
    297 F. 991
    BLUM-O’NEILL CO. v. SULLIVAN.
    No. 4095.
    Circuit Court of Appeals, Ninth Circuit.
    April 7, 1924.
    
      Donohoe & Dimond, of Cordova, Alaska, and Lyons & Orton, of Seattle, Wash., for plaintiff in error.
    Frank H.' Foster, of Cordova, Alaéka, L. V. Ray, of Seward, Alaska, and Robert W. Jennings, of San Francisco, Cal., for defendant in error.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

The defendant had a store and a warehouse in the town of Cordova, Alaska. The plaintiff and Frederickson were both in the defendant’s employment, and were fellow servants, and both were hired and paid by the defendant. Frederickson was in charge of the warehouse, and his duty was to manage and direct the movement of goods therefrom. The plaintiff was the driver of the defendant’s delivery wagon, and he was engaged in delivering goods to and from the warehouse and from the store to the defendant’s customers. Frederickson had no authority to employ or pay or discharge the plaintiff. Taking the testimony in its aspect most favorable to the plaintiff, it goes no further than to show that on. the day on which the injury occurred both Frederickson and he were engaged in the operation of delivering certain goods from the warehouse to the store, and that in selecting-the goods and loading the wagon the plaintiff was under Frederickson’s directions. No charge was made, nor was proof offered to show, that the defendant had failed to supply the plaintiff with safe appliances for his work. The whole case for the plaintiff rests on allegation and proof that the wagon was overloaded by Frederickson.

The plaintiff, in this court, relies upon the proposition that the defendant failed in its duty to furnish him a safe place in which to work, and that the duty was nondelegable, and that Frederickson, in loading the wagon as he did, violated the defendant’s duty to him. We think that the motion for an instructed verdict should have been allowed. While it is held in some jurisdictions that a foreman of a gang of men, vested with power to direct, control, and command the men in the performance of a particular work to be done, represents the employer and is his vice principal, the law applicable to the present case is established by Alaska Mining Co. v. Wheelan, 168 U.S. 86, 18 S.Ct. 40, 42 L.Ed. 390, where it was held that the foreman of a gang of workmen is a fellow servant with them, and that the employer is not liable to one of them for an injury caused by the foreman’s negligence in managing the machinery or in giving orders to the men. The doctrine of that case has been followed by the Supreme Court, and by this and other courts, and has not been modified or departed from. Southern Bell Telephone & Telegraph Co. v. Richardson (C.C.A.) 284 F. 124.

In the case at bar the trial court was of the opinion that the decision in Kreigh v. Westinghouse & Co., 214 U.S. 249, 29 S.Ct. 619, 53 L.Ed. 984, recognized principles inconsistent with the Wheelan Case, and with New England R. R. Co. v. Conroy, 175 U.S. 323, 20 S.Ct. 85, 44 L.Ed. 181, and other prior decisions of the Supreme Court. We are unable to agree with that view. In the Kreigh Case there were two charges of negligence, one that the employer had furnished a derrick with only one guide rope attached to the end of the boom, for the purpose of hauling it back and forth or steadying its operation, whereas there should have been two; the other charge was negligence in operation in that the men operating the boom swung a bucket attached thereto against the plaintiff without giving him any signal or warning. The court held that for the failure to furnish a proper derrick the employer would be liable, but that it was not liable upon the second charge of negligence, that being the negligence of fellow servants. The court, while ruling that a duty was imposed upon the master to furnish safe appliances, which he could not delegate to another and escape liability on his part, proceeded to say: “Nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his. primary duty of providing a reasonably safe appliance and place for his employees to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellowworkmen.”

In the case at bar there can be no question but that the defendant provided the plaintiff a reasonably safe place in which to work and safe appliances to work with, and no complaint is made that Frederickson was not a competent servant. If the place in which the plaintiff worked — that is to say, the wagon — was rendered unsafe, it was the result of a coservant’s negligence in the progress of the work, and a result for which the defendant cannot be held liable. The defendant had done all that could reasonably have been required of it. It was not an insurer of the plaintiff against Frederickson’s negligence. The work in which the plaintiff was engaged was simple and ordinary, and not of that complex or dangerous nature which necessitates the establishment of a set of rules for the protection of employees. Frederickson was not in charge of a distinct division of an extensive and complicated business. Nor was he selected by the defendant to superintend work which without supervision was dangerous. It is not claimed that he possessed superior knowledge of the proper method of loading wagons, or had better opportunity than had the plaintiff of observing the perils of the latter’s employment. Presumably his knowledge was inferior to that of the plaintiff,who had driven the defendant’s delivery wagon for more than five years.

The fact that Frederickson sustained the relation of foreman to the plaintiff is not controlling. Liability in such a case does not depend upon the grade of service of a coemployee, but upon the character of the act itself and a breach of a positive obligation of the master. B. & O. R. R. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; Consolidated Interstate-Callahan M. Co. v. Witkouski, 249 F. 833, 162 C.C.A. 67; James Stewart & Co. v. Newby (C.C.A.) 266 F. 287. And if a negligent manner of doing a work makes a place less safe, that is one of the risks which all engaged in the work have assumed as a risk of the occupation. Deye v. Lodge & Shipley Machine Co., 137 F. 480, 70 C.C.A. 64; American Bridge Co. v. Seeds, 144 F. 605, 75 C.C.A. 407, 11 L.R.A.(N.S.) 1041; Wood v. Potlatch Lumber Co., 213 F. 591, 130 C.C.A. 171.

The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. .  