103 Minn. 176 | Minn. | 1908
(after stating the facts as above).
The negligence of defendant’s servants in this case was sufficiently shown. See McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464, Dohn v. Dawson, 90 Hun, 271, 35 N. Y. Supp. 984. Cf. Hunt v. Pennsylvania, 51 Pa. St. 475.
1. The principal question presented by this appeal concerns plaintiff’s right to complain of that negligence. This is one of the frequently recurring cases in which servants of different masters assist each other upon request in work connected with their employment. The law has treated such cases with due reference to the practical desira
The English rule accords. The controversey has been largely connected with the discussion of Wiggett v. Fox, 11 Exch. 852 (*832). There the defendant, having contracted to erect a tower and having hired a subcontractor to do piecework, provided the scaffolding and tools, and kept an account of the time of employees of the subcontractor. It was held that such employees were engaged in a common employment with the contractor’s other servants, and as a matter of law were their fellow servants. The various views and the general disapproval of this decision will be found in the note to 37 L. R. A. 52, in which the best discussion of this general subject will be found. The final conclusion is thus fairly summarized by Lord Watson in Johnson v. Lindsay (1891) App. Cas. 371, affirmed in Cameron v. Nystrom (1893) App. Cas. 308: “I can well conceive that the general
The circumstances of this case render it unnecessary to resort to other tests, like payment of wages, or hiring or discharging, to determine whether or not the relationship of fellow servant existed. Plaintiff was not under the control of the defendant’s servants, and was not their fellow servant. Though they were engaged in a common employment, they had no common master. Plaintiff was in the employ of the contractor. The laborers through whose fault he was injured were in the employ of the subcontractor. Defendant’s argument, however, is that plaintiff became a fellow servant by undertaking to assist defendant’s servants at their request by removing the wheelbarrow. Defendant’s own servant testified that he had said to plaintiff, Kelly: “Get your wheelbarrow out of the way.” The natural inference was that the wheelbarrow was in plaintiff’s charge. The trial court properly refused to hold as a matter of law that plaintiff was either an assistant or a substitute, and had submitted himself to the control of defendant or of his servants.
Nor was plaintiff as a matter of law a mere volunteer. A volunteer is one who intrudes himself into matters which do not concern him, or does or undertakes to do something which he is not legally nor morally bound to do, and which is not in pursuance or protection of any interest. See 8 Words & Phrases, 7357. To one who
There is, however, an increasing class of cases in which the exercise of proportionate care is held to be due to servants of different masters who assist in the performance of a service mutually beneficial to such employers. Thus a servant of a shipper, who, to prevent delay, aids the servants of a carrier in shunting cars, is not a mere volunteer assisting defendant’s servants, although on request, but is regarded as having been on defendant’s premises with a purpose of expediting the delivery of his own goods. The carrier is liable to him for the negligence of its servants. Holmes v. Northeastern, L. R. 4 Exch. 254; L. R. 6 Exch. 123; Wright v. London, L. R. 1 Q. B. Div. 252; Abraham v. Reynolds, 5 Hurl. & N. 142. And see Hannigan v. Union, 3 App. Div. 618, 38 N. Y. Supp. 272; Connors v. Great Northern, 90 App. Div. 311, 85 N. Y. Supp. 644. Cf. Elliott v. Hall, L. R. 15 Q. B. Div. 315. So one with an interest, who is requested by another’s servant to assist in adjusting or fixing an instrumentality, is not a mere volunteer, but is within the rule requiring the exercise of due care. Meyer v. Kenyon-Rosing M. Co., 95 Minn. 329, 104 N. W. 132; Empire v. Brady, 60 Ill. App. 379. “The distinction running through all the
And see Pennsylvania v. Gallagher, 40 Oh. St. 637, 48 Am. 689; Street Ry. Co. v. Bolton, 43 Oh. St. 224, 1 N. E. 333, 54 Am. 803; Eason v. S. & E. T. Ry. Co., 65 Tex. 577, 57 Am. 606; Marks v. Rochester, 77 Hun, 77, 28 N. Y. Supp. 314; Cleveland v. Spier, 16 C. B. (N. S.) 399; 2 Labatt, M. & S. 1860, § 632 (approved in Meyer v. Kenyon-Rosing Machinery Co., 95 Minn. 329, 104 N. W. 132); 26 Cyc. 1085. The requirement of care applies, a fortiori, when such person is injured in the justifiable attempt to protect the property of his master in his charge from damage by the instrumentality of another master. Weatherford v. Duncan, 10 Tex. Civ. App. 479, 31 S. W. 562. Within these principles it is clear that plaintiff was not as a matter of law, a mere volunteer.
The jury was justified' in finding that, in the words of the charge, plaintiff “was rightfully there.” He was not a trespasser, for he was on the premises by virtue of the agreements between the contractor and the owner and the contractor and the subcontractor. As was said in Heaven v. Pender, 49 L. T. (N. S.) 357, per Cotton, L. J., at page 361: “The plaintiff was therefore engaged in work in the performance of which the defendant was interested.” It has been said that “one who, in furtherance of his own interests or those of his master, assists the
The danger created by the present defendant’s servants in this case was not remote nor merely negative, as occurs, for example, in cases of insecure fastenings on structures not intended to be used by persons of the injured workman’s class. It was imminent and affirmative. The situation was in morals not at all like the setting of a trap, but in practical effect much resembled such an act. Cf. Lottman v. Barnett, 62 Mo. 159, 168.
2. It appears from the evidence, as previously stated, that defendant’s servants were in fact, according to the verdict, engaged in their master’s work at the time of the alleged negligence, and that plaintiff was injured because of the fall of an instrumentality which they were using. They did not, as a matter of law, step aside from their master’s
3. The most serious question in this case arises from the erroneous cross-examination under the statute of an employee of defendant under the mistaken impression that defendant was a corporation, whereas it was in fact a partnership. Defendant, however, expressly admits that, if plaintiff was entitled to recover anything, the verdict was reasonable. We understand, also, that he does not wish a new trial. No reason suggests itself why, under these circumstances, he should be compelled to prolong this litigation.
Order affirmed.
On March 27, 1908, the following opinion was filed:
PER CURIAJVI.
Reargument in this case was allowed after the original opinion had been filed, in view of a question whether there had been misapprehension as to defendant’s desire for a new trial. The following question was then fully argued and considered de novo, viz.: Was defendant entitled to a new trial because of error in permitting plaintiff to cross-examine a witness under R. R. 1905, § 4662, under the mistaken impression that defendant was a corporation, whereas in fact defendant was an individual?
The law applicable to that question is clear. The ruling of the court was erroneous. Prejudice is presumed. A new trial must be granted unless the record affirmatively shows that the error did not in fact result in prejudice. R. R. 1905, § 4198. With this in view we have carefully re-examined and reconsidered the record. The evidence introduced would have been proper on ordinary direct examination. Use of privileges peculiar to cross-examination was not made. It affirmatively appears that the error was not prejudicial. Affirmed.