83 Minn. 228 | Minn. | 1901
This is an action to recover damages for a personal injury sustained by the plaintiff while in the employ of the defendant on the alleged ground that the defendant was negligent in furnishing unsafe appliances for the work in which the plaintiff was engaged, and in failing to inspect them, and in failing to instruct him as to the danger of the place in which he was required to work. At the close of the plaintiff’s evidence the trial court directed a verdict for the defendant, and the plaintiff appealed from an order denying his motion for a new trial.
The evidence tended to establish these facts: The defendant, in October, 1896, was engaged in building a dam across the Nemadji river, in Wisconsin, upon which he employed a crew of some forty men, of whom the plaintiff was one; also Charles Sherman, who was the engineer on the pile driver, and directed the men when and where to work in the absence of the defendant. The plaintiff was principally employed in driving oxen and getting out timber in the woods for the dam. He was forty-two years old, and had worked for twenty-six years in logging in the woods, driving logs in the river, and as an explorer looking up and estimating timber in the woods, and was entirely familiar with the different kinds of trees when he saw them. After the work on the dam had been completed, and on the evening before the plaintiff was injured, Mr. Sherman, who is hereafter designated, for convenience, as the
Even if it be conceded that the foreman, in selecting the tree as a tackle post, was acting as a vice principal, it' is difficult to see
But we prefer to and do base our conclusion that the trial court correctly directed a verdict for the defendant upon the ground that the foreman, upon the special facts of this case, was not a vice principal, but a fellow servant, in selecting the tree, and in directing and assisting in the loading of the hammer. The tree selected and used as a tackle post was not an instrumentality or appliance furnished by the defendant to the plaintiff for the performance of his work. On the contrary, it was a mere temporary instrumentality provided by the defendant’s servants themselves during the progress of the work, and as a part of the details thereof, and belongs to the same class of appliances as scaffolding and curbing constructed during the progress of the work, which are invariably held not to be appliances furnished by the master. Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020; Bergquist v. City of Minneapolis, 42 Minn. 471, 44 N. W. 530; Marsh v. Herman, 47 Minn. 537, 50 N. W. 611; Soutar v. Minneapolis I. Ele. Co., 68 Minn. 18, 70 N. W. 796; Oelschlegel v. Chicago G. W. Ry. Co., 73 Minn. 327, 76 N. W. 56, 409. In this respect the case is clearly distinguishable from the cases cited'and relied upon by the plaintiff, where the thing which occasioned the injury was a part of the permanent appliances of the master; such as a telegraph pole, or derrick, or pile driver, or a car. Kelly v. Erie Tel. & Tel. Co., 34 Minn. 321, 25 N. W. 706; Steen v. St. Paul & D. R. Co., 37 Minn. 310, 34 N. W. 113; Anderson v. Minnesota & N. W. R. Co., 39 Minn. 523, 41 N. W. 104; Sather v. Ness, 44 Minn. 443, 46 N. W. 909.
This ease is also to be distinguished from those where the character of the work is such that the master owes to the servant the duty of its supervision, and the servant is ordered by the foreman in charge from one part of the work to another, which he knows or ought to know is dangerous, but the servant is ignorant of the peril to which he is exposed by obeying the order. The cases of Carlson v. N. W. Tel. E. Co., 63 Minn. 428, 65 N. W. 914; Abel v.
Order affirmed.