169 P. 932 | Idaho | 1917
Respondent was employed by appellant as a teamster. His duties consisted in hauling logs from the place where they were skidded to where they were placed in a chute, whereby they were conducted into Lake Coeur d’Alene preparatory to delivery at the sawmill. While as
Appellant contends that respondent was not acting within the scope of his employment, but was a volunteer, when injured. It is true respondent was employed as a teamster, or driver, and that immediately prior to the time he was injured he was on the top of his load helping the loaders, but there was evidence, contradicted, it is true, to show that it was the custom in appellant’s camp, and in similar camps, for the teamster, or driver, to .help the loaders load his truck in the manner in which respondent was engaged at the time of the accident.
The court instructed the jury that respondent could not recover if injured while performing work outside the scope of his employment, unless ordered so to do by the master, or unless such work was done with the master’s consent or acquiescence, and that if it was the custom for drivers to assist in top-loading, then appellant could not set up as a defense the fact that respondent was so engaged when injured. The jury must have found that it was a custom, acquiesced in by appellant, for the driver to assist in top-loading, and the
The instruction above mentioned clearly states the law. The scope of the servant’s duties is to be defined by what he was employed to perform and by what, with the knowledge and approval of his employer, he actually did perform. (Robert Sherer & Co. v. Industrial Accident Com. (Cal.), 166 Pac. 318; 26 Cyc. 1088; Dresser’s Emp. Liability, sec. 103; Rummell v. Dilworlh, 111 Pa. St. 343, 2 Atl. 355, 363; Arkadelphia L. Co. v. Henderson, 84 Ark. 382, 105 S. W. 882; Hugo, Schmeltzer & Co. v. Paiz (Tex. Civ.), 128 S. W. 912; Belton Oil Co. v. Duncan, 60 Tex. Civ. 257, 127 S. W. 884; Jellico Coal Min. Co. v. Woods, 154 Ky. 683, 159 S. W. 530; Marshall v. United Rys. Co. of St. Louis (Mo. App.), 184 S. W. 159; Heilig v. Southern Ry. Co., 152 N. C. 469, 67 S. E. 1009; Powhatan Lime Co. v. Whetzel’s Admx., 118 Va. 161, 86 S. E. 898; Big Five Tunnel O. R. & T. Co. v. Johnson, 44 Colo. 236, 99 Pac. 63; Union Pac. R. Co. v. Brereton, 218 Fed. 593, 134 C. C. A. 321.)
The trial court instructed the jury: “The duty is upon the defendant to furnish a reasonably safe place for the plaintiff to work and to keep such place reasonably safe. .... ” Appellant contends that this instruction is erroneous for the reason it intimates that appellant was absolutely the insurer of the safety of the place where respondent was working, whereas its duty was simply to use ordinary care in furnishing and maintaining a safe place. Respondent has cited many cases wherein such an instruction has been upheld, yet in none of them does it appear that it was assailed upon the same ground as in this case.
There can be no doubt that the true rule is, not that the master must furnish a reasonably safe place for the servant to work, but he must use ordinary care and diligence in furnishing a reasonably safe place. (Wiesner v. Bonners Ferry Lumber Co., 29 Ida. 526, 160 Pac. 647, L. R. A. 1917C, 328; Armour & Co. v. Russell, 144 Fed. 614, 75 C. C. A. 416, 6 L. R. A., N. S., 602; F. C. Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309; Lincoln St. Ry. Co. v. Cox, 48
In many cases it has been held that where the instruction complained of was given, followed by an instruction like that numbered 18 in this case, there was prejudicial error as the two instructions were contradictory and it was not possible to say which one the jury followed. (Armour & Co. v. Russell, supra; Chicago, B. & Q. R. Co. v. Oyster, supra; Hughley v. City of Wabasha, supra; Chicago & E. I. R. Co. v. Garner, supra; Peoria D. & E. Ry. Co. v. Hardwick, supra; Chicago, B. & Q. R. Co. v. Merckes, supra; Conway v. Illinois Cent. R. Co., supra; F. C. Austin Mfg. Co. v. Johnson, supra.)
We are not in accord with that conclusion. While the instruction complained of, standing, alone, was incomplete, and, for that reason, erroneous, it was not contradictory to or inconsistent with instruction numbered 18, and read therewith clearly states the law.
It cannot be said that the first portion of the above quotation contradicts what follows, but rather is qualified by it, so the instruction complained of is qualified by that numbered 18. All the instructions given in a ease must be read and considered together, and where, taken as a whole, they correctly stated the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by an isolated portion thereof. (State v. Curtis, 30 Ida. 537, 165 Pac. 999, and cases therein cited; Kelly v. Lemhi Irr. etc. Co., 30 Ida. 778, 168 Pac. 1076.)
It is appellant’s contention that the sawyers were fellow-servants of respondent. If this be true, judgment should be reversed, for the reason that the jury may have decided respondent was injured through the negligence of the sawyers in not giving the proper warning or in negligently felling timber in the direction of the skidway, and not through the negligence of appellant in directing respondent to work in a dangerous place without warning him of the danger. There is conflict in the evidence as to whether or not the sawyers gave sufficient warning before cutting the tree, but there was sufficient evidence to sustain the finding of the jury that the sawyers were negligent in this respect, if its verdict was based upon that theory.
Whether or not respondent and the sawyers were fellow-servants was. because of the disputed facts in this case, a
' The courts are not in harmony as to what is necessary to Establish the relation of fellow-servant, some holding that those are fellow-se.rvants who serve the same master, work under the same control and are engaged in the same general business. Having in mind the very reason for the adoption, by the courts, of the fellow-servant doctrine, we hold that
Witnesses testified that it was not customary in appellant’s camp, or in camps of like nature, for the sawyers and those hauling logs, or the loaders, to work in the same vicinity; that the sawyers felled the trees and cut them into sawlog lengths; after they had finished their work and left, swampers followed, whose duty it was to remove the brush and limbs, and make ready for the logs to be skidded; that the logs were then hauled to the skidways, where the loaders loaded them on the trucks. Assuming this testimony is true, and the jury had a right to proceed upon that theory, it appears that the usual duties of sawyers and teamsters are not of a nature to bring them into habitual association or into such relation that they can exercise an influence upon each other promotive of proper caution, and it further appears that the respondent and the sawyers were not, at the time of the injury, co-operating in the particular business in hand. Therefore, the jury was warranted in finding they were not fellow-servants, if it did so find.
Bespondent was asked, on direct examination:' “Q. You may state what the fact is as to whether or not you followed the doctor’s advice strictly in relation to that arm and the treatment of it. A. Yes, I did.” Appellant offered to prove that during the time Dr. Phinney was attending respondent he stated one morning that during the night before he dreamed he was falling out of bed and in trying to catch himself he hurt his arm and he thought he had thrown it out of place; that the doctor said it would be necessary to operate on the arm, but respondent refused to submit to an operation, and stated that if the doctor would take the
It is contended that the doctor who attended respondent was, in reality, hired by the appellant and that, because of this fact, the above provision does not apply. This contention is without merit. (40 Cyc. 2383.) Nor did respondent waive the privilege by testifying that he followed the physician’s advice. (Union Pac. R. Co. v. Thomas, 152 Fed. 365, 81 C. C. A. 491.) It is clear to us that the testimony sought to be elicited is within the spirit and purpose of the prohibition of sec. 5958. (Jones v. City of Caldwell, 23 Ida. 467, 130 Pac. 995.) This statute is identical with the California provision. In McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209, a decision of the supreme court of California, in construing- the statute of -that state, we find, quoting from the syllabus: “Under the statute forbidding a physician to be examined as to any information acquired in attending his patient, the acquisition of which is necessary in order to enable him to prescribe or act for the patient, all statements made by a patient to his physician, while the latter is attending the former in that capacity, for the purpose of determining his condition, are privileged, although they have nothing to do with the patient’s treatment, or the determination of his injuries, but relate to the way in which the injuries occurred.”
Appellant contends that the verdict was excessive. There was testimony to show that respondent’s arm was considerably shortened by reason of the accident; that it was partially paralyzed; that it is very doubtful if the defect can be
The judgment and order appealed from are affirmed. Costs awarded to respondent.