The principal questions in this case arise under the defendant's contention that the act of negligence complained of was that of a co-employee of the plaintiff.
The complaint alleges, as the cause of the fall of the timber by which the plaintiff was injured, that when unloaded from the cars on the 17th of November, the stringers were insecurely piled, so that the top stringer in the west tier of the pile in question "would fall down from a slight touch or jar and largely of its own weight," and that the timbers were thus insecurely piled, and so allowed to remain until the time of the accident, through the negligence of Bowen, whose duty it was to see that the timbers were properly piled, and to examine the pile before putting inexperienced men to work near it, and under whose supervision the timbers were piled, and who was "the only representative of the defendant on this job."
These allegations are to be taken by us as true, unless they have been found to be untrue by the trial court upon the hearing in damages, or unless their truth be inconsistent with the special facts found.
What caused the timber to fall is not found; that the record shows that the defendant failed to disprove the averments that the stringer fell because the timbers were insecurely piled, and that Bowen was negligent in not causing them to be securely piled, and in allowing them to remain thus insecurely piled, is too clear for discussion. The facts found tend to prove rather than disprove these allegations.
The trial court held that the defendant had not proved that the plaintiff's injuries were caused by the negligence of any servant of the defendant standing in the relation of co-employee to the plaintiff. This ruling was correct, unless the facts found show, as a matter of law, both that the negligence of Bowen did not occur in connection with the discharge of a duty which the law imposed upon the defendant toward its employees, and also that the plaintiff was so far *Page 388 a co-employee with Bowen that the defendant was exempt from liability for the injury caused by Bowen's negligence.
Does it appear from the record that the negligence of Bowen was not with reference to a duty which the defendant was required to perform? This question must be answered in the negative, unless the facts proved show that the defendant in the discharge of its duty towards its employees was not required to see that the timbers were securely piled.
It is found that Bowen was an experienced bridge builder, that he was sent by the defendant as its representative and as a superintendent, and given full charge of the job and men. He in fact superintended and directed the piling, though he also assisted the men in the work. He knew that the stringers were liable to fall if not properly piled, that it would be necessary to remove them one at a time for framing, and for laborers to work near the piles in removing the stringers to the trestle, and it is found to have been his duty to know how these stringers were piled.
We are not called upon to say whether the facts before us clearly show that, for the proper protection of those who were required to perform labor near these piles of timber, it was the master's duty to superintend the piling of these stringers as they were taken from the cars, but only to decide whether it has been proved that such superintendence was not required. To sustain a judgment for substantial damages in a hearing of this character, it is sufficiently alleged in the complaint that the defendant was chargeable with knowledge of the unsafe condition of the pile, that the plaintiff had not equal means of knowledge with the defendant, and that the negligence which caused the accident was that of the principal. Upon the facts of record we cannot say that the trial court erred in holding that the defendant had not disproved these allegations. That it required the superintendence of an experienced person in order to properly pile these stringers, under the circumstances, and that it was the duty of the defendant for the proper protection of its employees who were to work near these piles to see by such superintendence that the timbers were placed upon *Page 389 a level and firm foundation, that each timber was fully supported by the one beneath it, and that the timbers were so securely piled that, upon the removal of some of them upon one side of the pile, a heavy timber upon the top of the tier upon the other side would not be liable to fall from a slight touch or jar, and that the defendant failed to perform such duty, are assumptions not at variance with the facts found.
Considering the character of the duty in respect to which Bowen was negligent, which is the correct test to apply in order to determine whether his negligence was that of a vice-principal or of a fellow-servant (Kelly v. New Haven SteamboatCo., ante, p. 343), we think the facts fail to show that the accident was caused by the negligence of a co-servant with the plaintiff, — assuming for the time that the plaintiff was the servant of the defendant, within the meaning of the fellow-servant rule.
In McElligott v. Randolph, 61 Conn. 157, 163, it was held that the failure of the defendant's master-mechanic to properly superintend the removal of a section of a large gear wheel from the wheel pit, whereby the plaintiff was injured, was the negligence of the employer; and in Gerrish v. NewHaven Ice Co., 63 Conn. 9, 18, that the negligence of the defendant's superintendent — who had charge of the work of raising ice from a lake to an icehouse, by means of an elevator operated by a steam engine — in failing to notify the engineer that the plaintiff was upon the elevator, and in not leaving a person, during the superintendent's temporary absence, in charge of the bell cord for signaling the engineer, was the negligence of the master.
It has been held in other jurisdictions that acts of negligence similar to that described in the complaint may be regarded as the negligence of the master. Stephens v. HudsonValley Knitting Co., 69 Hun, 375; Zintek v. Stimson MillCo., 9 Wash. 395; Babcock v. Old Colony R. Co.,150 Mass. 467; McCauley v. Norcross, 155 id. 584; Baldwin v.St. Louis, K. N. Ry. Co. 75 Iowa 297, 68 id. 37; Pilling v. Narragansett Machine Co., 19 R. I. 666; Mayton v. Sonnefield, *Page 390 48 Southwestern Rep. 608 (Tex.Civ.App. 1898); SpryLumber Co. v. Duggan, 182 Ill. 218.
But if the negligence of Bowen were not that of a vice-principal, was the plaintiff so far an employee of the defendant as to entitle the defendant to exemption from liability under the fellow-servant law?
The complaint states the facts respecting the service of the plaintiff, without alleging whether he was the servant of the Malleable Iron Company or of the defendant. The trial court made no ruling upon this question, other than that by the facts proved the defendant had failed to show that the plaintiff's injury was caused by the negligence of a fellow-servant. The plaintiff was employed by the Malleable Iron Company at fixed wages, as a laborer in their annealing room, and received all his pay from that company. At the direction of his employer he temporarily assisted the bridge men, without knowing that they were not in the employ of the Malleable Iron Company, and without understanding that he was acting as a servant of the Bridge Company, or that his relation to the Malleable Iron Company had been changed. This was by an arrangement between the two companies, of which the plaintiff was ignorant. He considered himself at all time, as he was in fact, under the control of Warner, the superintendent of the Malleable Iron Company, and he obeyed the directions of Bowen, only because told to do so by Warner. The Malleable Iron Company did not lose control over the plaintiff. Warner might at any time have recalled him, or put another workman in his place. The defendant had no power to discharge the plaintiff, beyond the right to forbid him from laboring on the bridge work.
The foundation of the fellow-servant rule is, that by the contract of employment the servant assumes the risk of perils arising from the negligence of competent fellow-servants.Zeigler v. Danbury N. R. Co., 52 Conn. 543, 556; Sullivan v.New York, N. H. H.R. Co., 62 id. 209, 215. Inasmuch as in the case at bar there were no contract relations between the plaintiff and defendant, and the plaintiff did not intentionally enter the defendant's employ, and the proceeding *Page 391 was but a temporary transfer by the Malleable Iron Company of the services of the plaintiff to the defendant, without any knowledge on the plaintiff's part of any change of masters, the plaintiff did not become so far the defendant's servant as to assume the risk of the negligence of its employees, or as to justly entitle the defendant to immunity from the consequences of the negligence of its own servants. The plaintiff was only in a limited sense, and indirectly, the defendant's servant, from the fact that he was the servant of the Malleable Iron Company with which the defendant had contracted.
In the case of Zeigler v. Danbury N. R. Co., 52 Conn. 543, the facts were quite similar to those in the case at bar. Zeigler was a brakeman in the employ of the Shepaug Railroad Company, which company had contracted to furnish to the defendant an engine and trainmen to run a train over a portion of defendant's road. Zeigler was injured while so on the defendant's road, and while directly under the orders of its officers "as if employed and paid by them." In holding that he was not such a servant of the defendant that the latter might avail itself of the defense of common employment, this court said: "If, therefore, the plaintiff may in any sense be regarded as in the service of the defendant, he is clearly without the reason of the rule and therefore not within the rule itself." Other cases supporting this view are Robertson v. Boston Albany R. Co., 160 Mass. 191; Morgan v. Smith, 159 id. 570; Philadelphia, W. B.R. Co. v. State,58 Md. 372; Brewer v. New York, L. E. W. R. Co., 124 N.Y. 59,64; Murray v. Dwight, 15 N.Y. App. Div. 241; Delaware,L. W. R. Co. v. Hardy, 59 N.J.L. 35.
The testimony of Bronson as to the cost of an annuity, was evidently admitted as applicable only in case the court should find, as it did not, that the plaintiff's inability to earn wages was permanent and total.
The court rightly excluded the opinion of Bowen as to whose duty it was to see that the timbers were properly piled; and it is sufficiently clear, even from the stenographer's notes filed in connection with the application to correct the appeal, *Page 392 that the defendant was permitted to prove the facts, rules, or custom, respecting the matter.
Other reasons of appeal do not require special discussion.
The record shows that the plaintiff was injured while, without negligence on his part, he was lawfully and upon the invitation of the defendant's superintendent in a dangerous place, and it fails to show that his injury was not caused by the defendant's negligence.
There is no error.
In this opinion the other judges concurred.