
    WINKLEMAN v. CITY OF ADRIAN.
    Master and Servant — Injuries to Servant — Work Directed by Servant —Appeal — Previous Decision as Law of Case.
    In an action against a city for the death of a sewer employe, caused by the giving way of certain sheet piling, evidence examined, and held, to he in legal effect the same as that shown by the record on a former appeal to this court and that a verdict should have been directed for defendant on the ground that the piling was put in under the direction of deceased who alone was responsible for its defects. Salzwedel v. City of Adrian, 145 Mich. 380.
    Error to Lenawee; Chester, J.
    Submitted January 14, 1908.
    (Docket No. 48.)
    Decided March 17, 1908.
    Case by Bertha J. Winkleman, administratrix of the estate of Fritz Carl. Salzwedel, deceased, against the city of Adrian for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.
    
      
      James W. Helme, for appellant.
    
      Theodore M. Joslin, for appellee.
   Blair, J.

This ease has been submitted to three juries and is now before this court for the second time. The first report of the case will be found in 145 Mich. 280, where a sufficient statement of the case will be found. The plaintiff has remarried since the second trial. A new trial was ordered by this court, and the jury, upon such trial, having found a verdict for plaintiff, defendant again brings the case to this court for review.

Defendant’s counsel contends that a verdict should have been directed for defendant, in accordance with our previous decision, and, unless the testimony presented by this record is substantially different from that in the record previously reviewed, this contention must prevail.

Plaintiff’s counsel insists that the record is substantially different, the testimony of the following witnesses showing that Salzwedel did not have charge of the building but that Andrew J. Wood did, viz., William Jones, Isaac Thompson, Frank Johnson, Henry C. Lentz, John Edmunds, and Fred Witt. On the other hand, it is argued that the testimony of defendant’s witnesses that Salzwedel did have charge of the construction was thoroughly impeached and the jury might properly diregard it.

Jones, Johnson, and Thompson testified at the previous trial. Edmunds, Lentz, and Witt were new witnesses. The testimony of Lentz is unimportant. Witt testified:

“Q. Ask him who was the foreman and boss of that sewer ?

“A. Wood.

“Q. Ask him who built the curbing?

“A. He says he don’t know because he wasn’t there.

“Q. Well, ask him if he ever worked on the curbing ?

“A. No, sir. He said there were others that done that.

“Q. Ask him what others did it ?

“A. He says he couldn’t say, because he didn’t work at that place, he was a block away.

“Q. No, I don’t mean the day he got killed but other times.

“A. No, he says he hasn’t worked there any of the time, he said he was a block away from where these men worked right along.

“ Q. Ask him if there was more than one boss there— more than one foreman ?

“A. No.

“Q. Was Mr. Wood the boss of all the men there ?

“A. Yes.”

Edmunds testified, among other things, as follows:

“Q. I ask you who gave the directions as to how the curbing should be built ?

“A. Why, the foreman, I heard him tell them when they commenced to go up hill there, it wasn’t so deep, and not so solid curbing to start on, but I heard Mr. Wood telling them, ‘Be careful, boys, and build your curbing so you are safe.’

“Q. And did Mr. Salzwedel have anything to say about it, any more than the rest of them ?

“A. Why, he seemed to act to be the leader of it, he laid the tile, and put down the crosspieces as many as he wanted, it seems, so to suit him. Mr. Wood gave the men orders about putting in the curbing. Salzwedel was a sort of leader, he was doing the main work of putting in the sewers down in the bottom, in getting the full depth of it, Salzwedel had, as far as I understood it, he had a perfect right to get as many curb planks in there as he wants to, and as many crosspieces as he wants to. Mr. Wood didn’t hinder him from having what he wanted to be perfectly safe.

“Q. Yes; and Mr. Wood had charge of all the men at the time they were building this curbing ?

“A. He did.

“Q. And he gave each and every one of them their orders ?

“A. He gave them orders to build the curbing and build them so they could be working in a safe place.

“Q. Yes.

“A. And I noticed that when the curbing was built, he often went by himself, he would kind of drive a plank down a little, if he thought they wasn’t quite deep enough for them to keep them from caving in on each side.

etQ. You said — you attempted to explain there about the foreman putting in the curbing — you talked about Wood, and then you talked about the foreman; what do you mean by that ?

“A. That foreman, Mr. Wood, he was the foreman of the sewer.

“Q. Yes; but you say down below, when you were working there, and putting in shoring and curbing that Mr. Salzwedel told you how he wanted that put in ?

“A. Well, Mr. Westerman, I’ll— If a man gives me the job to put in those tile and curb them, and gives me the right to have what I want to save myself, I consider that I am boss, I use my own judgment there about, so that „I think that I am safe to put in my big tile; they were big tile they were putting in there. * * *

“A. If he wasn’t perfectly satisfied that that was safe to put his tile in here, there would be nobody to hinder him from having what he wanted.

“Q. Yes, he always did have what he wanted, didn’t he ?

“A. He did.

“Q. And he gave his orders for what he wanted ?

“A. He did; and if he didn’t get just what he wanted—

“ Q. He would ask Wood for it ?

“A. Yes, and he got it, so if he didn’t get what he wanted there would be no blame for it.

Q. Nobody to blame for it but himself ?

“A. It seems so. * * *

Q. But as to the general direction of the men who were working, as to putting in that curbing, Mr. Wood gave the orders to them as to how to put that in ?

“A. He did.

Q. And what directions were given by Mr. Wood ?

CiA. Well, I have already explained the direction he was giving, he gave the directions to put in that curbing and put crosspieces enough in there so that Mr. Salzwedel could be safe in there.

“ Q. Yes, the number of crosspieces, Mr. Salzwedel could have as many crosspieces, of course, as he wanted ?

“A. He could have what he wanted, yes.

Q. And if any of the other men called for anything there, they could have it ?

“A. Yes. * * *

Q. Well, but your claim is here that Mr. Salzwedel seemed to have charge of that part of the work.

“A. Why, wouldn’t it be natural, Mr. Westerman, when I am in there, that I have charge to get what I want to be safe ?

Q. Yes; well, he directed the other men, if he thought he wanted something, didn’t he, and told them where to put it, and how he wanted to put it, Mr. Salzwedel did F

“A. Why, he wouldn’t tell them what to do, but if he called for an extra plank to go down there, there was men up above to give it to him. * * *

Q. And you thought from what you saw, or you believe from what you saw, that Mr. Salzwedel was directing how he wanted it to keep himself safe down there ?

“A. Why, sure thing. * * *

“Q, Well, who was directing the general construction ?

“A. Mr. Wood ordered the curbing built there.

“Q. Yes.

“A. But under the instructions if they built so they were safe to work there.

“Q. And Mr. Salzwedel only followed out his orders, did he, the same as you, when you were working down there F

“A. Well, I couldn’t answer for what Mr. Salzwedel tried to do down there; he probably worked and thought he was perfectly safe, and found out he wasn’t, the same as I have been in ditches, where I thought I was safe and been buried clear to my neck two or three times.”

Johnson testified:

“All I ever seen Wood do was walk up and down the bank. I have heard him tell Mr. Salzwedel to see that everything was right down in the ditch before he went down in. I have heard him give directions to the other men. I did not receive directions from any one except Andrew Wood.”

Jones testified:

“Andrew J. Wood hired and discharged the men on the Nelson street sewer. I hired out to John Hammer and kept right on the same. Hammer died and Mr. Wood took his place. Mr. Wood hired men after that time. Mr. Wood see that the material was there for the sewer, the tile and manholes, also the curbing, and such work as that. He told the men what to do. He generally walked up and down the sewer, watched the sewer. There was no one around there in the capacity of a boss, or foreman, besides Mr. Wood. * * * Why, I heard Mr. Wood telling men what to do.

“Q. Yes, and did you hear Mr. Wood tell Mr. Salzwedel what to do ?

“A. Well, I heard him giving his men directions, that is, some of them.

“Q. And among those, was Mr. Salzwedel one of the number to whom he gave directions ?

“A. Well, he was one of the number of men that was working there.

“Mr. Westerman: Well, we move to strike that out.

The Court: Well, he wants to know whether you heard him give him any directions.

“A. Well, you see, Í might, and still not remember it; you see; that is the idea; I could not remember as to him instructing him at any certain time. It has been so long that I couldn’t remember him instructing him at any certain time. * * *

“Q. Do you mean — I ask you if you mean that Mr. Wood directed the building of the curbing, that he oversaw it ?

“A. Why, that’s my idea of the matter.

“Mr. Westerman: I object to that as incompetent, to the question as incompetent.

“The Court: It seems to me that it isn’t very hard work to tell how that curbing came to be in there.

“Mr. Joslin: Well, lam asking who gave, the orders and directed the men about building the curbing.

“A. Why, Mr. Wood gave the orders. * * *

“Q. I ask you to state to the jury what Mr. Wood did about building the curbing.

“A. Well, now, I’ll tell you, Mr. Joslin, while that curbing wa§ being built, Mr. Charlie Cregg and I was laying tile at the time, below there.

“Q. Did you do any work on the curbing yourself ?

“A. I don’t think I did, I don’t think I helped on the curbing before he was killed. The sheeting was driven, the curbing wasn’t driven. While we were digging we’d call to the man handiest by to drive the sheeting down as we wanted it drove down. Cregg and Salzwedel and I all did this.

“Q. What men were working on the job there helped in any way towards constructing that sheeting and putting it in, at various parts of it ?

“A. Well, I saw Mr. Salzwedel working on it, and I saw Mr. Witt working on it. I saw several men around there to work. While Mr. Wood told us whenever we wanted the sheeting drove down to call a man to drive it down, keep the sheeting drove down. Well, different men would drive the sheeting down. Mr. Wood told Mr. Salzwedel and me and Mr. Cregg also that when we wanted that sheeting drove down, to call a man to drive it. I never heard Mr. Salzwedel give any orders to the men there of any kind except to drive the sheeting down. ‡ * í:

Q. Did you ever receive any directions from Mr. Wood about digging out for the tile ?

“A. Why, I couldn’t say as for that; we knew what our work was, and went right on with it.

Q. Yes. Did he ever give you any directions to keep that sheeting driven down to the subgrade ?

“‘A. Yes, sir.

‘ ‘ Q. Down to the bottom of the tile ?

“A. Well, I don’t know as that was mentioned, really, but he said that we should be careful and see that our sheeting was kept down. We did not drive this sheeting clear down to the bottom of the tile, if we did, we would have to have dug the whole ditch out.

Q. In order to drive one of those boards down, you had to take your shovel, as I understand it, and excavate it right underneath it ?

“A. Right underneath the board; yes, sir. Mr. Wood told us to keep the boards, the sheeting, well driven down. * * *

Q. Did you ever hear Mr. Salzwedel say anything about working in there, as to whether he was afraid or not ?

“A. Well, he told me he wasn’t afraid in there. * .* * When we wanted a board driven down we would call to the nearest man, to have it driven down. * * *

Q. Well, did he say to you, ‘Come on, all right, it is all safe ? ’

“A. Well, now, I couldn’t sayas he said, ‘all safe,’ but he says, ‘Come on, it is all right.’ * * *

‘ ‘ Q. Who would put in that shoring and curbing ?

“A. Well, I saw different men working on it.

Q. Did you see Mr. Salzwedel working on it?

“A. I saw Mr. Salzwedel working on it, Mr. Witt working on it.

Q. Would Mr. Salzwedel tell Mr. Witt what to do ?

“A. Mr. Salzwedel was about the only man that could talk with Mr. Witt; I didn’t work with him when they were putting it in.

Q. Well, didn’t you hear Mr. Salzwedel tell Mr. Witt and Mr. Cregg and Mr. Stegmiller what to do ?

“A. Well, I couldn’t swear .that I did, any more than when we wanted him to wait on us, Mr. Stegmiller. * * *

Q. Did you ever hear Mr. Salzwedel say to any man there about how to put that in, or where to put it, or when to put it in ?

“A. Why, I couldn’t say as for that.

Q. Will you swear that you didn’t ?

“A. How ?

Q. Will you swear that you did not hear him say anything about it ?

“A. Swear that I didn’t hear him ?

“Q. Yes.

“A. I wouldn’t swear one way or the other, because I don’t remember what — it has been so long ago, I don’t remember the conversation. * * *

Q. Yes, but Mr. Salzwedel was there all the time ?

“A. No, he wasn’t, not laying tile, he wasn’t ?

Q. No. Well, what was he doing when he wasn’t laying tile ?

“A. Well, he was building curbing.

Q. He was building curbing ?

“A. That is right.

“Q. He was building curbing ?

“A. Helped build curbing ahead; yes, sir.

“Q. Well, then, he was managing that part of it, wasn’t he?

“A. Well, I wasn’t there.

“Q. Well, you was there when he was doing that work, you say he wasn’t there all the time you were at work ?

“A. Well, so far as the managing part is concerned, building the curbing up above there, I don’t know who the boss carpenter was at that.

“Q. Well, you say that Mr. Salzwedel worked at it part of the time ?

“A. Yes, sir, he worked at the curbing, building the curbing.

“Q. Well, now, did he direct you, or did he direct Cregg, or Stegmiller, or Witt ?

“A. In building the curbing ?

“Q. Yes.

“A. Well, I don’t know as to that, I didn’t — I was digging out and laying tile while this curbing was being built.

“Q. Yes; well, you saw Salzwedel there at work?

“A. I saw Salzwedel.

“Mr. Westerman: Did you see or hear Mr. Salzwedel give any of these men any instructions as to what they should do ?

“A. Well, I couldn’t say now what the conversation was on the sewer, I don’t remember as to that.

“Q. No, but did you hear him give any instructions to any of these men ?

“A. Well, I couldn’t swear that I did.

“Q. And you couldn’t swear that he didn’t ?

“A. I couldn’t swear that he didn’t; no, sir.

“Q. You couldn’t say that he directed the constructing of that curbing and shoring, then ?

“A. I couldn’t say that he did; no, sir.

“Q. And you couldn’t say that he didn’t ?

“A. I couldn’t say that he didn’t.”

Thompson testified:

“I didn’t hear anybody give any directions for the building of the curbing at all. * * * I didn’t see Mr. Wood laboring at anything at the time that I worked there for Mr. Wood.

“Q. And what did you see or hear him do ?

“A. I didn’t hear him do anything. * * * I heard Wood give orders to the men that was working on the bank doing the shoveling. I never heard him give any orders to any one about how to construct the curbing, not to the men who were erecting the curbing. * * * I don’t know as I ever heard him give Mr. Salzwedel any directions. Don’t know as Mr. Salzwedel was any boss at all, in building the curbing, whatever.

“Q. Do I understand you correctly, that you worked in carrying these sheeting right around there where the curbing was being put up, and helped to put it up yourself ?

“A. I helped to carry the material, the plank and the sheeting.

“The Court: Now, did you ever help put up the curbing?

'A. Why, no; I didn’t say I helped to put up the curbing.

“Mr. Joslin: When you was carrying this sheeting who was you delivering the sheeting to, the men that-were putting it in, or did you help to put it in ?

“A. I was delivering the sheeting to the men that was building the curbing, Mr. Salzwedel, Mr. Gregg, and Mr. Bill Jones.”

The testimony of Jones, Johnson, and Thompson does not differ in substance from their former testimony, and does not support the plaintiff’s contention that Salzwedel did not have charge of the construction of the curbing. The testimony of Edmunds not only does not support plaintiff’s-contention, but is hostile to it. The fair inference from his testimony is that Salzwedel was in charge of the particular work of putting in the curbing. In all its material elements, the case is the same as when here before, and must be ruled by our former decision.

Judgment reversed, and no new trial granted.

Grant, O. J., and Moore, Carpenter, and McAl-VAY, JJ., concurred.  