76 P. 1089 | Utah | 1904
It is alleged, in substance, in the complaint, that the plaintiff, as an employee of the defendant, was, on the fifth of December, 1901, engaged in working in defendant’s coal mine, in the State of Wyoming, at the bottom of a shaft in said mine, which extended from the surface, on an incline of twenty-five degrees, a distance of about eight hundred feet;'that on said day the defendant was, and for a long time prior thereto had been, engaged in constructing a railway track down said shaft-; that in doing so- the iron rails necessary to the construction of said track were loaded upon the top of an ordinary pit car, and let down to the place where needed by means of a wire cable operated by machinery at the surface; that by reason of the weight of the rails, and the downward slope of said shaft and the jerking of the cable, the letting down of the rails was extremely dangerous to the plaintiff, working at the bottom of the shaft, by reason whereof it became and was the duty of the defendant to securely fasten the rails to the top of the car by means of ropes, cables,
At the close of the plaintiff’s evidence the defendant moved for a nonsuit, which was denied. Defendant also requested the court to instruct the jury to return a verdict in favor of the defendant, which was also denied. The denial of each of these motions is assigned as error.
"Without stating the evidence in detail, as it is very voluminous, it is sufficient to say that, after a careful
2. The refusal of the court to give the following instructions, requested by the defendant, is also assigned
3. Defendant’s attorney asked M. J. Blake, a witness for defendant, “What was the general method of letting down rails in those mines you say jou have worked, in, in the State of Wyoming, prior to the time of this accident1?” To this question counsel for plaintiff,objected on the ground that it was incompetent, and did not include conditions existing at the time and place of the accident. This and several objections of the same kind were sustained, and the ruling of the court 'is assigned as error. It follows from what has been said under the second head of this opinion that these objections were properly sustained.
4. The refusal of the court to give each of the following instructions, requested by the defendant, is assigned as error:
“(5) You are instructed that when the plaintiff engaged in the employment of the defendant for compensation he took upon himself the risks and perils ordinarily incident to the performance of the service for which he was employed. That one of the risks and perils, under the laws of Wyoming, so assumed by the said deceased, is that resulting from the carelessness and negligence of the other servants in the same general employment. If you, therefore, find from the evidence*54 that the accident resulted from the negligence of the engineer operating the hoisting engine, or from the negligence of any of the men who were employed in taking rails down the slope, then and in either of said cases plaintiff conld not recover in. this case, for the reason that the accident was caused by the omission or act of a fellow servant with the deceased, for which omission or negligence the said defendant is not liable.
“ (9) The court instructs you that the defendant in this case is not liabíe for any neglect or misconduct of the fellow servants of plaintiff which may have caused his injury, and further charges you that Mr. Tait and Mr. McDonald and other men under Mr. Blake were fellow servants with the plaintiff, and if, therefore, the accident happened because of the negligence of these men to obey the orders of Mr. Blake, the mine boss1, to fasten the rails upon the car, you will find no cause of action against the defendant.
“ (12)' You are instructed that where two or more persons are employed in the same general work by a company, if one is injured'by the negligence of the-other his employer is not responsible. The court further charges you that Mr. Blake, the mine foreman, and Mr. Tait, his assistant, and Mr. McDonald, and the others* loading the cars with the iron rails in question, were fellow servants of the plaintiff in this case. ’ ’
The first sentence of the fifth request was given in the court’s charge. Appellant’s counsel contend that the case at bar is governed by the common law of England on the subject of the liability of the master for injuries to the servant, as adopted by section 2695 of the Revised Statutes of 1899 of the State of Wyoming, and for that reason the requests should have been given. Said section is as follows: “The common law of England as modified by judicial decisions so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law, prior to the fourth year of James the First (excepting the second
In Murdock & Co. v. Hunter’s Representative, 1 Brock. 135-140, Fed. Cas. No. 9941, Mr. Chief Justice Marshall, in the opinion, said: “On passing from principle to authority, it may not be improper to premise that, as the common law of England was and is the common law of this country, and as an appeal from the
In Cowhick v. Shingle, 5 Wyo. 87, 95, 37 Pac. 689, 692, 25 L. R. A. 608, 63 Am. St. Rep 17, Mr. Justice
In view of the foregoing authorities, I am clearly of the opinion that the phrase “common law of England, ’ ’■ as used in section 2695 of the Wyoming Revised
The first decision in England upon the subject of the master’s liability was rendered in 1837, in the case of Priestly v. Fowler, 3 Meeson & Welsby 1. The declaration in the case stated that: “The plaintiff was a servant of the defendant in his trade of a butcher; that the defendant had desired and directed the plaintiff, so being his servant, to go with and take certain goods of the defendant in a certain van of the defendant then used by him, and conducted by another of his servants, in carrying good,s for hire upon a certain journey; that the plaintiff, in pursuance of such desire and direction, .accordingly commenced and was proceeding, and being' ■carried and conveyed by the said van, with the said goods; and it became the defendant’s duty to usa proper care that the van should be in a proper state of repair, and should not be overloaded, and that the
The next decision on the subject in England was made in 1850, in the case of Hutchinson’s Adm. v. The York, etc., Ry. Co., 5 Excheq. 343, and in the opinion it is said: “This case appears to us to be undistinguishable in principle from that of Priestly v. Fowler, 3 M. & W. 1. . . . That case was fully considered, and the court, after a verdict for the plaintiff, arrested the judgment on the ground that a master is not, in general, liable to one servant for damages resulting from the negligence of another. . . . The principle is that a servant, when he engages to serve a master, undertakes, as between him and the master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow servant, whenever he is acting in discharge of his duty as servant of him
While as a general principle, it has been well settled by the decisions of the courts of both England and this country that the master is not liable for an injury to the servant caused by the negligence of a fellow servant, it has likewise been settled that it is the duty of the master to exercise due care, and use all reasonable and ordinary means to prevent the servant from being exposed to unnecessary danger, and if the master neglects to perform that duty he is liable whenever such neglect either directly causes or materially contributes in causing the injury. But as to what specific duties the master is bound to perform in order to avoid liability, and as to who are fellow servants, under these general principles, the decisions of the courts of England, prior to the employer’s liability act of 1880 (43 and 44 Vict. c. 42; Digest of Cases and Statutes (2 vol.), 2236), as also the decisions of the courts o'f this country up to the present time, widely differ. Some of the English case's upon the subject previous to said act are as follows: In the case of Tarrant v. Webb, (decided in 1856) 86 Eng. Com. Law 797, it was held that “a master is not generally responsible for an injury to a servant from the negligence of a fellow servant, but that rule is subject to this qualification; that the master uses reasonable care in the selection of the servant.” Lord Jervis, in the opinion, quoting from the opinion of Lord Cranworth in the case of Patterson v. Wallace, 1 Macq. 748, 751, says: “When a master employs a servant in a work of a dangerous character, he is bound to take all reasonable precautions for the safety of that workman. This is the law of England no less than the law of Scotland. It is the master’s duty to be careful that his ser
The following quotation from the opinion in Hough v. Railway Company, 100 U. S. 221, 25 L. Ed. 612, further shows the views of English courts upon the subject, as well as the view of the Supreme Court of the United States up to the date of the decision, viz.: “The question came before the House of Lords in Patterson v. Wallace (1 Macq. H. L. Cas. 748), and again in 1858, in Bartonshill Coal Co. v. Reid, 1 Macq. H. L. Cas. 266. In the last-named case Lord Cranworth said that it was a principle, established by many preceding cases, ‘that when a master employs his servant in a work of danger he is bound to exercise due care in order to have his tackle and machinery in a safe and proper condition, so as to protect the servant against unnecessary risks. ’ This he held to be the law in both Scotland and England. At the same sitting of the House of Lords, Bartonshill Coal Co. v. McGuire, 3 Macq. H. L. Cas. 307, was determined. In that case Lord Chancellor Chelmsford delivered the principal opinion, concurring in what was said in the Reid Case. After referring to the general doctrine as announced in Priestly v. Fowler, and recognized subsequently in other cases in the English courts, he said: ‘In the consideration of these cases it did not become necessary to define with any great precision what was meant by the words “common service” or “common employment,” and perhaps it might be difficult beforehand to suggest any exact definition of them. It is necessary, however, in each particular case to ascertain whether the fellow servants are fellow laborers in the same work, because,
The particular acts of the master which entitle the servant to recover for injury caused thereby, were not definitely fixed by the law in England previous to the passage of the employer’s liability act in 1880, the first and second sections of chapter 42 of which are as follows:
‘ ‘ Section 1. Where after the commencement of the act personal injury is caused to a workman, (1) by reason of any defect in the condition of the ways, works., machinery, or plant connected with or used in the business of the employer; or (2) by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence; or (3) by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, where such injury resulted from his having so conformed; or (4) by reason of the act or omission of any person in the service of the employer done or made in obedience to rules or by-laws of the employer, or in obedience to' particular instructions given by any person delegated with the authority of the employer in that behalf; or (5) by reason .of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway, the workman, or in case the injury results in death, the legal*66 personal representative of the workman, any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work.
‘ ‘ Section 2. A workman is not entitled under the act to any right of compensation or remedy against the employer in any of the following cases: (1) Under subsection 1 of section 1, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper order. (2) Under subsection 4 of section 1, unless the injury resulted from some impropriety or defect in the rules, bylaws, or instructions therein mentioned; provided that where a rule or by-law has been approved or has been accepted as a proper rule or by-law by one of Her Majesty’s principal Secretaries of State, or by the Board of Trade or any other department of the government, under or by virtue of any act of Parliament, it shall not be deemed for the purposes of this act to be an improper or defective rule or by-law. (3) In any case where the workman knew of the defect or negligence'wkich caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer, or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. ’ ’ 2 Dig. of Eng. Cas., pp. 2236, 2237.
It follows from the foregoing facts and the decisions mentioned upon the subject that the common law of England, at the time of its adoption by the State of
No statute of Wyoming upon the subject of the master’s liability has been called to our attention, and the only decision in that State relating thereto which we have been able to find was rendered in the case of McBride v. Union Pac. R. R. Co., 3 Wyo. 248, 21 Pac. 687, cited by appellant’s counsel as supporting their contention. In that case the “plaintiff had been ordered by the gang boss to assist in lowering an engine in defendant’s shops. The engine was hoisted above the track, and was resting on timbers, which in.turn were resting on the rails,.and above a pit two or three feet deep. In removing the last timber but three men were employed, plaintiff being on the right-hand side, and J. and E. on the left. By order of the boss, J. left the work, and the end of the timber held by E. dropped into the pit causing the other end to fly up and hit plaintiff, inflicting the injuries complained of. The jury found that the gang boss had immediate control of the work, but that he was under the general control of the master mechanic ; that the latter was not in the shops at the time, but that the foreman, who superintended the work in the shops under the general directions of the master mechanic was present. Held, that the defendant could not be held liable for the negligence of the gang boss as a vice principal in the exclusive control of a department. ’ ’ In the opinion, delivered by Mr. Justice Corn, it is said: “None of the authorities, we believe, go to the length of holding the master liable for negligence of an employee as vice principal in control of a department, when there is in the same department, and present at the time of
The same exceptions referred to by Justice Com have been made in the statutes of several of the States, are the same as those mentioned in some of the English cases before cited, and are among the exceptions set out in the employer’s liability act of 1880. Independent of statute, they are, in principle, correct, and are sustained by public policy and the decisions of many well-considered cases by the courts in this country. Under these exceptions a person intrusted by the master with the management of his general business, or with some special part of it, is not a fellow servant with the subordinate employee. The duties imposed by these exceptions are personal duties of the master, which can in
It follows from what we have said that all of the requests under consideration were properly "refused, first, because, it is not the law in the State of Wyoming
5. The appellant also has assigned as error the giving of the following instruction: “ (7) It is the duty of the master, when the nature of the business required it, to make and promulgate rules for the protection of bis
The following rule, stated in Barrows on Negligence, p. 102, sec. 40, is generally sustained by both courts and text-writers, to-wit: “It is the duty of the
A failure upon the part o'f the master to perform this duty is negligence per se. Wood on Mast. & Serv.,
In Eastwood v. Retsof Mining Co., 86 Hun 91, 96, 34 N. Y. Supp. 196, 198, the court said: “It is quite clear in this case that the question whether or not the
6. In addition to the instructions hereinbefore mentioned, requested by the defendant, ten others were asked for by it, and the refusal of each is assigned as
7. In the examination in chief of a witness for the plaintiff the following occurred: “Q. Now tell just the movement of the car when it was in operation down
8. A witness for the defendant was asked by its counsel the following question: “Mr. Hopkins, after your experience and investigation in these matters, which is the better or safer way of letting down those
Upon a careful examination of the whole record we fail to discover any reversible error.
The judgment is affirmed, with costs.