Tweeten v. Tacoma Ry. & Power Co.

GILBERT, Circuit Judge (after stating the facts as above). [1, 2] The court below correctly ruled that the plaintiff was the fellow servant of Watson, the lineman under whose direction he was working, for, while under the settled rule of the Supreme Court of the state of Washington the doctrine is established that the question of fellow service will not be resolved by measuring the rank of the employés, but by the character of the act itself, that in order to be the representative of his principal, an employé need not be the foreman in charge of the work as a whole, or have authority to employ or discharge men, but that it is sufficient if he have the authority to direct the work in hand, and that the employer is.responsible if the injured employé acted in obedience to the command of one having authority to give it (Durante v. Great Northern R. Co., 64 Wasli. 395, 116 Pac. 870 ; McLeod v. Chicago, Milwaukee, etc., R. Co., 65 Wash. 62 , 117 Pac. 749 ; Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324 , 58 Pac. 244 ; Martin v. Hill, 66 Wash. 433 , 119 Pac. 849 ; Olson v. Erickson, 53 Wash. 458 , 102 Pac. 400 ; Johnson v. Motor Shingle Co., 50 Wash. 154 , 96 Pac. 962 ; Jasper v. Bunker Hill, etc., Min. & Con. Co., 50 Wash. 570 , 97 Pac. 743 ; Hall v. Northwest Lumber Co., 61 Wash. 351 , 112 Pac. 369 ; Howe v. Northern Pacific Ry. Co., 30 Wash. 569 , 70 Pac. 1100 , 60 L. R. A. 949; Sandquist v. Independent Tel. Co., 38 Wash. 313 , 80 Pac. 539 ; Anustasakas v. International Contract Co., 57 Wash. *831 453 , 107 Pac. 342 ), the rule is otherwise in the federal courts; and the plaintiff, a citizen of the state of Washington, while he might, on the ground of the lineman’s negligence, have had a good' cause of action in the state court in which the action was originally begun, was deprived of that right when the defendant, a corporation of New Jersey, removed the cause to the court below. Here is a situation which seems to demand remedial legislation; for, while the churts of the Unitéd States will follow the decisions of the courts of the state in which they are held when, in construing the common law, those decisions establish a rule of property, they must ignore them when they establish no more than a rule of liability for personal injuries. Beutler v. Grand Trunk Railway, 224 U. S. 85 , 32 Sup. Ct. 402, 56 L. Ed. 679 ; Salmons v. Norfolk & W. Ry. Co. (C. C.) 162 Fed. 722 ; Snipes v. Southern Ry. Co., 166 Fed. 1 , 91 C. C. A. 593 ; Snare & Triest Co. v. Friedman, 169 Fed. 1 , 94 C. C. A. 369 , 40 L. R. A. (N. S.) 367; Illinois Cent. R. Co. v. Hart, 176 Fed. 245 , 100 C. C. A. 49 . [3] But we think there was sufficient evidence to go to the jury on the question of the defendant’s negligence in failing to warn the plaintiff of the dangers attending the work which he had been directed to do. Prior to that time the plaintiff had been a common laborer, engaged in digging, holes and piling poles. He testified that on three or four occasions he had assisted the linemen at work on top of the work car for an hour or two, but that he had never been warned of the dangers attending such work, and this testimony was undisputed. There is evidence in the record tending to show that the work was dangerous. The lineman testifiéd that “once in awhile” a wire would break loose, “not very often,” but that it “would usually hold.” It thus ap-. pears that the danger of the wire becoming detached when subjected to the strain incident to tightening it was one of the dangers to be reckoned with; and, in view of that evidence, we think it was the duty of the defendant, in placing the plaintiff, an inexperienced workman with an imperfect knowledge of the English language, at the work of assisting linemen engaged in tightening wires from the top of a work car, to instruct him as to the dangers of the work. In Britton v. Central Union Tel. Co., 131 Fed. 844 , 65 C. C. A. 598 , where an ordinary laborer was directed to do a lineman’s work in removing wires from certain old poles, in which work he was injured by the falling of a pole, it was held that the question whether the defendant was negligent in permitting him to do such work, which involved the climbing of the poles, without warning him to make an inspection thereof, and instructing him as to the manner in which such inspection should be made, was for the jury. Among other cases illustrating the principle are Montana Coal & Coke Co. v. Kovec, 176 Fed. 211 , 99 C. C. A. 565 ; Peters v. George, 154 Fed. 634 , 83 C. C. A. 408 ; Pennsylvania R. Co., v. Hartell, 157 Fed. 667 , 85 C. C. A. 335 ; Richardson v. Swift & Co., 96 Fed. 699 , 37 C. C. A. 557 ; Michigan Cent. R. Co. v. Majkzrak, 200 Fed. 936 , 119 C. C. A. 320 ; Atlantic Coast Line R. Co. v. Linstedt, 184 Fed. 36 , 106 C. C. A. 238 . [4] The defendant contends that the failure of the plaintiff to return, or tender a return of the money received by him in settlement *832 of his claim against the defendant precludes a recovery in this action, citing the decisions of this court in Mahr v. Union Pac. R. Co., 170 Fed. 699 , 96 C. C. A. 19 , Price v. Connors, 146 Fed. 503 , 77 C. C. A. 17 , and Hill v. Northern Pacific Ry. Co., 113 Fed. 914 , 51 C. C. A. 544 . But the evidence indicates that the plaintiff has not received from the defendant any money which he is required to return. The money was paid to the doctor who attended him, and the defendant’s claim agent testified that it was customary to pay the doctor’s bills of injured employes. If so, the payment of the doctor’s bill was something which the plaintiff had the right to expect as part of his contract of employment, and by way of compensation for services rendered. He was under no obligation, therefore, to return to the defendant the $25 so paid to the doctor. The judgment is reversed, and the cause remanded for a new trial.