90 Minn. 492 | Minn. | 1903
Action to recover for injuries alleged to have been caused by, the. negligence of defendant. A verdict was directed for defendant on the trial in the court below, and plaintiff appealed from an order denying a new trial.
It is contended by appellant that in supervising the loading of the pulley wheel and in carrying forward that work Trevillyan was a vice principal, and charged with one of the master’s absolute duties to the servant, which he failed properly to perform. The work engaged in at this time was the ordinary and usual work of defendant, such as the superintendent and other servants were daily engaged in. Recovery is not sought upon the ground that the superintendent was guilty' of any personal negligence, but it is claimed that it was defendant’s absolute duty to exercise a proper supervision over the work of loading the pulley wheel, and ordinary care in preventing accidents likely to result from the performance of that work; and that the superintendent, whom defendant had placed in charge thereof, failed to per
It is true that the superintendent.had general charge and supervision of defendant's business and this particular work, but from this it does not follow that he was a vice principal. A superintendent or foreman is not necessarily a vice principal simply because he occupies that position. Title or rank has not of itself any special significance in this connection. When engaged with the other servants in the common employment of the master, the superintendent or foreman is a fellow servant, and for his personal negligence the master is not responsible; but when clothed with special authority in respect to the management and conduct of the master’s business, a general supervision of it, the control and direction of the other servants under his charge, authority to direct them in the performance of their duties, he is, in respect to those absolute duties the master owes such other servants, a vice principal, lie stands in the place of the master in the performance of those duties, whether in reference to the selection of safe instrumentalities, a safe place to work, or in giving proper warning of dangers and risks not known to the servant, or which he could not by the exercise of reasonable prudence discover; and his failure and neglect to perform such absolute duties render the master liable.
But the case at bar does not present facts showing that the master owed deceased any absolute duty in respect to the negligence alleged in the complaint, and, even though it be conceded that the superintendent was guilty of negligence in the manner of loading the pulley wheel, defendant is not liable. In respect to that work the superintendent was engaged with other servants in the ordinary work of defendant, loading and unloading heavy machinery, moving it in and out of the factory, and was a fellow servant, and,not a vice principal. „Corneilson v. Eastern Ry. Co., 50 Minn. 23, 52 N. W. 224; Ling v. St. Paul, M. & M. Ry. Co., 50 Minn. 160, 52 N. W. 378; O’Niel v. Great Northern Ry. Co., 80 Minn. 27, 82 N. W. 1086; McDonald v. Buckley, 109 Fed. 290, 48 C. C. A. 372. And besides the rule requiring the master to exercise a general supervision over the work of his servants does not extend to dangers and risks, that are apparent and obvious, or which might be discovered by the servant by the exercise of reasonable
But, whether we be correct in this or not, it is clear upon the undisputed facts in the case that plaintiff’s intestate assumed whatever risks were incident to setting up the edger at the place he was performing that work. Deceased was a skilled machinist, and for twenty years had worked in this shop. He had set up nearly a hundred edgers, such as he was engaged in putting together at the time of the accident. He had frequently assisted in loading and unloading heavy machinery, and in the manner in which this pulley wheel was being loaded. In short, he was as familiar with the shop and its work as any other person in the employ of defendant. On all other occasions when deceased had set up these edgers he had selected, a place near the center of the factory, where he could perform his work with entire safety, and where, by a custom in the shop, they had been uniformly put together. He was not ordered by the superintendent to do the work on this occasion at the place where he attempted to do it. He was simply ordered to set up the machine, and selected this particular place of his own motion. He was aware of the fact, when setting up the edger, that the superintendent and other servants were engaged in loading the pulley wheel onto the wagon, and that they were making use of the crane to assist in that work. He was aware that the place where he was performing the work was attended with more or less danger. The progress of that work necessarily changed the character of the place where he was working and enhanced the liability for accidents to- occur. He was bound to take notice of the operations of the other servants, and govern and control himself accordingly. Failing tO' do that, he must, as a matter of law, be deemed to have assumed, in voluntarily setting about his work at this point, whatever risks and dangers were incident to its performance at that place. Upon this state of facts we are of opinion that the learned trial court properly directed a verdict for defendant. The case is not unlike O’Niel v. Great Northern Ry. Co., supra, where the rules of law applicable to the question when a superintendent or foreman is a vice principal are discussed. See also Ling v. St. Paul, M. & M. Ry. Co., supra.
At the trial defendant offered in evidence certain declarations of deceased to the effect that he alone was responsible for the accident,
Order affirmed.