128 Minn. 178 | Minn. | 1915
1. Defendant coal company operates a coal dock at Duluth. Coal is unloaded from vessels to the dock by means of hoisting rigs. The one of these with which we.are concerned is a movable steel structure about 10 feet high and 350 feet long. The essential features of this rig are as follows: A carriage 8 feet long runs on a track the whole length of the rig at a level of 30 feet or more above the floor of the dock. From this carriage is suspended the receptacle by means of which coal is unloaded. A walk runs alongside this carriage track for the full length of the rig. At a little lower level is a hoist house, 10 feet square, with a tin roof and walls of a single thickness of boards. The roof of the hoist house is on a level with the walk that runs alongside the carriage track. A ladder extends up the side of the hoist house; by this the employees ascend to the tin roof and thence proceed to the walk alongside the carriage track.
In the hoist house were located defendants Olson and Peterson, the hoisters, who operated from there the machinery that moves the rig and the carriage. Plaintiff was an oiler. It was his duty to oil the carriages and other mechanism of six rigs. The oiler determines when oiling is to be done. The work is not particularly dangerous as long as the machinery is not in motion, but a movement of the carriage while the oiler is upon it means almost certain death or serious injury. For this reason the regulations governing the hoisters are very explicit. After the oiler gives notice to the hoisters that he is going to oil, and goes out on the rig for that purpose, it is an invariable custom that the carriage must not be moved until the oiler gives a signal that he is through. It is the business of the hoisters to see to that. It is part of the duty for which they are hired, to keep the rig safe by keeping all machinery inoperative while the oiler is out upon the rig. Three sides of the hoist house' are of glass, so that the hoisters may look out upon the rig for that purpose.
The court instructed the jury that the negligence of Olson or of Peterson would-be considered the negligence of the company; that, if Olson alone was negligent, plaintiff could recover against Olson and the company, and if Peterson was also negligent, recovery might be had against him. The jury found against all .defendants.
There is little difficulty in sustaining the finding that Olson was negligent in not seeing to it that the carriage was not moved. We think there is also evidence to sustain a finding that Peterson knew plaintiff was going up to oil the carriage and that Peterson also was negligent. Peterson admitted that he was near enough to -hear, at the time of the conversation between plaintiff and Olson, and on cross-examination admitted “It might be I heard something, but I can’t remember.” The jury might find that he did hear what was said and also that he must have heard plaintiff walk up the ladder outside this thin wall of the shanty and across the tin roof above his head. He may have forgotten, but this in no measure lessened his duty.
While the evidence seems sufficient to establish this fact of knowledge on the part of Peterson, we do not deem this vital to the case. We think the evidence is substantially undisputed that, under such conditions as existed here, it was not customary or necessary for the oiler to notify more than one of the hoisters, and that the duty to protect him then devolved on the one so notified. Plaintiff, Olson and Peterson all testified unequivocally to this fact. Only one other witness testified on the subject, the company’s superintendent, Mr. Carr, who was called as an adverse witness by' plaintiff.
2. This brings us to the more difficult question, whether the company was answerable for the neglect of these men. As a rule a master is not bound to indemnify his servant for injuries caused by the negligence of a fellow servant in the same common employment. This familiar doctrine was first introduced in England in 1837, in Priestley v. Fowler, 3 M. & W. 1, where a butcher’s servant was held to have no cause of action against the master for the breaking down of a van, due to overloading by another servant with whom he was riding. The doctrine was first introduced in the United States in 1841, in Murray v. S. C. Railroad Co. 1 McMullan (S. C.) 385 (49), where plaintiff, a fireman, was injured by the derailment of an engine due to the negligence of the engineer whom plaintiff had selected as his associate, and whom plaintiff had warned of the danger. The cause is one of the first arising out of the conveyance of human beings by locomotives on railroads. In these cases some emphasis is laid upon the fact that the association of the employees afforded both opportunity and duty to protect themselves from the negligence of one another. In the next reported casp, however, Farwell v. Boston & W. R. R. Co. 4 Metc. (Mass.) 49, 60, 38 Am. Dec. 339, Shaw, C. J., makes it clear that “the master * * * is not exempt from liability, because the servant has better means of providing for his safety, * * * but because the im
In the tremendous number of fellow-servant cases that have followed there is conflict between two tendencies, the one a tendency to extend the general rule of nonliability applied, in these early cases, to the complex and dangerous conditions incident to the machinery and appliances of later times, and the other a tendency to increasingly make exceptions and place limitations upon the general doctrine, in order to conform the law to new and changed conditions. The result is the recognition of an increasing number of absolute duties of the master.
One of these absolute duties of the master is the duty to use reasonable care to provide a safe place to work. This duty is not violated where unsafety is caused solely by the acts of coservants in carrying out mere details of the work. 4 Labatt, Master & Servant, § 1531.
The master may adopt rules to facilitate the- carrying on of his business, and these rules may operate for the protection of the servants exposed to danger. The question then arises whether the enforcement of such rules is an absolute duty of the master.
3. It cannot be said that an employer owes to his employee an absolute duty to see that every rule of his business is observed. The obligation of the employer in respect to the supervision of mere details, is not rendered more extensive by the fact that he has systematized the execution of those details by adopting suitable rules. Such rules do not alter the character of the acts to which they relate. 4 Labatt, Master & Servant, § 1506. If, however, the office of the rule is to provide a method for the discharge of some nondelegable obligation, the duty of the employer to see that the rule is observed is absolute and nondelegable, for “the liability resting upon him for the proper performance of the * * * duty is not shifted by the adoption of rules or regulations providing for the performance of the act or duty by the agent of the master." Hankins v. New York L. & E. R. Co. 142 N. Y. 416, 37 N. E. 466, 26 L.R.A. 396, 40 Am. St. 616.
• These hoisters were not charged with the duty of giving plaintiff a warning before moving the machinery. Warning would have been of no- avail. The machinery must not move at all. They were charged with -the. duty of doing the one thing that would keep this
This holding is in line with many recent cases.
In Paauhau Sugar Plantation Co. v. Palapala, 127 Fed. 920, 62 C. C. A. 552, injury resulted from negligence of a winehman operating a crane in prematurely lowering a load of sugar. It was the winehman’s duty to lower it part way and then wait until the boatman signaled him to lower the sugar into the boat. The master was held liable for injury to the boatman due to lowering the load into the boat without signal. Hawley, J., said: “The responsibility of appellant for the negligence of the winehman is well settled.”
In Massy v. Milwaukee Ele. R. & L. Co. 143 Wis. 220, 126 N. W. 544, 40 L.R.A.(N.S.) 814, 139 Am. St. 1096, it was held that an employee charged with the duty of connecting and disconnecting an electrical current from wires is not a fellow servant of a lineman whose duty is to work on the wires, so as to relieve the master from liability for injury to the lineman by the negligence of the operator in turning current, contrary to instructions, onto a wire upon which the lineman was at work.
We hold that the hoisters were vice principals, and defendant company is liable for their negligence.
The jury assessed plaintiff’s damages at $11,000. The damages were not excessive. Plaintiff sustained a compound fracture of the upper part of the right thigh; the bones protruded and the muscles separated; there was also a comminuted fracture of the leg below the knee. There was much hemorrhage and a large amount of sloughing of the muscles. Infection set in, large pieces of muscle came out. The leg shortened two and one-half inches. Plaintiff’s suffering was intense, and for some time he was in a very critical condition. He will never be able to resume his former occupation or to do any heavy work. The leg has practically lost its usefulness. His earnings were from $60 to $90 a month, varying with the seasons of the year. The damages, though large, are not clearly excessive.
Order affirmed.