Foutz v. City of Los Angeles

The plaintiff recovered a judgment against the defendant in an action for damages from personal injuries. The defendant appeals therefrom and also from an order denying a new trial.

The defendant was constructing an aqueduct to bring water from Inyo County to Los Angeles for the use of its inhabitants. It was excavating the canal by means of a suction dredger driven by electric power, operated by four men, all of whom worked under the general direction of a camp foreman named Carter. The mechanical operations of the dredger were under the control of one Berry. While operating the machinery in the regular fashion he stood on a small platform in the front part of the dredger and worked the various parts of the machinery, as required, by means of several movable levers placed at hand for that purpose. He was known as lever-man. Two other men, known as bank-men, worked on the canal bank adjusting its slope as the dredger proceeded and also helping to move the dredger as the work progressed. Foutz, the plaintiff, was employed as an oiler. His primary duty was to keep oil supplied to the machinery on the dredger. Berry was in the immediate control of the movements of the men as they worked. Ordinarily, however, each knew the work he was to do and proceeded to do it, no orders being necessary. If anything unusual occurred in Carter’s absence, Berry had authority to take control and direct the other men

It is unnecessary to state further details. There was sufficient evidence to sustain a finding that the injury was

Under the rule declared by section 1970 of the Civil Code, prior to its amendment in 1907, [Stats. 1907, p. 119], Berry and the plaintiff would have been classed as fellow-servants. That section then declared that an employer was not bound to indemnify an employee for injuries from the negligence of “another person employed by the same employer in the same general business, ” if he had used ordinary care in selecting the culpable employee. Under this definition, it was settled law that a foreman or engineer is a fellow-servant with the workmen engaged with him and under his immediate direction, control, and supervision in carrying on a part of the master’s work. (Trewatha v. Buchanan Gold Min. Co., 96 Cal. 498 , [ 28 Pac. 571 , 31 Pac. 561 ] ; Donovan v. Ferris, 128 Cal. 53 , [ 79 Am. St. Rep. 25 , 60 Pac. 519 ]; Stevens v. San Francisco etc. Co., 100 Cal. 566 , [ 35 Pac. 165 ] ; Daves v. Southern Pac. Co., 98 Cal. 19 , [ 35 Am. St. Rep. 133 , 32 Pac. 708 ]; Fagundes v. Centred Pac. R. Co., 79 Cal. 97 , [ 3 L. R. A. 824 , 21 Pac. 437 ].)

In 1907, this section was amended by adding thereto, among other things, the following: “Provided, nevertheless, that the employer shall be liable for such injury when the same results from a wrongful act, neglect or default of any agent or officer of such employer, superior to the employee injured, or by a person employed by such employer having the right to control or direct the services of such employee injured.” We have italicized the portion of the section as amended which applies particularly to this case. This provision was intended to change the former definition of fellow-servants and to limit that definition to a much smaller class. There can be no doubt that it has that effect. A foreman in charge of others engaged in the same work with him, or an engineer in charge of the operation of the machinery with assistants immediately under him, usually has authority from the master, either

It was not necessary for the plaintiff to show an ordinance or resolution of the council or other express authority giving Berry or Carter directions to carry on this work and control the men. It was admitted that the city was engaged in building the aqueduct and it appeared that this was a part thereof and that it was being constructed by the city, through its officers and agents duly authorized, by means of this dredger operated in this manner by these men. The authority was sufficiently proven.

Complaint is made of a ruling upon instructions to the jury. The defendant asked an instruction to the effect that it was not liable for the negligence of Berry, unless it was shown that the negligence complained of occurred, not only while Berry had the right to control or direct the services of plaintiff, but also that it “occurred in the exercise of such control or direction.” The court struck out the clause quoted and instructed the jury merely that the defendant was not liable unless it was shown that the negligence complained of occurred while Berry had the right to control and direct the services of plaintiff. The court did not elsewhere in-" struct the jury that the defendant would not be liable unless Berry’s negligence occurred in the exercise of his right to control or direct the services of the plaintiff. "We can conceive of cases where such an instruction should be given. For example, if a foreman in charge of men shoveling dirt out of a trench, should himself take a shovel and work in the trench with the men, and in so doing should carelessly strike one of the men with his shovel, it may be that while thus using the shovel he would be a mere fellow-servant with them and that the master would not be liable for the injury paused by the blow. If the evidence left it doubtful whether the negligent act was done by the foreman while working in common with the men or while performing some superior duty pertaining to his foremanship, the question whether or not such an instruction was proper would arise. But here there is no conflict in the evidence with respect to the character of the work Berry was doing, as compared to that of the plaintiff,

This cause was decided by the district court of appeal and the decision of that court was vacated upon a petition for rehearing, because of its statements in regard to the point last mentioned. The following part of the opinion of that court upon another point was not objected to upon the rehearing and we think it correctly states the law on the subject to which it relates:

“There was submitted to the jury certain special interrogatories, first: ‘Did the employee Berry, by his words or acts or both, immediately prior to the accident in which plaintiff was injured, give the plaintiff reasonable grounds for believing that he, the said Berry, would not lower the ladder frame of the dredger mentioned in the complaint ? ’ This question was answered by the jury in the negative. It is claimed by appellant that such answer is inconsistent with the general verdict, and under section 625 of the Code of Civil Procedure said judgment should have been given for defendant. The interrogatory is peculiarly and adroitly worded, but it in terms restricts the time of notice to that immediately preceding the accident. The whole of the conversation with reference to the movement to be made of the cable to be employed, from which the inference might be drawn that the ladder lowering cable would not be disturbed, occurred a considerable time before the accident, and not immediately preceding it. The answer to the question as framed is not, therefore, inconsistent with the general verdict. The second special interrogatory was: ‘Did the employee Berry, prior to the accident in which plaintiff was injured, inform the plaintiff that he was about to lower the ladder frame of the dredger mentioned in the complaint 1 Answer: No.’ It is apparent that the jury believed their attention was called by the first interrogatory to the specific time immediately preceding the injury, and not to what occurred at a more remote period in the progress of the work.”

The judgment and order are affirmed.

Angellotti, J., Sloss, J., Melvin, J., Lorigan, J., and Henshaw, J., concurred,