The defendant company was primarily responsible for the painting of this shaft. It had made a subcontract with the Mackay company to do this work. That the work might be done expeditiously and with as little interruption to its own use of this elevator as possible, it said to the Mackay company, in effect, you may paint this shaft from the top of our elevator when we are not using it, and we will tell Locke (the operator) to operate the elevator to suit your convenience,' that is to say, to start the elevator when you signal, and to stop it whenever and wherever you wish it stopped. For this service we will charge you $1 an hour.

Applying the rule announced by the Supreme Court of the United States in the case of Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. ed. 480, 29 Sup. Ct. Rep. 252, followed by this court in Sonnemann v. Philadelphia, B. & W. R. Co. ante, 279, we think the correctness of the ruling of the learned trial justice is apparent. In the Standard Oil Case the plaintiff was a ’longshoreman in the employ of a master steve*602dore who was engaged in loading a ship with oil under a contract with the defendant. The plaintiff, while working in the hold, was injured by a load of cases containing oil, which had been negligently lowered. The motive power for conveying these cases of oil from the dock to the ship was a steam winch and drum, and the hoisting and lowering was accomplished by means of a tackle, guy ropes, and hoisting ropes. The tackle and ropes, properly equipped, were furnished by the stevedore. The winch and drum were owned by the defendant, and placed on its dock at a convenient distance. The work of loading was all done by employees of the stevedore, except the operation of the winch. This was done by a winchman in the general employ of the defendant. The winchman was hired and paid by the defendant, the stevedore agreeing to pay the defendant a certain price per thousand for the hoisting. The stevedore had no control over the winchman except to give him the proper signals for hoisting and lowering. The negligence in that case consisted in lowering a draft of cases before receiving a signal. The court held that the winchman remained the servant of the defendant while performing the work described.

In the Sonnemcmn Case, the Knox Express Company undertook to haul and load into a car a quantity of iron for one Simon. The defendant railroad company had for a number of years maintained a movable engine in its freight yard, equipped with derrick and boom, which it furnished without charge to those loading heavy articles upon its cars. The engineer was in the general employ of the defendant, and could be discharged by it alone. The only control exercised by the shipper over this engineer was to give the signals for hoisting and lowering. The court ruled that the engineer remained the servant of the railroad company while engaged in said work for the express company.

In the present case the elevator operator was not in the general employ of the Mackay company, and was not paid by it. Neither was he subject to its discharge. There was an additional reason for restricting the control of the Mackay com*603pany over this operator. It is well known that an elevator is a more or less dangerous and complicated mechanism, requiring in its operation some special knowledge and skill. The record shows that Locke possessed these qualifications. It is apparent that painters ordinarily would not. For this additional reason the defendant company was unwilling to surrender the general control of this elevator to the Mackay company. In other words, it insisted upon operating the elevator itself, allowing the Mackay company to do no more than to give the requisite signals to the operator.

2. This assignment of error questions the sufficiency of the plaintiff’s declaration, and is based solely upon a motion by the defendant, at the close of all the evidence, that the jury be instructed “that under the pleadings and all the evidence their verdict should be for the defendant, the George A. Fuller Company.” The defendant now contends that there was no proper allegation of negligence against it in the declaration, and hence that this motion for a verdict should have been granted. It is well settled that such an omnibus motion will not reach such a defect in the declaration, assuming for the moment that such a defect in fact existed. It is not the duty of the trial court, but the duty of counsel, to examine the declaration and point out such alleged defects, and unless this is done it must be assumed by the appellate court that they were waived. The reason for this rule is very obvious. Td illustrate: One of the defenses interposed by the defendant at the trial of this case was contributory negligence by the plaintiff. Another that the elevator operator, at the time of the accident, was not its servant, but the servant of the Mack-ay company, and hence the fellow servant of the plaintiff. The trial justice, nothing having been said as to the sufficiency of the declaration, had no reason to assume that this motion for a verdict was based upon grounds other than those specifically brought to his attention. If the sufficiency of the declaration was to be challenged, it was the duty of the defendant to say so, and his failure in that regard was fatal. Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. ed. 811, 27 *604Sup. Ct. Rep. 535, 10 A. & E. Ann. Cas. 572. We may add, however, that, assuming this question properly raised, it is without merit. The plaintiff, probably not knowing the existing relation between the original defendants, charged negligence on the part of both, and a breach of duty on the part of this defendant is, we think, sufficiently set forth in the two parts of the declaration already quoted.

3. The defendant asked the court to charge the jury that if the evidence showed that the accident was occasioned wholly or in part because the plaintiff “had placed himself in an exposed and dangerous position on the top of the elevator, when he might readily have placed himself in a safe and secure position, the verdict should be for the defendant.” The court granted the charge after amending it so that it read: “If the accident to the plaintiff was occasioned wholly or in part by reason of the fact that he had placed himself in an exposed and dangerous position on the ledge around the top of the elevator car, with reference to obeying the signals to stop at ' the second floor, if you find that such signals were given ” etc. The plaintiff did not desire to go to the fifth floor, but, on the contrary, had signaled the operator to stop at the second floor. The evidence showed that he was in no danger from the weights until the elevator reached the. fifth floor. .What, therefore, would have been reasonable precaution on his part in preparing to ascend to the second floor might have constituted negligence had he been preparing to ascend to the fifth floor. Having this in mind, the court properly modified the prayer. Whether, after the plaintiff discovered that his signal to stop at the second floor had been disregarded, he exercised due care, — that is, whether he did what a reasonably prudent man would have done in the circumstances to avoid injury, — was covered in another part of the charge.

Finding no error in the record the judgment is affirmed, with costs. Affirmed.

An application by. the appellant for a writ of error to the Supreme Court of the United States was allowed, and it was issued November 11, 1910.