Allen v. Standard Box & Lumber Co.

96 P. 1109 | Or. | 1908

Lead Opinion

Opinion by

Mr. Chief Justice Bean.

1. The motions for nonsuit and for a directed verdict were properly overruled. They were grounded on the theory that the foreman was a fellow servant with the plaintiff. It is the positive duty of a master to furnish his servant with reasonably safe machinery, instrumentalities, and appliances to work with, and by the use of ordinary care and diligence in making repairs to keep them in a reasonably safe condition, and he is liable for the negligent performance of this duty, whether he undertake to perform it himself or intrust it to another (26 Cyc. 1186: 12 Am. & Eng. Enc. Law (2 ed.), 959), unless the defects are such as arise in the daily use of the appliances and which ought to be and are ordinarily remedied by the workman, and to repair which proper and suitable materials are supplied (Cregan v. Marston, 126 N. Y. 568: 27 N. E. 952: 22 Am. Rep. 854; Johnson v. Boston Towboat Co., 135 Mass. 209: 46 Am. Rep. 458).

2. If, therefore, the accident by which plaintiff was injured occurred because of the failure of the hook tender to “touch up” the point of the hooks with a file, it was the negligence of a fellow servant, for whose conduct defendant is not responsible; but if the point of the hooks had become so worn that they could not be so sharpened, and it was necessary to send them to a skilled mechanic, it was the duty of the defendant to do so, and as it delegated that duty to its foreman, it is liable for his negligence in the discharge thereof. Corcoran v. Holbrook, 59 N. Y. 517 (17 Am. Rep. 369). It was the duty of the defendant to exercise ordinary care to make such repairs to the hooks as could not be made by the workmen, as was necessary to render them in a safe condition so as not unnecessarily to endanger the life or limbs of its employees, and that duty it delegated to the foreman, Mullet, who for that purpose occupied its place, and for whose acts it is liable.

3. The first instruction complained of is erroneous. By it the jury'were told, in effect, that the plaintiff and other persons working in the mill of defendant and engaged in the general operation thereof at the time of the injury to plaintiff were fellow servants, for whose acts the defendant was not liable, provided they were drawing a compensation approximately the same, and one was not in authority over the other, thus making the question of fellow servant to depend upon the compensation and rank of the employees, and not upon the character of the act performed by them. Mast v. Kern, 34 Or. 247 (54 Pac. 950: 75 Am. St. Rep. 580).

4. There was evidence given by the defendant which it claimed tended to show that the accident occurred because of the negligence of the hook tender or of the operator of the crane. Both of these men were mere operatives, charged with the performance of no positive duty which the defendant owed to the plaintiff, and were therefore fellow servants, for whose negligence the defendant was not liable; and yet, under the instruction as given, the jury could not have so treated them, unless it found from the testimony that they were receiving approximately the same compensation, and one had no authority over the other — a matter wholly unimportant and upon which there was in fact no evidence whatever.

5. It is claimed by the plaintiff that no proper exception was saved to the objectionable part of the instruction, and reference is made to a transcript of the stenographer’s notes accompanying the bill of exceptions, in support of this position; but the court certifies that the instruction was duly excepted to, and this is conclusive here.

6. The other two instructions, we think, correctly stated the law.

7. The instructions requested by defendant were properly refused. The first one leaves the question of fellow servant to be determined by the jury, without any rule for their guidance.

8. As to the other, the evidence shows that the foreman of the mill promised to have the hooks repaired, and therefore the subsequent use of them by the operatives relying on such promise would not constitute a defense in this case.

From this view of the case, it follows that the judgment must be reversed, and a new trial ordered.

Reversed.

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Rehearing

Decided October 6, 1908.

On Petition for Rehearing.

[97 Pac. 555.]

Opinion by

Mr. Chief Justice Bean.

9. The statement in the opinion heretofore filed that; if the injury to plaintiff was due to the failure of the hook tender to touch up the points of the hooks with a file furnished him for that purpose, it was the negligence of a fellow servant, for whose conduct defendant is not responsible, should he be so qualified as to make it applicable only in case the defendant neither knew, nor ■in the exercise of reasonable care might have known, of the defect.

10. It is the duty of the master to exercise reasonablcare to provide his servant with reasonably safe appliances and instrumentalities to work with, and keep them in that condition, and from the time an instrumentality is, or by the exercise of reasonable diligence might have been, known to be defective, an absolute duty on the part of the master aris'es either to remedy the defect or cease to use the instrumentality, although the dangerous condition was originally due to the negligence of a mere servant. Therefore, if the defendant, through its representative, the foreman, knew, or in the exercise of reasonable care might have known, that the hooks were dull and liable to drop the timber, and thereafter permitted them to be used in that condition, the defense of common employment is not available. La Batt, Master and Servant, § 568.

Petition denied. Reversed : Rehearing Denied.

Decided December 15, 1908.

On Motion to Retax Costs.

[98 Pac. 509.]

Per Curiam :

Plaintiff recovered judgment in the court below, and defendant appealed. The judgment was reversed here, with costs. Defendant included in its cost bill an item of $71.10 for “transcribing testimony to incorporate in bill of exceptions.” This item was disallowed by the clerk, and it now moves to have the item taxed as a proper disbursement. '

11. We think the ruling of the clerk was correct. It was in accordance with a practice of long standing and the previous decisions of the court. Section 906, B. & C. Comp., provides that when shorthand notes have been taken in any case, as provided in the act authorizing the appointment of official reporters, if the court or either party to the suit or his attorney requests a transcript of the notes into longhand, the official reporter shall cause full and accurate typewritten transcripts to be made of the testimony, which shall be filed with the clerk of the court where such cause was tried for the use of the court or parties. The fees for making such transcript shall be paid forthwith by the party for whose benefit the same was ordered, and when paid shall be taxed as other costs in the case. .Under this section either party to a suit or action may, upon request, have the stenographer’s notes transcribed into longhand and filed in the court, and the cost thereof taxed in the court below as other costs in the case. When so filed, the transcript becomes a part of the record, and may be used in making up a bill of exceptions the same as any other part of the record; but there is no more reason why the costs of copying it or any part thereof for use in a bill of exceptions should be taxed in this court than the expenses of making the bill itself, or copying therein an exhibit, or other matter of record.' It is the duty of appellant to prepare for the signature of the trial judge, a bill of exceptions containing so much of the evidence as is necessary to explain the exceptions taken, and, whether the clerical work is done by counsel or some other person, it is no part of the disbursements on the appeal, and cannot be taxed here as such. It was so held by this court in Ferguson v. Byers, 40 Or. 468 (67 Pac. 1115: 69 Pac. 32) and in Kunz v. O. R. & N. Co. (no opinion filed).

The ruling of the clerk is therefore affirmed.

Motion Denied.