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rights, and there were timbers lying across these from north to south. This frame was temporarily held in position by guy ropes. In order to substitute permanent guy lines for the temporary ones, Douglas, who was a rigger and the foreman of this gang, directed one of the men to get some ropes, and ordered the plaintiff to go upon the northwest corner of the frame. After he and Stanley had climbed upon this frame Douglas directed the latter to untie a certain temporary guy rope, so that it might be moved to the corner of the structure, and there used for a permanent line, but Stanley was unable to loosen it. Thereupon Douglas untied it below where he was at work, and the frame immediately fell and injured the plaintiff. One of the laborers testified that he worked in the boiler room department, and that this was 20 or 30 yards from the department in which the engines were being dismantled. Another testified that the power house and machinery hall were different departments, which were all run by the same foreman, and that he worked in the department for dismantling engines under Douglas. Douglas was paid higher wages than the other employés. He directed them what to do and where to work, and also engaged in manual labor with them.

At the close of the evidence, the defendant requested the court to instruct the jury to return a verdict in its favor, on the ground that the negligence which caused the injury was that of the plaintiff’s fellow servant, Douglas, and not that of the defendant; but the court denied the request, and this ruling is assigned as error. The testimony of the servants that the work of dismantling the machinery in which they were employed by the defendant was in different departments, that one of these was the dismantling of the machinery in the power house and another the dismantling of the machinery in machinery hall, was futile and immaterial. Its evident purpose was to endeavor to bring the case under the rule in Railroad Co. v. Baugh, 149 U. S. 368, 383, 13 Sup. Ct. 914, 920, 37 L. Ed. 772, to the effect that the superintendent of a separate department of a vast and diversified business may be a vice principal. “But,” said the court in that case, “this rule can only be fairly applied when the different branches or departments of service are in and of themselves separate and distinct.” But the dismantling of the machinery in the buildings at the \Vorld’s Fair was single and homogeneous, and the testimony of those employed in it was both incompetent and insufficient to divide it into distinct departments. The character of the business and that alone separates it into distinct departments and it cannot be so divided by the testimony of those who are employed to carry it on.

The frame which fell was constructed under the direction of Douglas. He directed Callaghan to station himself upon it and he untied the guy rope which permitted it to fall. Callaghan assumed the risk of the negligence of his fellow servants, and, if Douglas is conclusively shown by this evidence to have been the fellow servant of the plaintiff, the latter was not entitled to recover here, and the court should have instructed the jury to return a verdict for the defendant. “Prima facie all who enter into the employ of a single master are engaged in a common service, and are fellow servants and some other line of demarcation than that of control must exist to de— stroy the relation of fellow servants.” Railroad Co. v. Baugh, 149 U. S. 368, 384, 13 Sup. Ct. 914, 920, 37 L. Ed. 772. The servant assumes the risk of the negligence of his superior fellow servant in the latter’s direction of the men and of the work to the same extent that he assumes the risk of the negligence of the fellow laborer by his side who is engaged in performing the Work. American Bridge Co. v. Seeds, 75 C. C. A. 407, 410, 144 Fed. 605, 608, and cases there cited.

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The duty of the master to exercise ordinary care to make and keep reasonably safe the place in which, and the machinery and appliances with which, his servants are at work, does not extend to cases in which the work which the servants are employed to do necessarily changes the character of the place or of the appliances as to safety as the work progresses. But the duty of care for the safety of the place and of the machinery and appliances in such cases devolves upon the servants to whom the work is intrusted. American Bridge Co. v. Seeds, 75 C. C. A. 407, 415, 144 Fed. 605, 613, and cases there cited. If the negligent act of the servant which causes the injury is done in the discharge of a positive duty of the master, then the negligence therein is the negligence of the master. If it is clone in the discharge of any other duty of the employé, it is the negligence of the servant, the risk of which his fellows have assumed. W'eeks v. Scharer, 111 Fed. 330, 335, 49 C. C. A. 372, 377.

In Coal Co. v. Johnson, 6 C. C. A. 148, 56 Fed. 810, a foreman of a gang of 10 or 12 men worked in a mine under a pit boss, who worked under a superintendent. While one of this foreman’s gang was digging a hole in the floor of a room in the mine by his direction to set a drilling machine, the foreman struck the roof above him with a pick to make a hole there for the same machine, and thereby brought down upon the plaintiff a mass of stones and earth, which seriously injured him. The foreman had authority to direct the men in his gang when and Where to work and what to do. It was his duty to prop the roofs of the rooms with timber, to sound and inspect them so that they would be reasonably safe, to drill holes in their faces, charge them with powder, and fire it at the proper times 'to bring dOWn the coal. This court held that the foreman was not a vice principal, but a fellow servant of the workmen. 1n Minneapolis v. Lundin, 7 C. C. A. 344, 58 Fed. 525, the city engineer was the general superintendent of all the work of the city. He ap~ pointed a superintendent of sewer construction. The latter employed a foreman who superintended and directed the work of a crew of about 50 men. This foreman was empowered to hire and discharge men, and to direct them when, where, and how to work. He ordered one of his gang to reload a hole which had been drilled in a rock, and had been filled with dynamite which had failed to explode, but he did not inform the workman that dynamite remained in the hole. The workman, in ignorance of the presence of the dynamite, proceeded to drill out the hole, the dynamite exploded, and he was injured; but the foreman was held to be his fellow servant. To the same effect are Kansas & A. V. Ry. Co. v. Waters, 16 C. C. A. 609, 70 Fed. 28, and The Miami (D. C.) 87 Fed. 757.

The principles and authorities to which reference has been made leave no alternative in the case in hand. The plaintiff and Douglas were_engaged' in the same work, the work of dismantling heavy machinery, and at the moment of the accident in securing in place for this purpose, a frame which had just been erected and which was held in place by temporary guy ropes, a work which necessarily continually changed the character of the place where, and the appliances with which they were working, as to safety. It was the duty of these servants, of Douglas and Callaghan, and not the duty of the master. to care for the safety of this place in so far as that safety was conditioned by the frame which they were securing in place and their manipulation of it. Douglas was not a vice principal of the master, because he was neither a general manager nor a superintendent of the entire undertaking or of any distinct department of a vast and diversified business. He was not a vice principal because the performance of the specific act which caused the injury was not a part Of the positive duty of the master, but one of the duties of the servant. In the performance of this act and of all , his acts in relation to this frame the evidence is conclusive that he was discharging no positive duty of his master, but theordinary duty of a servant. He was, therefore, in the performance of these acts a fellow servant of the plaintiff and the defendant was not liable.

The judgment below must accordingly be reversed, and the case must be remanded to the Circuit Court, with directions to grant a new trial; and it is so ordered.

VERA CRUZ & P. R. CO. v. WADDELL et al.
(Circuit Court of Appeals, Fourth Circuit. July 9, 1907.)
No. 708.

1. APPEAL ANn ERROR—REVIEW—PBESUMPTIONS—TBIAL BY COURT.

It matters little whether a court trying a case without the intervention of a jury formally excludes evidence which it has necessarily had to hear in order to determine its relevancy at the time when Ofiered, or at the end, when it considers the whole with a view of maturing its judg— ment, for the fact that it remains in the record does not necessarily imply that it was improperly considered in making the final decision.

5 E)EEd.]Note.——For cases in point, see Cent. Dig. vol. 3, Appeal and Error,

766.

2. SAME—FINDINGS OF FACT.

Reversal of the lower court’s judgment as to the facts will only be made when such judgment is shown to be against the clear preponderating weight of all the evidence.

[Ed. Note—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3974.]

3. SAME—PRESUMPTION.

Where the whole testimony has not been incorporated in the record, it will be presumed that such testimony preponderates in favor of and sustains the judgment of the trial court. § ]Note.—-For cases in point, see Cent. Dig. vol. 3, Appeal and Error,

1 .

155 F.—26

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4. SAME—FINDINGS 0F FACT—SUFFICIENCY TO SUPPORT JUDGMENT.

Where findings of fact are specifically made and filed by the trial court sitting without the intervention of a jury, and no exceptions are taken to such findings, no other or additional findings are asked, and the testimony in full is not incorporated in the record, such findings will be taken as true, and the appellate court in passing upon the case will only reverse in case it finds the judgment rendered to be contrary to the facts so found and set forth by the trial court.

[Ed Note—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3673.]

In Error to the Circuit Court of the United States for the District of Maryland.

Carroll T. Bond and J. S. Lemmon (Marbury & Gosnell, on the briefs), for plaintiff in error.

Edward Duffy and William C. Scarritt (Bond, Robinson & Duffy and Scarritt, Scarritt & Jones, on the briefs), for defendants in error.

Before PRITCHARD, Circuit Judge, and WADDILL and DAYTON, District Judges.

DAYTON, District Judge. This case comes here upon a writ of error to a judgment rendered by the Circuit Court of the United States for the District of Maryland. The orlginal action was one in assumpsit instituted by the defendants in error, who will hereinafter be called the “engineers,” against the plaintiff in error, hereinafter to be called the “railroad company.” in the superior court of Baltimore City, and removed by the defendant railroad company to said United States Circuit Court. Attachment in the original proceeding was sued out and served upon Allan McLane, receiver Of the Maryland Trust Company, and he, in the course Of the proceeding, confessed assets in his hands, as such garnishee, sufficient to pay plaintiff’s demand. The defenses interposed were substantially the general issue of nonassumpsit, and the case came on for trial by the court under express stipulation waiving trial by jury, and judgment was rendered in favor of the plaintiff engineers against the defendant railroad company on February 24, 1906, for $10,632.10, principal, and $850.56, interest, after the court had filed in the record its findings of fact and conclusions of law, and a written opinion setting forth its reasons therefor.

The record is voluminous, but only a very brief statement of facts will be necessary. The railroad company, a West Virginia corporation, engaged in the construction of a line of railroad in Mexico, by contracts in the nature of accepted written propositions, employed the plaintiff engineers substantially to furnish plans and specifications for, and inspect and supervise the construction of, the bridges on said railroad line ——some 208 in number. In addition to this, said engineers were called upon and furnished plans for an ocean pier at Vera Cruz, and supervised the construction of the company’s shops at Tierra Blanco, and performed other services, and incurred expenses not necessary here to set forth in detail. The work involved a period of over three years, and, at the end these engineers rendered to the railroad company their account for these services, set forth in 72 specific items, showing a total of $123,215.03, which, after allowing payments of $108,591.45, left, as they claimed, a balance of $14,623.58 due and unpaid to them. The sole controversy in the case turns upon the integrlty Of th1s account, and whether proper and sufficient evidence has been adduced to sustain it.

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Many exceptions to the testimony were taken, motions were made to strike out and exclude testimony, prayers were made for “instructions or declarations by the court as to the law of the case” in the course of the hearing, and numerous assignments of error are now based upon the trial court’s action in overruling these exceptions and motions and denying these prayers. We have carefully considered all these, and, for reasons following, we believe them to be without merit.

It matters little whether a court, trymg by agreement a case in lieu Of a jury, shall formally exclude evidence which it has necessarily had to hear in order to determine its relevancy, at the time when Offered, or at the end, when it considers the whole with a view of maturing its judgment, for, as said in Miller v. Houston City St. Ry. Co., 55 Fed. 366, at page 372, 5 C. C. A. 134, 139:

“The admission of evidence in a case being tried by a court without the intervention of a jury does not require the nice distinction of ruling that it does when it is to go to a jury. And the fact that testimony is given in an answer, or read in a deposition, does not necessarily imply that it is improperly considered in the final examination and conclusion of the case. The same judicial mind that would exclude it from a jury can as readily set it aside upon a final consideration; and, where there appears sufficient evidence to justify the conclusions reached, the presumption is that the irrelevant testimony, although heard and not positively excluded by order. was set aside eventually, and not considered to the injury of the plaintiff in error.”

And in this connection the words of Mr. justice Shiras in Holmes v. Goldsmith, 147 U. s. 150, at page 164,13 Sup. Ct. 288, 292, 37 L. Ed. 118, are deemed pertinent:

“The modern tendency, both of legislation and of the decisions of courts, is to give as wide a scope as possible to the investigation of facts. Courts of error are specially unwilling to reverse cases because unimportant and possibly irrelevant testimony may have crept in, unless there is reason to think that. practical injustice has been thereby caused.” ;

The court below has set forth in six separate paragraphs the facts involved, and the record nowhere discloses any exceptions taken to these findings, and no requests made for other or additional findings, and, although very voluminous by reason of the extended bills of excep— tions, prayers for instructions, and assignments of error, it does not set forth the testimony upon which these findings are based, save and except.to the extent that the bills of exceptions afford summaries of certain portions thereof.

We are convinced that the brief statement and application of a few principles governing appellate courts in passing upon cases like this, involving only questions of fact, will render wholly unnecessary a de— tailed consideration of this multitude of exceptions and assignments of error. And these principles are so fundamental and universal as to require no citation to the vast number of decisions establishing them.

First. Reversal of the lower court’s judgment as to the facts will only be made when such judgment is shown to be against the clear preponderating weight of all the testimony.

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