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amendments of 1901 did not introduce any new subject of taxation, but merely fixed a uniform period within which the obligation should arise of paying the tax that was levied under the act of 1898, namely, a tax upon a beneficial interest that had already vested in possession and enjoyment; and that when it is necessary to decide what taxes are referred to in the acts of April 12, 1902, and June 27, 1902, the distinction must be borne in mind between an interest which had, and an interest which had not, become vested in possession and enjoyment at the dates mentioned in these two acts. No interest is taxed until it vests in possession and enjoyment.
In view of the opinion of the Supreme Court thus imperfectly summarized, it would be superfluous to discuss further the will of Bernard Shanley. As we think, the case before us cannot be distinguished from Vanderbilt v. Eidman, and therefore, upon the authority of that decision, it must be held that the interests of Bernard Shanley's sons under the seventh section of his will were not taxable. It may be added, however, that the method of calculation adopted by the collector was also objectionable because it reduced the principal of the estate, and thus diminished the income of the widow, in effect taxing her without any authority for such taxation, and that the value of the residuary estate bequeathed to the sons was estimated by the use of mortuary tables, for which use we fail to find any authority in the statute. Still further, if the use of mortuary tables were permissible in a proper case, they should not have been used here, for one of the contingencies contemplated by the will was the remarriage of the widow, and, while the probability of death may perhaps be approximately estimated from the recorded experience of insurance companies, there are as yet no statistics available from which the probability of remarriage may even be conjectured. Dunbar v. Dunbar, 190 U. S. 345, 23 Sup. Ct. 757, 47 L. Ed. 1084.
That interest was properly allowed upon the principal of the tax, since payment had been illegally exacted from the defendant in error, we have no doubt. Erskine v. Van Arsdale, 15 Wall. 75, 21 L. Ed. 63; Redfield v. Iron Co., 110 U. S. 174, 3 Sup. Ct. 570, 28 L. Ed. 109. The judgment of the Circuit Court is accordingly affirmed.
BALTIMORE & O. R. CO. v. BROWN.
(Circuit Court of Appeals, Third Circuit. May 28, 1906.)
1. MASTER AND SERVANT-FELLOW SERVANTS-FOREMEN AND WORKMEN. A mere foreman or gang boss is a fellow servant of those working with or under him and for his defaults by which a fellow servant is injured the master is not responsible, unless the duty as to which the default is made is an absolute duty of the master the performance of which has been delegated to such foreman.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 433, 449.
Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]
2. SAME-INJURY OF SERVANT-NEGLIGENCE OF FELLOW SERVANT.
Defendant railroad company owned barges on which cars were transported into a dock to be loaded from a pier alongside. There were two parallel tracks on the barge and between them a platform at about the height of the car doors used in loading the cars. There was a space a foot wide between the platform and the cars and iron plates were provided to be placed across such space from the car doors to the platform. Plaintiff was a workman employed by defendant with others in loading cars on such a barge under direction of a foreman. Having occasion to move one of the cars the foreman directed that the plate be not replaced and plaintiff while assisting to roll a cask from such car to the platform in obedience to an order of the foreman, without knowledge or notice that the plate was not in place stepped backward into the opening and fell and was injured. Held, that defendant having provided proper appliances to make the work safe was not under the personal duty to see that such appliances were replaced after being temporarily removed by the workmen and that plaintiff's injury was due to the negligence of the foreman who was his fellow servant for which defendant was not liable but which was one of the assumed risks of the employment.
In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.
For opinion below, see 142 Fed. 911.
Wm. B. Linn, for plaintiff in error.
Thomas Raeburn White, for defendant in error.
Before DALLAS and GRAY, Circuit Judges, and LANNING, District Judge.
GRAY, Circuit Judge. An action in trespass was brought in the court below by the defendant in error, hereinafter called the plaintiff, against the plaintiff in error, hereinafter called the defendant, to recover damages for personal injuries sustained by plaintiff while employed by defendant. by defendant. The plaintiff had a verdict, upon which judgment was entered in his favor in the court below, and the writ of error sued out by defendant brings the case into this court. The evidence set forth in the record shows that the defendant had twelve freight stations in Philadelphia, all under the supervision of a general freight agent, who was represented at each station by an assistant freight agent. One of these freight stations was a certain pier No. 12 in the Delaware river, to which freight cars of the defendant company were brought upon barges, which were moved in a dock alongside the pier, to be unloaded and loaded. One of these barges was so moved at the time of the accident complained of, and hogsheads of tobacco were being loaded from the pier into the cars on the barge. To accommodate the cars, there were two separate tracks, one on each side of the barge and parallel thereto. Between the tracks a platform ran lengthwise of the barge, six or eight feet wide, and at an elevation a little lower, or nearly even with the floors of the cars on each side. Between the cars and the edge of this elevated platform, there was an open space about 12 inches wide. For the purpose of facilitating the loading and unloading of heavy articles from or onto the platform, iron plates of sufficient length and width were provided by the defendant company to bridge the space between the door and the side of the car and the platform. At the time of the
accident, large casks or hogsheads of tobacco were being rolled from the pier on a gang plank into one of the cars on the track next to the pier, across the same and out of the door on the opposite side of the car onto the platform, to be loaded into a car on the other track. This was being done by four or five men employed by defendant, one of whom (Mulch) acted as gang boss or foreman, and directed the work. One of the hogsheads had been thus rolled from the pier through the car nearest thereto, onto and across the platform, to the car to be loaded, one of the iron plates provided for that purpose being used to bridge the open space betwen the car door and the platform. In the movement of this hogshead, the gang boss assisted, standing with another man in front of the hogshead to steady it, as it was rolled across the floor of the car and out the opposite door onto the platform. It then appearing that the doors of the car through which the hogsheads were to be rolled, were not conveniently situated with reference either to the pier or to the car to be loaded on the other side of the platform, the cars next the pier were pushed ahead some feet, and the iron plates from the doors to the platform were necessarily displaced. Mulch then summoned the plaintiff, who had been working at some other place, to take his (Mulch's) place in loading these hogsheads into the cars on the barge. It seems that it was more convenient to so load them when the tide was high, and as it was then falling, Mulch told one of the men engaged in the work, to never mind replacing the iron plates from the door of the car to the platform, as he "wanted to rush the hogsheads in." By his direction, the plaintiff assisted in moving the next hogshead from the pier, and when it was being rolled across the first car, by like direction, he took the place Mulch had before occupied, in front of the hogshead, between two other men, walking backward toward the door next the platform, and stepped out, expecting, as he said, the plate to be in its usual position at the door. Owing to its absence, he stepped into the hole or space between the car and the platform, and fell, the hogshead rolling out over him, whereby he suffered the injuries complained of. Neither the general freight agent, nor the assistant freight agent in charge of this particular station were present, or had in any way interfered with the placing of the plates at the doors of the cars.
The plaintiff's contention as to the liability of the defendant, is based upon the following averments in the declaration:
"The defendant, its superintendent, or vice principal, with full knowledge of the danger and without informing the plaintiff of it, specifically ordered the plaintiff in front of the cask and that he should steady it as it was being rolled into the car. In pursuance of the company's orders, the plaintiff, believing he was in perfect safety, in order to steady the cask, was forced to step backward, and in doing so fell into a hole on the barge, unknown to him at the time, but known to the defendant and vice principal, whose duty it was to have the hole covered or to inform the plaintiff of the danger."
It is in evidence, and not disputed, that the person responsible for not replacing the plates after the movement of the cars, was Mulch, the gang boss or foreman who had that authority and control that is necessarily reposed in one of several men engaged in such work
as was here being performed. He was in no sense such a vice principal or representative of the defendant, as to take him out of the class of fellow servants of the plaintiff, or to impose liability upon the defendant, even if the situation had been such as to attach liability to the interference of a vice principal. If plaintiff has a right to recover at all, it must be upon the ground that the injuries of which he complains resulted from the neglect of the duty of the master to exercise reasonable care in providing a safe place in which and safe tools and appliances with which his servant is to work, and also due care in the selection of those with whom he is to work. This duty is an absolute duty, sometimes called a personal duty of the master, and cannot be delegated by him so as to avoid liability for its nonperformance. The one who may be charged for the time being with the performance of this duty, performs it for and in place of the master, and no matter what his grade of service may be, whether highest or lowest, his default is the default of the master.
In cases like the present, it is essential, then, to inquire whether the negligence averred pertains to such an absolute or personal duty of the master. There is no suggestion that there had been any lack of care in the selection and employment of Mulch and the other fellow servants of plaintiff. The physical situation disclosed by the testimony was not more than ordinarily dangerous. The elevated platform that ran between the tracks on the barge for the convenient loading and unloading of cars across the same, was faultless in structure, so far as the testimony shows, and at no more than the proper distance (12 inches) from these tracks. It can hardly be said that, even without plates or gang boards at all, it would have been an unsafe place in which to work, so far as the ingress and egress to and from the car by the workmen was concerned, the open space between the platform and the car being obvious to any one with the ordinary faculties of perception. These plates were presumably furnished to facilitate the movement of large and heavy articles, like these hogsheads, from the car to the platform, as also for the convenience and safety of those engaged in performing such work. At all events, the plates were provided by the defendant, and their regular use for the purposes mentioned established. So far as such provision was a duty, it was undeniably performed, and we cannot say that that duty extended so far as to require of the defendant that it should be responsible for the placement of the plates, whenever the movement of such articles as these hogsheads might require it. They were not permanent appliances affixed either to the car or the platform. They were necessarily movable and casual appliances, and required to be placed and adjusted for use as occasion demanded. They were necessarily displaced each time the cars were moved, to be replaced by those engaged in or in charge of the work when again required. Proper appliances, such as these plates, having been provided by the master, his personal duty, if any, was performed. The placing, repiacing, and adjustment necessary for their use, belonged to those who were working for the time being, and could not, from the nature of things, be supervised and controlled in each particular instance by
the defendant. Mulch, with the other workmen of the gang, including the plaintiff, were fellow workmen employed by the same master, working together under a common control, and to the same end; that is, in this instance, the removal of these hogsheads from the pier to the car into which they were to be loaded. It is well settled in reason and by authority, that a mere foreman or gang boss is a fellow servant of those working with or under him, and for his defaults, by which a fellow servant is injured, the master is not responsible, unless the duty as to which default is made is an absolute duty of the master, the performance of which has been delegated to such servant. But when that is not the case, the negligence of such a person is one of the ordinary risks of the employment undertaken by every one who enters the service of another. The master's negligence, on the contrary, is never one of the risks so undertaken. From what has been said, it must be apparent, that Mulch's admitted negligence, in directing that the plate be not replaced after the moving of the car, and in failing to inform plaintiff of the fact that it had not been replaced, was the negligence of a fellow servant, and not the negligence of the defendant.
This case, upon its undisputed facts, is so far within the line laid down in a series of decisions subsequent to the Ross Case, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787, that it is hardly necessary to do more than refer to them. These decisions have illuminated the whole subject of master and servant in the respect we are now considering it, and have settled the principles upon which the liability of the master, where the allegation is that he has failed in the performance of any phase of the absolute duties above referred to, can be predicated. It is the character of the duty, rather than the grade of the servant or employé whose negligence of it causes the injury, that must determine the liability of the master. Did the negligence in question pertain to an absolute or personal duty imposed by law upon the master? If it did, no delegation of that duty to another, in any grade of his service, can relieve the master's liability for nonperformance of that duty. There is sometimes difficulty in ascertaining whether the negligence does or not pertain to such absolute duty of the master. We think, however, there is no such difficulty in this case. The undisputed evidence shows no want of ordinary care in the selection and employment of Mulch, or in making the barge platform and pier reasonably safe places on which to work, and the provision of the plates to bridge the space between the platform and the cars, satisfy any reasonable demands upon the defendant for safe appliances in connection with the work to be done. Under these circumstances, as we have said, the negligence of the foreman (Mulch) in not replacing the plate after the car was moved, was the negligence of a fellow servant, the risk of which was of course assumed by the plaintiff, when he entered into the employment of the defendant. Where tools or appliances that are to be used only as occasion requires, are furnished by the master, their negligent use by one servant resulting in injury to another servant, cannot be imputed to the master.
In the case of Alaska Mining Co. v. Whelan, 168 U. S. 86, 18