Consolidated Interstate-Callahan Mining Co. v. Witkouski
249 F. 833
| 9th Cir. | 1918
WOLVERTON, District Judge

(after stating the facts as above). In the end, the question of prime importance submitted to the jury was whether the defendant was careless and negligent in furnishing the deceased with reasonably safe instrumentalities and appliances with which to do the particular work in which he was engaged. The crucial inquiry revolves about the duty respecting the adjustment of the nut or screw for tightening or loosening the clutch-band. Was the duty a nondelegable one, for the master’s discharge for the safety Of the workmen, or was it one simply of detail, proper to be left to the workmen themselves, or, we may say, the hoistman, to perform? If the latter, then the act of the hoistman in allowing the bolt or screw to remain loose before attempting to lower the bucket was the act of a fellow servant with deceased, and plaintiffs could not recover. If it was a nondelegable duty of the master, and the leaving of the bolt loosened was the proximate cause of the accident, then the defendant *836would be liable, unless it used reasonable care and precaution in making the appliance safe for the men to proceed with their work. The question is so near the margin as to require great care and discrimination in its solution.

[1, 2] It is a doctrine so well settled that it needs but slight reference to authorities that it is the duty of an employer to furnish sufficient and safe materials, machinery, or other means by which service is to be performed, and to keep them in repair and order. The duty cannot .be delegated to a servant or other person so as to exempt the employer from liability for injuries caused to another servant by its omission. “Indeed,” says the Supreme Court in Northern Pacific R. Co. v. Herbert, 116 U. S. 642, 647, 6 Sup. Ct. 590, 593 [29 L. Ed. 755], “no duty required of him for the safety and protection of his servants can be transferred, so as to exonerate him from such liability.” Any attempt, whatever it may be, to delegate such a duty to a person in any rank or employment, is simply to make such person a vice principal. He discharges the master’s service, and cannot be reckoned as a fellow servant with the common employé. Nor does a servant undertake to incur the risks attendant upon the' use of defective machinery, or other instruments with which to do his work, unless reasonable care and precaution have been exercised by the master or principal in supplying such as are safe for the, purposes and use to which they are adapted.

[3] It has come to be the settled rule of law also, of the Supreme Court, that the test as to whether one servant is a fellow servant of another is not the particular rank he sustains to that other in the service, but the specific character of the act performed. Says the Supreme Court, in B. & O. Railroad v. Baugh, 149 U. S. 368, 387, 13 Sup. Ct. 914, 921 [37 L. Ed. 772] :

“If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master.”

And, referring to the cases of Hough v. Railway Company, 100 U. S. 213, 25 L. Ed. 612, and Northern Pacific Railroad v. Herbert, supra, further says:

“The liability was not made to depend in any manner upon the grade of service of a coemployd, but upon the character of the act itself, and a breach of the positive obligation of the master.”

See, also, Mast v. Kern, 34 Or. 247, 54 Pac. 950, 75 Am. St. Rep. 580, where the principle is ably discussed and approved in an opinion by Mr. Justice Bean. It is there affirmed that it is supported by the great weight of authority both in this country and in England. The case of Northern Pacific Railroad v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009, does not conflict with the authorities settling the rule. The question there discussed was respecting coservants engaged in different departments of the service.

[4, 5] Now, it being the duty of the master, the defendant herein, to furnish for the use of its employés a reasonably safe appliance, it may be inquired whether that duty extended to tightening the screw or clutch-bolt for properly adjusting tire clutch-band to the drum, so *837that the hoist could be safely operated. It is in evidence that Hughes, the master mechanic, inspected the machinery on the evening previous to the accident. That would be on the same night as the accident, which occurred at 11 o’clock p. m. The inspection, however, was evidently made prior to uncoiling the cable and loosening the nut for facilitating the work. It was necessary, for rendering the operation of the hoist safe, as it subsequently proved, that the nut be tightened again. Hence it would indubitably follow that the readjustment of the nut was a positive duty devolving upon the master, and, the duty having been intrusted to the hoistman to perform the particular service, he was constituted a vice principal, and was performing the absolute duty of the master. The necessity in the work for uncoiling and recoiling the cable from time to time, and loosening the nut for its facilitation, was a thing known to the mechanical department, and it was such as required supervision by that department. The idea that the office of attending to the readjustment of the clutch-bolt was a positive duty of the master is thus reinforced. So it will be seen that it was not a question of selecting careful and competent fellow servants ’ for doing the particular service, but a question solely of whether the work of the master, the specific work being nondelegable, was carelessly and negligently done, and whether the omission to readjust the clutch-bolt before attempting to use the hoist for descending into the shaft was the proximate cause of the accident. These questions were for the jury, and not for the court, and were submitted to them by very clear and carefully prepared instructions. The court went further, and left it to the jury to determine whether Eytton and Egbert, in doing what they did in loosening the clutch-bolt and failing to readjust it, were acting -in the mechanical department, and were therefore vice principals of the master, or whether they were the fellow servants of the deceased, after precisely explaining to the jury the principle that distinguishes the one class of servants from the other. We subjoin the instructions of the court respecting the latter inquiry:

“Now then, gentlemen, if fro-in all of the evidence you find that Mr. Wifkouski did not have control of the hoist, that he was not charged with the responsibility of keeping it in repair, if he did not have the direction of the hoistman as to what should be done from time to time in seeing that the hoist operated properly, but that he could only direct him in so far as giving him the signals and telling him when the hoist should go up and go down, and how rapidly, and so forth, and further that the hoistman, in so far as the mechanical work of keeping this hoist in condition was concerned, was under the control and direction of the mechanical department, ultimately the master mechanic, then you could not find that the hoistman is a fellow servant with the deceased, and therefore the negligence of the hoistman in loosening this screw and leaving it loose would not be a risk taken by the deceased, and if he was injured as a consequence of such negligence'then the; plaintiffs here could recover, provided — and here is the limitation upon that — provided Mr. Witkouski did not know or have reason to believe that the screw was loose at the time, and, further, was unable to appreciate the danger therefrom. Even if he was not to blame, and if no fellow servant of his was to blame, for leaving this screw loose, and yet he knew that it was loose, and, hy reason of his experience or what he had been told, or by the use of his own common sense he was able to appreciate the danger, and *838still, knowing the facts, and appreciating the danger, he for any reason, owing to his desire to get on with the work, or through recklessness, or for any other reason, went ahead and entered the hoist that evening for the purpose of being carried down, and lost his life, h'e could not recover, because then he would have assumed that risk. Upon that hypothesis, he knew of the danger, and, knowing of it, he took the chance. No man can, with an appreciation of a danger, go ahead and take the chance, and then recover from the person who is responsible for the peril.” ■

The court’s attention being called to another part of its instructions, it made some correction, and instructed as follows:

“If you find from' the evidence that the witness Lytton, who was the hoistman upon the shift immediately preceding Egbert, and Egbert were under the direction and exclusive command and authority of the master mechanic or general foreman, or both, and that the deceased, and other pushers, as they are called, -that’is, occupying the same position that he did, with other shifts or crews, and you further find that Witkouski, the deceased, and other pushers, had no authority over' or right to give orders to or direct said hoistmen as to matters and things incident to or pertaining to keeping, said hoist in a reasonably safe condition of repair and efficiency, and that said Lytton, when he went off shift, left the same in an unsafe condition of repair and efficiency, without notifying the succeeding engineer, .Egbert, of such condition, and that such conduct on his part was negligence contributing to or causing the injury, and his act in so leaving the screw and failing to notify Egbert constituted the proximate cause or contributed to the death of the deceased, then you should find for the plaintiffs, unless you further find that Witkouski knew or had reason to believe in the existence of the mechanical conditions which did exist, and which constituted the defective conditions of the hoist, and was further able to appreciate the risk incident to such condition, and notwithstanding such knowledge or information, and such ability to appreciate the risk, attempted to ride down upon the bucket, when the hoist was in such defective condition.”

Certain authorities are relied upon for. defendant’s position, namely, that the readjustment of the clutch-bolt was not a positive .duty-devolving upon the master, but one co-ordinating with the common employment. These require notice.

Buckley v. Gould & Curry Silver Mining Co. (C. C.) 14 Fed. 833, turned upon the question of whether a man who was operating an engine, the negligent act of whom was the cause of the injury, was a fellow servant with the party injured. This pertained to a negligent act in operating the engine, not to whether the engine itself was a safe instrumentality for the workmen to use. The case of Hermann v. Port Blakely Mill Co. (D. C.) 71 Fed. 853, is distinguishable because the action was based upon the theory that the place was unsafe, and not upon the negligence of a servant whose duty it was to give warning to the men. The evidence failed to sustain the action upon that theory.

Spring Valley Coal Co. v. Patting, 86 Fed. 433, 30 C. C. A. 168, is a case of the same nature as Buckley v. Gould, supra.

Theleman v. Moeller et al., 73 Iowa, 108, 34 N. W. 765, 5 Am. St. Rep. 663, is evidently out of line, and cannot be regarded as stating the law applicable.

The case of Bradbury v. Kingston Coal Co., 157 Pa. 231, 27 Atl. 400, comes nearer on its facts to the present case. In that case the operator of the hoist engine attempted to stop the further descent *839of the cage. The cage had descended only a few feet, and the engineer, instead of putting the lever to the center notch in the ratchet, which would have brought the cage to a standstill, pulled it past the notch, which caused the cage to shoot up rapidly. One of the persons therein jumped out, intending to make a landing on a platform, but. failing in his purpose, was precipitated to the bottom of the shaft and killed. The court held that the engineer was a fellow servant with the deceased, and there was no recovery. It was thought that the upward motion of the cage was the result of an accidental mistake on the part of the engineer in pulling his reverse lever too far, and it was further observed that the accident did not happen as the result of any defect in the machinery. It was contended that a cotter-pin had broken or fallen out of its position through the end of the fulenttn-pin or bolt of the throttle-lever, and that the fulcrumholt then worked out oí place, and thus the engineer lost control of the throttle valve. The court disposed of the contention by affirming that the dropping out of the pin did not cause the accident; that ordinarily the injury or death resulting from defective machinery was immediately the result of the defective appliance, and therefore was the direct result of the negligence of the defendant; but that, m that case, neither the pin nor the lever which held it in place inflicted any injury upon any one. It is further stated that the dropping out of the cotter-pin only gave occasion for the engineer to arrest the further descent of the cage, which he did, and that what took place after that was only what might have taken place upon any occasion for stopping the cage. Then it is observed that it was the mistake of the engineer which was the proximate cause of the accident. In that operation it was held that the engineer was acting in t.he capacity of a fellow servant with the deceased, as the preceding eases herein noted hold. The feature which distinguishes that case from this is the dropping out of the pin while the hoist was being operated, a thing wholly unexpected. In the present case the clutch-holt was loosened, and there was neglect to tighten it again before using the hoist. Here there was a known defect in the appliance, which it was the'positive duty of the master to remedy before using the hoist. There was no carelessness in operating the hoist when it was discovered that the bucket was descending too rapidly, for the brake was scientifically applied, and the bucket stopped within reasonable limitations as to time. The damage ensued while there was careful operation of the hoist under the exigencies then present. In other words, the accident did not happen from careless operation of the hoist, but from the neglect to readjust the clutch-bolt. The operation of the hoist was a duty pertaining' to a fellow servant with the deceased. The duty of readjusting the clutch-bolt was one pertaining to the mechanical department, and one, as we have ascertained, which was a positive duty of the master. The hoistman in discharging that duty was acting as vice principal and in the stead and place of the master, and in that capacity was not a fellow servant with the deceased.*1

It is unnecessary to examine other cases cited, as these are truly *840illustrative of the distinction between those relied upon and the present case.

It follows that the adjustment of the clutch-bolt after recoiling the cable was something more than a simple detail of the work assigned to the hoistman; it was, as has been ascertained, a positive duty of the master, to be attended to for the protection and safety of the men employed about the operation of the hoist. Nor was the failure to readjust the clutch-bolt a mere transitory danger to which the men on the bucket were subjected by reason of carelessness of coservants.

[6] Objection is interposed by plaintiffs’ counsel to the court’s examining into the matters hereinbefore discussed at all, upon the ground1'that no exceptions were saved to the instructions of the trial court wherein the crucial question was involved. We think, however, the question was sufficiently raised on the motion interposed, when the case was finally rested, for an instructed verdict for the defendant. We are therefore not satisfied to dispose of the case upon the technical objection.

[7] There were two exceptions, however, reserved to the instructions : One to the effect that they leave out of consideration the question as to whether or not by virtue of the entire crew being at the time engaged in the common employment of rewinding the cable, they had all become for that time fellow servants employed in the mechanical department; the other relating to the burden imposed upon the defendant to show that the risk was assumed by the deceased. Neither of these objections was pressed in the briefs of counsel, and for that reason we might well disregard them. But the first is fully answered by what we have said touching the main issue, and, as to the latter, we are satisfied that the instructions correctly state the law pertaining to the subject.

[8] One other matter insisted upon is that the deceased was guilty Df contributory negligence which was the proximate cause of his death. This was submitted to the jury, and we think properly, for their determination, and they resolved it against the contention, thus determining the issue.

The judgment of the trial court should be affirmed, and it is so ordered.