121 P. 867 | Wyo. | 1912
Lead Opinion
This action was brought in the District Court in Albany County by Erling J. Engen against The Rambler Copper and Platinum Company, a corporation, to recover damages for personal injuries alleged to have been sustained by the plaintiff on the 9th day of February, 1909, through the negligence of the defendant. The plaintiff was employed by the defendant to work in and about its mine, and had been so employed for several years whenever the mine was in operation. It is admitted by the pleadings that the mine was operated by means of a shaft sunk thereon to the depth of one hundred .feet and more through which the ore and mineral taken from the underground workings were hoisted to the surface, the answer alleging that the shaft was 170 feet deep; and that a hoist was established at the mine operated by steam power, applied by means of a large boiler and stationary engine and other machinery and appliances necessary for the operation and control of said hoist. The petition alleges that the means provided for the plaintiff to go to and return from his underground place of work was a cage which was raised and lowered by machinery under control of an engineer, and that plaintiff was required to go to and from his work in that way. This allegation is denied by the answer. On the morning of the day above mentioned, for the purpose of being lowered to his place of work, the plaintiff, with five other employes of the defendant, went upon the cage which was operated by said hoisting machinery, and upon a signal or word to the hoistman or engineer indicating that the men were ready to be lowered the cage was started, but instead of descending under the usual control of the machinery provided for that purpose it dropped rapidly to the bottom of the mine resulting in the injuries to plaintiff complained of.
By the first defense in the answer the allegations of negligence' were specifically denied. The answer also con
In addition to proof of the fact that plaintiff was employed by the defendant and was injured as above 'stated, evidence was produced on his behalf for the purpose of showing that the person engaged in operating the hoist was incompetent; that there was a defect in the machinery connected with the hoist which caused or materially contributed to the injuries complained of; and that it would have been a reasonable rule to require the cage to be lowered and raised to see that it was in working order before the workmen were allowed to. descend therein to their respective places of work.
The showing made by the evidence relating to the. competency of the hoistman may be summarized as follows: (1) That he was not an engineer by training or profession; that the ordinary duties of a hoistman do not require that he should be a skilled engineer or machinist, and usually he is not, but he should know how to run a hoist, and be a cool, level headed man. (2) That he was nervous and excitable at times, and for that reason an unsafe man for the position in cases of emergency. (3) That he was addicted to the excessive use of intoxicating liquors, though it is not shown that he was ever intoxicated or used intoxicating liquors when at the mine, the showing as to specific instances of his excessive drinking referring to occasions when he was in town. One witness, however, testified that his nerves had become affected by over indulgence in strong liquor, and that his tendency to such indulgence was known among his associates and might have been ascertained by the exercise of ordinary care and inquiry. It appears that there had been a change in the corporation operating the mine, which involved, as we understand, a change of own-, ership, though it is not shown when that change occurred; but after the change Mr. Tannehill, who had been in charge at the mine for several years as foreman or superintendent, appears to have remained there for a time under Mr. Sher
As to the defects in the machinery, it was shown that a pipe, “to keep the water from draining on top,” ran from the throttle valve of the engine over the hoist, and that a valve was so placed in that pipe above the hoist that, in case it leaked, the water would fall on the brake, or, as the witness stated, “on the brake — brake seat, just touch it.” That fact was testified to by Mr. Tannehill, the former foreman or superintendent, and who was employed at the mine until about a month prior to the time of the accident in question, and who had installed the machinery; but on cross-examination he testified that he had no trouble from the valve leaking when he was there; that he considered it perféctly safe, and would have changed it if he had not thought it safe. It appears that at the time of this accident the mine was not operated at night, and that the night before the accident was very cold. The plaintiff testified that after the accident he got out of the cage and crawled up a ladder that was in a separate compartment of the shaft, and when he reached the surface was met by the hoistman, Mr. William Holmes, and Mr. Sherwood, the superintendent, each-of whom explained to him that the accident was caused by ice on the brake. His testimony concerning such statements was as follows:
“Q. Did they or either of them undertake to make any explanation to you at the time of the cause of the accident ?
■ “A. Yes, they said there was ice on the brake.
“Q. Did one or both of them make that statement?
*118 “A. Both of them.
“Q. State, if you know, how the ice got there. What did they say as to how the ice got there ?
“A. Well, I believe they claimed that it was a leaking pipe there somewhere around the brake, and that the water, during the night, that the water had dripped onto part of the-machinery and splashed it under the brake and froze.”
(Cross-examination.) “Q. Now, who was it that told you there was ice on the brake? A. Mr. Holmes, himself. That is the engineer, and Mr. Sherwood. Q. When was-that? A. Shortly after I got on the surface. Q. Did they say anything else about it? A.- N'o, only that there was a pipe, a little small pipe, running over the brake, and there was a valve there that was leaking. Q. Now, when did they tell you that? A. Shortly after I got out o'f the mine, I told you. Q. That same day? A. That same day, yes.”
Tannehill,. the former superintendent, and -one Kinney, after a showing as to their competency as witnesses on' the subject, testified that a reasonable rule for the operation of the hoist would have been to require the lowering and raising of the hoist to ascertain that it was in working order before lowering the men down the shaft. The witness Kinney testified that such a rule is necessary and reasonable to provide for the safety of the men, for the reason that the machinery may stick after it has been idle, the brake may stick or there may be something the matter, and a proper test is to run the cage up and down the shaft, and that the rulé is the same in all mines, regardless of the number of men employed. That no such rule was in force at this mine we think sufficiently appears. Mr. Tannehill testifiéd that when he was there the machinery was occasionally tested by lowering and raising the cage, but not generally.
Upon the motion of counsel for'defendant at the close of plaintiff’s evidence the’ court instructed the jury to return a verdict in favor of the defendant, which was accordingly done, and a judgment for the defendant was entered upon
The record supports the showing made by the affidavits in these respects: It appears thereby that plaintiff’s motion to strike from the answer the seventh defense and a large part of the first defense was sustained March 25, 1910; that the trial commenced on that day and continued through the following day, and that the motion for a directed verdict was taken under advisement, and decided on March 28, 1910, which is also the date on which the verdict appears to have been filed. And if it be conceded that proof of the facts alleged as new matter in the answer, or an admission that they were true, would defeat recovery, it appears-that a failure to file a reply was not mentioned as a ground for the motion for peremptory instruction in favor of defendant, although several grounds for that motion were specifically stated, which would seem to indicate an understanding that the reply might be filed during the trial, and that the trial had proceeded as though the necessary reply had" been filed.
The rule is apparently well settled that after a contest on • the merits, as if new matter in the answer were denied, the.
Before proceeding to discuss the question thus presented it should be stated that there is nothing in the evidence to show the condition of the valve as to leaking prior to the night of the accident, unless something in that connection might be indicated by the statements made to the plaintiff immediately after the accident above alluded to; but the absence of such evidence may have occurred through the'' ruling of the court confining the showing to the day of thé accident.
There is no statute in this state defining the relation of fellow' servants, or changing or modifying the rules which have been established ’ by judicial decisions upon the principles of the common law for determining the liability of an employer for injuries sustained by an employee in the discharge of his duties. Statutes have «been enacted imposing certain duties upon an employer in specified cases and giving the right of action for damages where an injury has occurred as a result of a willful violation of such duties, but they are not applicable here.
The principle that in the absence of a statute providing otherwise the master is not liable in an action for damages for an injury occurring to an employee through the negligence of a mere fellow servant is too well settled to require discussion, and was recognized and applied in McBride v. Union Pac. Ry. Co., 3 Wyo. 248. But it is equally well
The duty of providing and maintaining a reasonably safe place in which to work and reasonably safe machinery, and appliances, requires reasonable inspection and tests. The duty of the employer to guard his workmen against unnecessary and unreasonable risks extends not only to those that are known to him, but also to such as a reasonably prudent man in the exercise of ordinary diligence would know or discover, having regard to the danger to be avoided. (4 Thomp. Com. on Neg.,. sec. 3783.) As' to this matter,
We think the evidence tended to show that the falling of the cage was the result of negligence, and that it was sufficient to be submitted to the jury upon that question, unless it can be held as a matter of law either that the cause of the accident was the -negligence of the hoistman as a fellow servant of the plaintiff, or that for some other reason appearing from the-evidence the defendant would not be liable. It is uniformly held that where the injury is caused by negligence in the performance or failure to perform one of the positive duties of the employer the fellow servant doctrine does not apply, for as to such duty the negligent servant upon whom the duty rested is regarded as a vice-principal, and his act or failure to act as the act or failure of the employer. In other respects the authorities are conflicting concerning the rule for determining, in the absence of statute, when the relation of fellow servants exists. What may be said to be the prevailing rule because it seems to be the one more generally adopted is that .the fact which determines whether the negligent employee is a fellow servant of the one injured or a vice-principal is not his grade or rank but the character of the act or service. That has been the doctrine of the Federal courts at least since the decision in the case of Baltimore & Ohio Railroad v. Baugh,
The question is not here involved whether in every case it would be improper to consider the relative rank or superior authority of the one shown to have been negligent, especially where the authority is general over the entire business or over a large and distinct department, and we shall therefore express no opinion concerning it; .but as a general rule we think the one above stated is best sustained upon principle and authority, viz: that the character of the service rather than the grade or rank is the determining factor. One of the positive duties of an employer is said to be that of supervision, and it may be that the general rule stated affords adequate protection to those in subordinate positions against the negligent acts’ of a superior without the necessity of qualification or exception. The case of McBride v. Union Pacific Ry. Co., 3 Wyo. 248, has been cited as approving the superior servant rule announced in the Ross case. (2 Bailey on Per. Inj., sec. 737.) When the McBride case was decided Wyoming was a territory and the decisions of its courts were controlled by those of the Supreme Court of the United States as the court of last resort; it would be more correct, therefore, to say that the Ross case was followed and applied so far as the question was involved.
In the absence of a statute providing otherwise, and where it does not appfear that the negligence of the hoistman causing the injury complained of occurred in'the performance or failure to perform a positive duty of the employer, by the clear weight of authority it is held that as to his duty to lower men to their work in the mine he is their fellow servant. (Bartonshill Coal Co. v. Reid, 3 Macq. 266, 19 Eng. Rul. Cas. 107; Bradbury v. Kingston Coal Co., 157 Pa. St. 231; Mulhern v. Lehigh Valley Coal Co., 161 Pa. St. 270; Buckley v. Gould &c. Min. Co., 14 Fed. 833; Wood v. New Bedford Coal Co., 121 Mass. 252; Trewatha v. Buchanan &c. Min. Co., (Cal.) 28 Pac. 571; Spring Valley Coal Co. v. Patting, 86 Fed. 433; Stoll v. Daly Min. Co. (Utah) 57 Pac. 295.) And likewise the engineer operating an elevator. (Spees v. Baggs, 198 Pa. St. 112; Stringham v. Hilton, 111 N. Y. 188; Wolcott v. Studebaker 34 Fed. 8; Mann v. O’Sullivan (Cal.) 58 Pac. 375.) In Illinois the con-association rule prevails viz: .That to constitute the servants of a common master fellow servants so as to exonerate the master from liability for an injury caused to one of them through the negligence of another, it is necessary that they should be at the time actually co-operating with each other in the particular business in hand in the same line of employment, or that their duties should be such as to bring them into habitual association, so that they may exercise a mutual influence on each other promotive of caution. Applying that rule it is held in that state that the hoistman and miner are not fellow servants. (Spring Valley Coal Co. v. Patting, 210 Ill. 342; Illinois &c. Co. v. Cioni, 215 Ill. 583.) In those cases it appeared, however, that the engineer received his signals from either a top eager or a bottom eager, and that the miner injured had nothing to do in that connection. There were only a few men employed in the mine in question, and the signal to start the cage was given by the men or one of them about
There is very little in the evidence touching the matter of the hoistman’s duty beyond the showing that it was his duty to run the engine and hoist. Whether the leak in the pipe or valve or the presence of ice on the brake could have been discovered upon a reasonable examination, and whether such examination should have been made owing to the coldness of
Jt would clearly be the duty of the defendant to repair the leak in the valve, if dangerous, unless the defect was one occurring in the progress and as one of the details of the work of operating the hoist or machinery and to be attended to as part of that work; and the failure to do so after notice of the defect, or under circumstances sufficient to charge the defendant with notice, would be negligence. We are not prepared to say that the evidence as to notice was sufficient to require or justify the submission of this question to the jury, for, as above stated, there is no direct showing as to the length of' time the defect had existed, nor as to actual notice prior to the accident. The only evidence in support of the allegation that the hoist was improperly constructed is that of Mr. Tannehill, who installed the machinery, and who testified that the valve was so placed that if it leaked the water would fall on the brake; but on cross-examination, he testified that he considered that to be perfectly safe, and if he had not thought so he would have changed it. We cannot say, therefore, as a matter of law that there was improper construction, nor do we think the evidence on this point would furnish any ground for holding the peremptory instruction to be prejudicial error. We shall refer to a few cases seeming to be analogous in- prin-
In Alaska United Gold Min. Co. v. Keating, 1-16 Fed. 561, decided by the Circuit Court oí Appeals for. the Ninth Circuit, the action was brought to recover damages for a personal injury to a miner caused by the cage in which he was being lowered in the shaft coming suddenly in contact with a chair or.bar that had been-negligently left down and across the shaft at a point about 290 feet below the surface. The trial court instructed the jury that the negligence in leaving the chair or bar down and across, the shaft was the negligence of a fellow servant, and not the carelessness or negligence of the defendant, and that the- verdict should be for the defendant. The court say: “This instruction was clear, positive, and direct, and disposed of the question-of liability of the defendant in this action, with one single qualification, and that was the question, did the defendant owe to the plaintiff a positive duty to use reasonable precaution to ascertain whether the shaft was clear of obstructions before lowering him ¡down the shaft to his place of work. This question the court submitted to the jury as a question of fact to be determined from the evidence relating to the custom in the operation of mines where this precaution was taken to secure the safety of the workmen. A number of witnesses testified that such a custom did prevail in many mines, because of the danger of obstructions and displaced timbers in the shaft caused by blasting operations. There was also the inference that the time elapsing between the coming up of the night shift and the going down of the day shift, to which the plaintiff belonged, made it specially necessary that the effect of such disturbances should be ascertained before sending workmen down the shaft. What was a reasonable precaution to be taken by the defendant to secure the safety of the plaintiff, under the circumstances of the case, was a question of fact for the jury, and justified the instructions of the court.” The case of McFall v. Ia. Cent. Ry. Co., 96 Ia. 723 & 104 Ia. 47, was an action against
In the case of Balhoff v. Mich. Cent. R. Co., 106 Mich. 606, it appeared that a brakeman was killed by the derailment of a car that was being backed upon a side track, caused by the formation of ice on the tracks at a point where there was a slight depression in the roadbed. Held, that it was the duty of the defendant to provide a reasonably safe track, one which, .measured by the standard of good railroading as actually conducted, can be said to be reasonably safe, and if such standard required the danger of ice freezing over the track to be foreseen, and the making of provision to prevent it, then'it would be negligence to omit such provision; and the same rule would furnish the test of the adequacy of provisions made. Held, further, that these were questions of fact, unless the evidence was conclusive and uncontradicted, one way or the other; and that not being the case, it was a question for the jury whether a reasonably safe place had been furnished by the defendant. In Louisville & Nashville R. Co. v. Kemper, 153 Ind. 618, where it appeared that the railroad company permitted a portion of its roadbed underneath the cross-ties to become soft by reason of the flow of water from a hydrant of the company, so .that- the rails and cross-ties would sink down when the weight of a car was placed thereon, such condition not being obvious or apparent, but being known to the company, or by the exercise of ordinary care discoverable by it, the company was held negligent in failing to
It was held in Fifield v. Northern Railroad, 42 N. H. 225, that an action may be maintained against a railroad corporation for an injury to a brakeman caused by the negligence of the company in permitting its road to become blocked with snow and ice, and a car to be out of repair, the plaintiff being.in no fault. The court said: “Whether the negligence (of the master) consisted in not discovering or in not removing the defects himself, or in not employing any or a sufficient number of repair-menj or competent ones,- the action could be founded upon his personal negligence. * * * Ordinary care and prudence may have required that workmen should have been employed to repair the cars, and to remove the .snow and ice from the track.”
It appeared in the case of Courtney v. Cornell, 49 N. Y. Super. (17 J. & S.) 286, that the plaintiff was injured while employed by defendants in operating a derrick used in constructing a building, and was injured as the result of the slipping of the derrick from its place while in use. The accident was caused by the stretching of the guy ropes from rain which fell the night before the morning of the accident, and there was evidence that the accident might have been prevented by proper precautions, one of such precautions being the usual one after a rainy day, according to the testimony of an expert witness, of testing the ropes by raising from the ground the iron column for which the derrick was used, watching it to see what the rope gives, and then straightening the derrick up again. It was the duty of defendant’s foreman to construct and rig the derrick, and he superintended the starting of the derrick on the morning of the accident immediately prior thereto. It was held that the dismissal of the action at the trial was error; that it was the continuous duty of defendants to furnish their employees a properly rigged derrick, and to maintain it in such condition; and that the foreman’s negligence in
It does not appear that it was any part of the plaintiff’s duty to inspect the machinery, and we perceive nothing in the evidence that would justify taking the case from the jury on the ground that the plaintiff ought to have known of the alleged defect that may have caused the accident, or that he was himself negligent. Nor can such action be sustained on the ground suggested in defendant’s brief that the accident was the result of an act of God. “If there is any intervening human agency which contributes to cause the damage it cannot be considered as caused by an act of God.” (Sandy v. Lake St. El. R. Co., 235 Ill. 194; Welfelt v. Ill. Cent. R. Co., 149 Ill. App. 317.) The fact that the water on the brake froze because the night before the accident was very cold would not exempt the defendant from liability, if it should be found that the negligence of the defendant in failing to repair a defect, the existence of which it knew or ought to have known by the exercise of reasonable care, or .in failing to inspect, or in any other particular within the allegations of the petition, was a proximate cause of the injury. For the reasons stated the judgment must be reversed and the cause remanded for new trial.
Rehearing
Counsel for defendant in error has filed a petition for rehearing in this case. We have carefully considered the able brief filed in support of the petition, but remain convinced that the questions discussed in the former opinion were properly disposed of, and we deem it unnecessary to again state the reasons for the conclusions announced. The additional point is now made for the first time in this court that the statements made by the mine superintendent and hoistman to the plaintiff explaining the cause of the accident should have been excluded as incompetent. It is true that the testimony of the plaintiff concerning those statements given upon his direct examination was admitted over the objection of the defendant, but the same facts were again testified to upon his cross-examination, as shown in our former opinion, and all his evidence relating to such statements was in the case'when the motion was'made and sustained for a directed verdict. It does not appear that such motion was sustained on the ground of the incompetency of the statements aforesaid, but on the contrary we think it appears that the verdict was directed upon the ground of the insufficiency of the plaintiff’s evidence to establish his right to recover. Therefore, if it should be conceded that such statements were erroneously admitted it is doubtful if it would be proper in this court under the circumstances to exclude the same from consideration in disposing of the case. To now hold that such evidence was improperly admitted and affirm the judgment on that ground would deprive the plaintiff of the right to furnish other evidence upon the subject, if any should be available; a right which he would have had if the evidence had been excluded or stricken out upon the trial. Again to exclude it from consideration at this time would render the error in confining the showing as to the condition of the machinery to the day of the accident even more prejudicial than with the evidence of such statements in the case.