90 Minn. 512 | Minn. | 1903
Respondent company was engaged in the construction of the Great Northern car shops on Dale street, in the city of St. Paul, consisting of six separate buildings located in the immediate vicinity of each other. Appellant was engaged as a general assistant in differertt kinds of work about the buildings, and had several years of experience as a bridge carpenter, and was considered an all-around competent workman. The apparatus used in elevating the lumber and material to the roof was called a “hoist,” made of three pieces of plank in the form of a right-angle triangle. On the day prior to the injury, appellant, with another workman, had been assisting in operating the hoist involved in this controversy, and had thereafter been employed in a similar manner in handling materiál with another hoist upon one of the other buildings. . While appellant was so engaged, he was called by the foreman to help in elevating material with the hoist in question. According to the undisputed testimony, appellant and a fellow workman left the building on which they were at work, and went upon the one where the hoist was situated; appellant taking his position at the edge of the roof, near the cornice, and, assuming that the hoist was properly adjusted, leaned over the edge of the building to guide the rope which ran through a pulley and was attached to a bundle of flooring being pulled up by means of a horse on the ground
At the close of the case respondent rested, with leave to move for a motion to direct a verdict upon the following grounds: That appellant had failed on all the evidence to establish a prima facie case against respondent; that there was no evidence to establish negligence approximately causing the injury; that it affirmatively appeared from the evidence that the negligence, if any, was that of appellant’s fellow servant; and that as a matter of law appellant assumed the risk attending his work in connection with the hoist. Motion granted, and verdict directed in favor of respondent.
There are two well-defined rules established by the decisions of this court in respect to the duty of the master in furnishing tools, machinery, and appliances used.by employees: First. Where the apparatus or appliance is furnished by the master, and is not one required to be constructed in the ordinary progress of the work, then the duty rests upon the master to see that such appliance is reasonably safe for the use intended. In such case it is immaterial whether the master manufactures the appliance or whether it is purchased. The principle is the same, and rests upon the natural right of the workman to rely upon such appliance as being what it is represented to be. The master has a better opportunity to know of and test the sufficiency of the apparatus, and his experience as an employer or master better qualifies him than an ordinary employee to pass upon its efficiency. Second. Where the structure, apparatus, or appliances are a part of or incidental to the work being carried on, and the workmen construct them as a part of their employment, the master is relieved from such' special supervision, and each employee assumes the risk attending the negligence of fellow workmen in respect thereto.
The latter rule is illustrated by the cases of Fraser v. Red River Lumber Co., 45 Minn. 235, 47 N. W. 785; Marsh v. Herman, 47 Minn. 537, 50 N. W. 611; Oelschlegel v. Chicago G. W. Ry. Co., 73 Minn. 327, 76 N. W. 56. It is often the subject-matter of special agreements, and the master may voluntarily assume the responsibility of furnish
Was the hoist in this case an appliance which required the master to see that it was properly constructed, or was it an apparatus to be made, as occasion required, by the workmen engaged in the general enterprise? We have no doubt that, if a complete derrick or hoist had been manufactured by respondent, or purchased by it, and sent to the place of work, and an injury had-occurred by reason of some defect therein, the master would be liable under the general rule; but from the evidence we are forced to the conclusion that the hoist was not such an implement. No particular material was furnished for its construction, and the necessary' planks were selected from material on the ground, used in the erection of the building. No particular class of'workmen was designated by the master to select the timber and construct the hoist, in the sense that such employment became an independent part of the work, within the doctrine of Sims v. American S. B. Co., supra. The affair was of a simple design, easily and readily put together, and for a temporary purpose. The fact that the foreman directed such a hoist to be made and used at the particular time, did not, under the evidence in this case, make the master liable upon the principle that he had voluntarily assumed the responsibility of its construction. Appellant was a fellow workman with the carpenters engaged in laying the floor. He assisted in elevating and carrying the lumber to them, and they put it in place; and, upon occasion, he too, was engaged in nailing down flooring.
Further, if the hoist was properly made, and the injury was not occasioned by any inherent defect, but occurred because it had been
Order affirmed.