63 Minn. 428 | Minn. | 1896
Lead Opinion
This is an action to recover damages for personal injuries sustained by the plaintiff by reason of the defendant’s alleged negligence. Verdict for the plaintiff, and the defendant appealed from an order denying its motion for a new trial.
The case comes here upon a bill of exceptions, which does not purport to contain the evidence, but which does certify that upon the trial testimony was introduced tending to prove all of the allegations of the complaint and answer respectively. The bill of exceptions also contains a statement of certain facts which it certifies there was testimony to establish, if believed by the jury. From this statement, the allegations of the complaint, and the verdict, the following facts must be taken as established:
The plaintiff, on August 3, 1893, with some 80 other laborers- employed by the defendant, a corporation, was engaged in the work of excavating a ditch along Nicollet avenue, in the city of Minneapolis, in which telephone wires were to be laid. The work of making this ditch was in the charge of a foreman of the name of Purvey, who had control of the work and of all of the men engaged thereon, with power to employ and discharge them, and to direct them what to do and where to work. He was the supreme authority there present, and all of the men were subject to his orders in every particular, and no one present had any authority over him. The plaintiff had been employed on the work for about three weeks before the accident, and was not assigned to any particular portion of the work. The soil through which the ditch was excavated consisted of sand, with a top layer, about a foot in depth, of tough, hard material, which had been filled in over the natural surface. The excavation had been made and the ditch completed along several blocks without any curbing or artificial support of its sides, until, on the day the plaintiff was injured, it reached the street-railway track, when it became necessary to increase its depth some three or four feet. At this point of the work, and on the morning of the day named, Purvey, the foreman, observed that a crack in the soil existed, extending from the ditch near the railway track 16 feet, describing a semicircle and ending near the ditch, the most distant part of the crack being 4 feet therefrom. Thereupon it became necessary, in order to prevent the side or wall of the ditch caving down, to put in curbing
The plaintiff, while the curbing was being constructed, was at work in another part of the ditch, and took no part therein, and had no knowledge of the crack in the soil at the point where the curbing was placed. When it was completed he was ordered by the foreman to go into the ditch where the curbing was placed, and clean out the loose sand at the bottom, and, ignorant of the true character of the curbing, and not knowing that the place was an unsafe one, he obeyed the order, and commenced the work as directed, when a piece of earth constituting the side of the ditch inside of the crack mentioned settled down by a sliding movement under the curbing into the bottom of the ditch, catching the plaintiff, and breaking his foot and ankle. The foreman did not caution or advise the plaintiff as to the unsafe condition of the ditch at the place he was ordered into, but the plaintiff saw the curbing, and knew that it was placed there to prevent the ditch from caving in.
There were no exceptions taken upon the trial of the action save those relating to the giving and refusing to give certain instructions to the jury by the trial court, and the assignments of error are limited to such exceptions.
1. The defendant’s counsel, by their assignments of error 2 and 3, raise and discuss the question whether, upon the facts as they appear from the record, the plaintiff must be held to have assumed the risk of working in the ditch in the condition in which it was.
In performing the duties required of him, the plaintiff was bound to take notice of the ordinary operation-of familiar natural laws,
2. Assignments of error 1, 4, 5, 6,- 9, and 10 present the question whether the foreman, Purvey, in ordering the plaintiff into-that part of the ditch where the curbing was placed, acted as the representative of the defendant, and in its place, or as a fellow-servant of the plaintiff.
The trial court instructed the jury that in the work of excavating and constructing the ditch, including the curbing, the foreman was the fellow servant of the plaintiff, and that the defendant was not liable for any neglect of the foreman in this respect.. But the jury were further instructed that it was the duty of the defendant to use ordinary care to protect the plaintiff from unusual risk, and that whatever the foreman did or failed to do in-this respect was the act or omission of the defendant, and, if he failed to exercise such care, his negligence in the premises was that of the defendant; that unless the foreman knew there was-unusual danger to the plaintiff in working in the place assigned him, — something which would not occur in the ordinary course-of digging ditches, — the plaintiff could not recover; but, if the-foreman did know, when he ordered the plaintiff into the ditch, that its walls were unsafe, dangerous, and liable to cave in and injure the plaintiff, and did not warn him, the defendant would be liable. These instructions were substantially repeated one or-
The defendant’s first contention is that the court erred in giving the instructions, because the record fails to show that the foreman knew of the unsafe condition of the ditch, or that the order to work in the ditch at the point where the accident occurred was the proximate cause of the plaintiff’s injury. If it be true that the evidence on the trial did not establish these facts, the question cannot be here reviewed, for two reasons: The record does not contain the evidence, and the exceptions do not raise any question as to the sufficiency of the evidence. It is manifest on the face of the exceptions that they were intended to and did raise only the question as to the correctness of the instruction.that the foreman in giving the order was acting as a vice principal. That it was not correct in this particular is the defendant’s second and principal contention.
This brings us to the important, and practically the only real, question presented by the record for our decision, viz.: Was the foreman discharging a duty which rested upon the defendant as master, when, under the particular circumstances and conditions of this case, he ordered the plaintiff into the ditch at the point where the accident occurred? If he was, the instructions of the ■court excepted to were correct; if he was not, the giving of them was reversible error. We answer the question in the affirmative.
The authorities upon the question when and under what circumstances an employé becomes, as to his fellow servants in a common employment, the representative of the master, are involved in a bewildering maze of inconsistency and injustice. In the case of Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020, this court had the question under consideration, and as a result of a review of its previous decisions, and upon principle, reached the
While the employé assumes for himself the ordinary and obvious dangers of the work or business in which he engages, yet the master is bound to use ordinary'care-to warn and protect the employé from unusual and unnecessary dangers and risks. If the nature and magnitude of the master’s work, whether it be that of construction or otherwise, and the number of men engaged in its execution, are such that the exercise of ordinary care for the safety and protection of the workmen from unusual and unnecessary dangers requires that they be given reasonable orders, and that they be not ordered from one part of the work to another, without warning, into places of unusual danger and risks, which are not obvious to the
In the present case the foreman, Purvey, was the supreme authority in charge of the work, with power to give all orders directing the places where the employés should work, and all reasonable and necessary orders to secure their safety, which orders the plaintiff was bound to obey and did obey, and he was injured by reason of the negligence of the foreman in knowingly ordering Mm into a place of unusual danger without warning him of the risks incurred in obeying the order. In giving such order, under the special facts of this case, the foreman represented the master, the defendant.
Order affirmed. •
Concurrence Opinion
I concur in the result arrived at in the foregoing opinion, but not in the reasons given for that result.
The majority seem to approve of that line of decisions which hold that the master is only liable for his negligence in failing to provide a competent foreman, safe instrumentalities, and a safe place in which to work; and that, having done this, his duty to the inferior servant is performed, and he is not liable for the negligence of the foreman resulting in injury to such inferior servant. But while they seem to approve of this line of decisions, they do not follow them, for under these decisions the defendant cannot be held liable in such a case as this for failing to furnish the plaintiff a safe place in which to work. That rule does not apply to a, place rendered unsafe solely by the progress of the very work in which the servant is engaged. Olson v. McMullen, 34 Minn. 94, 24 N. W. 318; Pederson v. City of Rushford, 41 Minn. 289, 42 N. W. 1063; Loughlin v. State, 105 N. Y. 159, 11 N. E. 371. No class of cases hold it to be the absolute duty of the master to furnish a safe place for his servant to work in, when the place is made dangerous, and its character is continually changing, by reason of the progress of the work in which the servant is engaged. There
The question is: As respects the particular danger, is the foreman better able to take care of the inferior servant than the inferior servant is to take care of himself, and how much better? If there is substantial disparity between the foreman and the inferior servant in this respect, then the foreman is a vice principal. For the test by which to determine when a foreman having authority to direct and oversee the inferior servants under him is as to them a vice principal, I still adhere to the principles laid down in my dissenting opinion in Blomquist v. Railway Co., 60 Minn. 426, 430, 62 N. W. 818, 821, where I have considered the question at some length. I am of the opinion that it depends on the amount of actual disparity between the foreman and the inferior servant injured, — disparity in respect to the particular danger by reason of exposure to which he was injured. In this case it would be disparity of knowledge as to the existence of the semicircular crack in the ground. Disparity of knowledge exists where the foreman has or should have knowledge which the inferior servant neither has nor can be expected to have, the want of which knowledge caused or contributed to his injury.
The bill of exceptions shows that such disparity did exist. It is stated that there is evidence “sufficient to show the following state of facts: * * On the morning of the day the plaintiff was injured, the foreman of the crew, Mr. Purvey, observed that a crack in the
The foreman had knowledge of the existence of the danger by reason of exposure to which the plaintiff was injured, and the plaintiff neither had, nor could be expected to have, any knowledge of the same. Then I am of the opinion that as to this danger the foreman was a vice principal, for whose negligence in failing to,
The jury should find, in the first place, whether or not the disparity existed which would constitute the foreman a vice principal as to the particular danger; and if it did exist, then, in the next place, they should find whether he was negligent in discharging his duty as such vice principal. However, the judge did not leave it to the jury to determine as a question of fact whether or not the foreman was such a vice principal, but charged them, as a question of law, that he was. But the bill of exceptions does not state that there was any evidence which in any manner contradicts the facts above recited. If there was no such evidence, then it conclusively appears that such disparity of knowledge did exist, and that, therefore, the foreman was a vice principal. Then it was not error to charge, as a question of law, that, as respects this danger, the foreman was a vice principal for whose negligence the defendant was liable.
In this respect this case is similar to the cases of Little Miami R. Co. v. Stevens, 20 Ohio, 415, and Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184. In those cases, as in this, the disparity of knowledge was, on the evidence, so clear and conclusive, that the court had a right, as a question of law, to charge that the foreman was, as respects the particular danger, a vice principal. In the Stevens Case and in the Ross Case the conductor of the train received information of the movements of another train, of which the engineer under him had no knowledge. The conductor negligently failed to communicate this information to the engineer, or use it for his protection, by reason of which there was a collision, and the engineer was injured. In my dissenting opinion in the Blomquist Case I refer to these cases, and say:
The Blomquist Case was not such a case. There it was a question of disparity of skill, and whether or not such disparity existed was neither undisputed nor clear and conclusive; so that, in my opinion, the question of whether the foreman was a vice principal was not for the court, but a question of fact for the jury under proper instructions. Such would be the disparity here as respects defects in the curbing. The inferior servant here could see the curbing, and examine its construction, as well as the foreman; but whether he had or should have had skill enough to know and appreciate that it was defective and insufficient was not clear or conclusive from the evidence, and was a question of fact for the jury. But this question is not before us, as the judge charged the jury as follows: “I simply say to you that in the placing of these braces there Purvey did not act as the representative of the- defendant, but was a fellow workman.” The court further charged the jury: “I say to you, if he knew the place was a dangerous place at the time he ordered plaintiff into said ditch, and that said walls were unsafe, dangerous, and liable to cave in and injure plaintiff, — if Purvey knew this -fact, he acting for the defendant,— the defendant would be responsible for whatever he may have ■done.” The question before us is whether this latter part of the charge is correct, and, on the evidence, it is my opinion that it is.
Since the above was written, I have read the opinion of Mr. Justice MITCHELL in this case, in which he condemns my position as a dangerous novelty. It is evident from what he says that its novelty has made it a matter of so much suspicion to him that he has given it but the most superficial examination. He seems to think that I have seized upon the mere fact that the foreman happened to know that the curbing was unsafe as the only reason why
My brother MITCHELL persists in still further misunderstanding my position, and in claiming that I propose to make the master liable for the negligent acts and omissions of the foreman where he owes no duty as foreman to the' inferior servant. It may well happen that an inferior servant is' injured by want of knowledge which the foreman happens to have. So might he be injured by the want of knowledge which another inferior servant happens to have. The question is, is it knowledge which the foreman, as such, should have, and which the inferior servant injured cannot be expected to have? In the Blomquist Case I applied this principle to every type of case found in the books to which, if sound, it should be applicable, and found no inherent difficulties in its practicable application. From the discussion of these principles in connection with those cases, no one ought to be misled into supposing that I
60 Minn., at page 434, 62 N. W., at page 822.
60 Minn. at page 433, 62 N. W. at page 822.
Concurrence Opinion
(concurring). My only excuse for adding anything to what has been so well said by the CHIEF JUSTICE is that if, as some suppose, this court has shifted ground, and departed from its former rulings, or if, as is suggested, there is any doubt as to the guiding principles adopted by the court, it is due to the profession that it be made as clear as possible what position the court occupies. It is needless to say that the doctrine of “fellow servant,” and particularly that phase of it presented by this case, to wit, when a superior employé bears to inferior employés under him the relation of vice principal and when that of fellow servant, is one of the most difficult questions in the law.
The principle which this court has always announced as the test is that it is not the mere rank or grade of the superior employé, but the nature of the duty or service which he was performing,
I am not able to concur in the views of Justice CANTY that the test is the parity or disparity of skill or knowledge between the superior and the inferior employés. Aside from its being a novelty in the law, wMch is always dangerous, I do not think it rests on any sound principle. The parity or disparity of skill or knowledge may be very material upon the questions of negligence and contributory negligence, and I can see how the degree of skill or knowledge required for the performance of a particular duty may, in. some cases, have an important bearing upon the question whether that duty was an absolute one of the master or the mere act of a fellow servant; but I fail to see how it is at all controlling as determinative of the question whether, in performing a given act, the superior employé did or did not represent the master. Eeduced to a concrete form, and applied to the facts of this case, the proposition seems to be about this: As the foreman knew that the curbing was unsafe, therefore in giving the order to plaintiff he was a vice principal, but if he had not* known that the curbing was unsafe, then the order would have been merely the act of a fellow servant.
Dissenting Opinion
(dissenting). I think the case should be governed by that of Loughlin v. State, 105 N. Y. 159, 11 N. E. 371, and therefore dissent.