Skelton v. Pacific Lumber Co.
Before: THE COURT.
Synopsis
The facts are stated in the opinion of the court.
J. N. Gillett, E. & D. Sevier, Van Ness & Redman, and E. S. Pillsbury, for Appellant.
The master was not responsible for the negligence of the engineer or of the superintendent in operating the machinery. (Civ. Code, sec. 1970; Stevens v. Doe, 73 Cal. 26; Donnelly v. San Francisco Bridge Co., 117 Cal. 417; Daves v. Southern Pac. Co., 98 Cal. 19, 26;1 Noyes v. Wood, 102 Cal. 389; McLean v. Blue Point etc. Co., 51 Cal. 255; McDonald v. Hazeltine, 53 Cal. 35; Stevens v. San Francisco etc. R. R. Co., 100 Cal. 554; Crispin v. Babbitt, 81 N. Y. 516;2 Mc-Cosker v. Long Island R. R. Co., 84 N. Y. 77; Kelly v. Jutte & Co., 104 Fed. 955; Rose v. Boston etc. R. R. Co., 58 N. Y. 217; Cullen v. Norton, 126 N. Y. 1; Meeker v. Remington etc. Co., 53 App. Div. 592; 65 N. Y. Supp. 1116; Ewan v. Lippincott, 47 N. J. L. 192;3 Moody v. Hamilton Mfg. Co., 159 Mass. 70;1 Albro v. Canal Co., 6 Cush. 75; Jones v. Granite Mills, 126 Mass. 84;2 Scott v. Sweeny, 34 Hun, 292; St. Louis etc. Ry. Co. v. Needham, 63 Fed. 107.) The verdict is clearly excessive. (Harrison v. Sutter Street Ry. Co., 116 Cal. 156; Green v. Southern Pacific Co., 122 Cal. 563; Wales v. Pacific Electric Motor Co., 130 Cal. 521; Rudiger v. Chicago etc. Ry. Co., 101 Wis. 292, and cases cited; Coley v. City of Statesville, 121 N. C. 301; McAdory v. Louisville etc. R. R. Co., 94 Ala. 272; Chicago etc. R. R. Co. v. Bayfield, 37 Mich. 205; English v. Southern Pacific Co., 13 Utah, 407.3)
Walter H. Robinson, C. L. Dam, and J. F. Coonan, for Respondents.
The negligent order of the superintendent in charge as vice-principal made the master liable. (Beeson v. Green Mountain Gold Min. Co., 57 Cal. 20; Brown v. Sennett, 68 Cal. 230;4 Daves v. Southern Pacific Co., 98 Cal. 24;5 Elledge v. National etc. Ry. Co., 100 Cal. 291;6 Nixon v. Selby Smelting etc. Co., 102 Cal. 463; Ryan v. Los Angeles etc. Co., 112 Cal. 253; Callan v. Bull, 113 Cal. 593; Higgins v. Williams, 114 Cal. 176; Bessemer L. and Imp. Co. v. Campbell, 121 Ala. 50;7 Gerrish v. New Haven Ice Co., 63 Conn. 9; McElligott v. Randolph, 61 Conn. 157;8 Eaves v. Atlantic Novelty etc. Co., 176 Mass. 369; O’Brien v. Look, 171 Mass. 36.) The damages are not excessive, some elements of damage being problematical, and for the jury alone to consider. (Code Civ. Proc., sec. 377; Lange v. Schoettler, 115 Cal. 391; Redfield v. Oakland etc. Ry. Co., 110 Cal. 277.)
THE COURT.
This is a suit by the widow and minor children of one Skelton to recover damages for his death, which, it is claimed, resulted from the negligence of the defendant. The case was tried by a jury, and resulted in a verdict and judgment for the plaintiff in the sum of eighteen thousand dollars. The appeal is from the judgment, and from an order denying the defendant’s motion for a new trial.
The case, omitting immaterial circumstances, may be briefly
[510]
stated: The defendant is the owner of a large establishment for the manufacture of lumber, in the county of Humboldt, including the machine-shop where the accident occurred. Skelton—who at the time of his death was in 'the employ of the defendant, working in the shop—was killed by the breaking of an emery-wheel, a piece of which struck him on the head. The wheel, it is alleged in the complaint, was a safe piece of machinery while run at the usual rate of speed, but became unsafe at the high and extraordinary rate at which it was run by the defendant at the time of the accident, thereby rendering the shop an unsafe place. It appeared from the plaintiffs’ evidence that the cause of the accident was as alleged, and that the excessive speed at which the wheel was running was the result of the express order of the defendant’s superintendent, Douglas, who at and before the time of the accident was the general superintendent and manager of the defendant corporation, with full power over and exclusive charge of the work. There was evidence on the part of the appellant tending to show that the breaking of the emery-wheel was not due to the excessive rate of speed; but the effect of all the evidence upon this subject was to present a disputed question of fact for the jury to decide.
The accident occurred while Douglas, the superintendent, with Thompson, the foreman, was testing a new shake-machine. The machine was connected with the power to determine whether the power was sufficient and the machine safe. The engineer was ordered to shut off the engine, and they told to watch Thompson and Douglas and obey their orders. They directed the engineer to start up and to increase his speed. He did so. The other machines in the shop were not disconnected from the power during this experiment, and, consequently, with the increased power, themselves ran at increased speed. The final result was the breaking of the emery-wheel at which Skelton was working, and his death caused by the flying fragments.
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