18 Colo. App. 153 | Colo. Ct. App. | 1902
The plaintiff in error was plaintiff, and the defendant in error, defendant, below. The complaint
The answer denied that the superintendent ordered the plaintiff to replace the runner; denied that the runner could not be safely and properly handled without a block and tackle; denied that the defendant was guilty of any negligence in failing to provide the
The fact of the injury sustained by the plaintiff, and the manner in which it was received, were proved as alleged. The plaintiff testified that at the time of the accident, he was employed in the cupolas of the converting mill, and had three men under him. That he had been in the employ of the defendant in different capacities for a number of years; that on the morning of the accident he was ordered by Mr. Crow, the superintendent of the converting department, to take his men and replace a runner which had been burned out and rendered useless, with a new one; that he replied, “We can’t handle that runner without a block and fall,” and that Mr. Crow then said, “I will send Douglas up after a while, and I want you to take the men and help put that runner in; I will send him up with a block and fall;” that Douglas was the man who had charge of the machinery in the converting department; that a short time afterwards, Douglas appeared without the block and fall, and said to the plaintiff, ‘ ‘ Get your men, and we will put in that runner while the mill is idle;” that plaintiff then asked him where the block and fall was; that Douglas replied, “I haven’t got one; it is down in the engine-room, and we are in a hurry, and I haven’t got time to get one. There is no danger in putting it in this way;” that thereupon the plaintiff and his men undertook to lift the runner and put it in place without the aid of a block and fall; that this runner weighed seven hundred pounds or over; that he had not had much previous experience in such work, al
It is contended for the plaintiff that it was the duty of the defendant to provide the men with a block and fall at the place where the work was to be done. Unquestionably, as a general rule, it is the duty of the master to exercise reasonable care in providing the servant with proper machinery and appliances for the performance of the work required of him, and in a fit condition for use; the master’s failure to do so is not one of the hazards which the servant risks in entering the employment; and, as to such duty, the negligence of a.servant, whether of high or low degree, to whom its performance is intrusted, is imputed to the master. — Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Herbert, 116 U. S. 642; Railroad Co. v. Sipes, 26 Colo. 17.
But in this case it appears that the defendant had provided upon the premises, for the purposes of such work as that in which the plaintiff received his injury, an appliance called a block and fall, or block and tackle, and that such appliance was the proper instrumentality to be employed in managing and adjusting the runner; and it does not appear but that this appliance was in fit condition for use. It was, evidently, a portable instrument, intended to be carried from place to place in the works, as occasion might require. Mr. Douglas was ordered by the superintendent to take the block and fall and use it in handling the runner, but he disobeyed the order. Now, when, for the purposes of the work required of his employees, the master has provided upon the premises, and within their reach,
The defendant had furnished the proper appliance for putting the runner in place; it was within reach, and could have been used; and that it was not used, was not the fault of the defendant.
But counsel say that the plaintiff was acting in obedience to an order given him by his superior, and accompanied by an assurance of safety; and that unless the danger connected with the work was obvious —and counsel contend it was not — the defendant must respond in damages for the injury. The rule to which reference is had is thus stated in Railway Co. v. O’Brien, 16 Colo. 219:
“A servant is generally excusable for obeying orders in and about his master’s business when such orders are given by one in authority over him as a representative of the master, unless the danger to be incurred by such obedience is so plain and manifest that no prudent person would obey even under the penalty of being discharged from employment.”
We do not think the rule can be held applicable to the facts of this case. We think it quite clear from the evidence that Douglas was not the plaintiff’s superior, and had no authority to command him. Douglas had charge of the machinery of the converting department, and the plaintiff had charge of the cupolas pertaining to the same department; each had
There was no question for the jury to pass upon, and a verdict for the defendant was properly directed.
The judgment will be affirmed. Affirmed.