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DISTRICT OF COLUMBIA V. MCELLIGOTT, 117 U. S. 621 (1886)

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U.S. Supreme Court

District of Columbia v. McElligott, 117 U.S. 621 (1886)

District of Columbia v. McElligott

Argued March 4, 1886

Decided March 29, 1886

117 U.S. 621

Syllabus

A supervisor of county roads in the District of Columbia was repairing them with a force of laborers, one of whom was at work on a bank of gravel. There was evidence tending to show that he discovered that the bank was in an unsafe condition, and asked the supervisor for a man to watch it, and received assurance that such assistance would be given, and that it was not given. The laborer continued to work there for half a day, when the bank fell upon, and seriously injured him. He brought suit against the District to recover damages for the injury. On the trial, it was not alleged nor proved that the supervisor was incompetent. The court, after instructing the jury that the negligence of the supervisor was one of the risks which the laborer took upon himself, and that the District was not liable unless he was incompetent and such incompetency was known or ought to have been known to it, added further that if the jury found that the laborer notified the supervisor of the dangerous condition of the bank, he would be relieved from the imputation of negligence during the time necessary to provide a man to watch it.

Held: chanroblesvirtualawlibrary

Page 117 U. S. 622

(1) That the latter instruction was inconsistent with the former, and calculated to mislead the jury.

(2) That it was the duty of the laborer, having knowledge of the dangerous condition of the bank, to exercise diligence and care in protecting himself from harm, without regard to any assurances which he might have received from the supervisor that the assistance he had asked for would be given.

Hough v. Railway Company, 100 U. S. 213, explained.

Whether the District of Columbia is in every case exempt from liability for the negligence of its supervisor of roads resulting in personal injury to those who labor under his direction on public work is not decided.

Whether a supervisor of public roads and a laborer employed under him on the roads are fellow servants within the meaning of the general rule that the common employer is not responsible to one employee for injuries caused by the negligence of a co-employee in the same branch of service is not decided.

The declaration in this case was as follows:

"The plaintiff sues the defendant, a corporation duly organized in pursuance of law, for money due and payable to the plaintiff by the defendant, for that the plaintiff was employed as a laborer by the defendant to do certain work for the defendant, to-wit, digging gravel from a gravel bank and loading certain carts with the same; that the defendant well knew that in doing said work, it was necessary to provide a sufficient number of men to enable those engaged as laborers on said work to observe the bank from which they were digging to prevent the untimely caving in thereof and the falling of gravel on them, and the said defendant also well knew that it was customary and necessary to have a person to watch said bank, and to give timely warning to those laboring under the same to enable them to escape from the said bank when a portion or the whole of the same was about to fall, yet the said defendant neglected, and although requested by the plaintiff on the 12th day of June, 1878, in the District of Columbia, did not provide a sufficient number of laborers to enable this plaintiff, who was then and there employed by the defendant and laboring in its service in digging gravel from a high gravel bank and loading the said gravel into carts, to observe the said bank, and also, although the said custom and necessity was well known to the defendant, through the negligence

Page 117 U. S. 623

and default of the defendant, no person at the said time and place was provided to watch the said bank and to give timely notice to the plaintiff in order that he might escape when a portion of said bank was about to fall. By reason of the premises, a large portion of said gravel bank at the time and place aforesaid fell upon this plaintiff, and thereby the plaintiff was thrown to the ground, his leg broken, his skull fractured, and he was permanently injured and crippled, and permanently rendered unfit for work, and was greatly bruised and injured, and incurred expense for medical attendance, to-wit, the sum of $500, and was and is deprived of divers gains and profits, and was and is hindered from attending to his necessary and lawful business, to the great damage of the plaintiff in the sum of twenty thousand dollars (20,000), and therefore he brings his suit."

Plea: general issue. Judgment below for plaintiff, which was sustained

in the General Term. Defendant below sued out this writ of error. The rulings of the court below and other facts which make the case are stated in the opinion of the Court. chanroblesvirtualawlibrary

Page 117 U. S. 624





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