52 A. 545 | N.H. | 1902
Lead Opinion
"A servant who is injured by the negligence of a fellow-servant in the course of their common employment, without any fault on the part of the master, can maintain no action against the master for such injury." Fifield v. Railroad,
The plaintiff, the foreman, and the teamsters were engaged in a common employment filling the trench. The plaintiff in the bottom of the ditch was injured by the negligent dumping of earth and stones upon him. If he had been warned, he could have protected himself and escaped injury. The liability of the defendants for the failure of the foreman to give the warning, assuming that such failure was due to negligence, is determined by the answer to the question whether the duty of giving the omitted warning was a duty personal to the master. The rank or grade of the employee to whom this duty was in this case entrusted is immaterial, because the foundation of the claim is the non-performance of an alleged non-delegable duty. The only breach of the master's duty suggested is the failure to provide the plaintiff with a safe place in which to work and to keep it safe. It is urged that, as the plaintiff could not safely work in the bottom of the ditch without warning, the master's duty as to the place was not performed unless the warning were given. It is not suggested that the place itself in which the plaintiff was at work was unsafe. There was no secret danger unknown to the plaintiff; at least, the injury is not attributed to such a cause. The plaintiff's injury was due to a danger arising in the progress of the work. So long as in the work of filling the trench no earth was thrown into it in the plaintiff's vicinity, the place where he was at work was safe. His injury resulted from the prosecution of the common work by the defendants' other employees. The place and the danger varied as the work progressed. The place was not a permanent location prepared by the master for the work, but was made and changed by the work the servants were doing. Where the *296
supplying of a work-place is part of, or necessarily results from, the work being done, and is to be done by the servants themselves, the master is not liable for a co-servant's negligence in the progress of the work, rendering the place unsafe. Armour v. Hahn,
The obligations of the master as to machinery and appliances and in respect to the place are the same in substance, and may both, as well as his duty in the employment of servants, be comprehended by the use of the term "instrumentalities." The master's duty is to exercise care to provide reasonably safe and sufficient instrumentalities for the work. The execution of the work is the duty of the servant. "The master has not contracted or undertaken to execute in person the work connected with his business." Wilson v. Merry, L. R. 1 H. L. Sc. 326, 332. When the repair of the machinery or appliances furnished by the master requires skill and practical knowledge, the obligation is that of the master; but when the inspection and repair is incidental to the use of the appliance, i.e., is a part of the work of its use, such inspection and repair is the duty of the servant. Jaques v. Company,
The contention that the master's duty as to the place is in question here, involves a confusion of ideas. It is not the duty as to the place itself that is in question, but the question is as to the extent of the duty of the master to guard the servant from dangers *297
arising in the course of the work from the work itself. The master is bound to take reasonable precautions to insure the servant's safety (Foss v. Baker,
The logical soundness of the general rule appears from its application to the facts in this case. The plaintiff was injured because the foreman negligently directed or permitted the earth to be thrown upon him. If the duty of warning is personal to the master, the duty to take care that the earth should not be thrown upon the servant is equally so. The difference is merely one of statement. If the master is liable here for the negligence of the foreman in omitting the warning, he would be liable for the negligence of the teamster who dumped his load without warning if the duty rested upon him to give warning, or for the negligence of the single shoveler who in like manner emptied his shovel upon his companion. In the latter case, it would be entirely immaterial whether the one in the ditch or the one upon the ground above was foreman. The cause of the injury is the negligent throwing of the earth by the one upon the other. The absence of a warning by which the injury would have been escaped is merely evidence of negligence in the person performing the act. As the act is that of a servant, the negligence is also. It is immaterial whether the act and the omission are chargeable to the same person. The division of duty necessary in large enterprises does not make that the act of the master which in smaller concerns is the negligence of the servant. The fact that the foreman had control over the plaintiff and directed him where to work does not, under Jaques v. Company, make the master liable for the negligence in the work of a fellow-servant. Keenan v. Railroad,
The parties agree in an amendment to the case, that the only questions raised or transferred are (1) the liability of the defendants for the failure of the boss, who was present performing the duty of giving warnings, to warn the plaintiff at the time of the accident; and (2) the effect of the assurance of protection by the foreman to the plaintiff as an inducement to him to enter upon and continue at the work assigned him. Therefore, whether the *299 personal duty of the employers required them in this case to make rules for the conduct of the business or provision for a warning, and whether such duty was discharged by the assumption by the foreman of the task of giving warning, are questions not raised or presented for consideration.
While there is no implied contract for the breach of which the defendants are liable, they might be personally liable upon an express contract if one were made. There is evidence of an express undertaking by the foreman that he would "take care of" the plaintiff. Construed in the light of the practice shown by the evidence, this might be found to constitute an agreement to give warning, or a warranty that one should be given. Accompanied by evidence of authority from the defendants, such contract and its breach would establish the plaintiff's case. The only evidence is that the foreman was in charge of the whole gang, both teamsters and shovelers, and had been all summer. It is to be inferred, therefore, that the foreman had authority to direct the men where to work. If it were necessary to place a man to give warning, he had that authority. If the assurance had been that some one — the foreman, or some one else — would be charged with the duty of warning, and no person had been directed to perform that duty, the failure might be held a breach of the master's duty entrusted to him. But there is no evidence that the foreman was authorized to do more in the name of the defendants than perform so much of the defendants' legal duty as was entrusted to him. The duty to select some one to give the warning having been performed by the assumption of that duty by himself, of whose competency no question is made, his authority so far as shown by the evidence was exhausted. In his capacity of watchman, he had no more authority to pledge the defendants as insurers of the plaintiff's safety than any man whom he might have directed to perform that duty. His authority to act for the defendants being only that implied by law, he had not authority to act for them outside the duty which the law imposed upon them. If the law imposed upon them the duty of warning, the express agreement is immaterial except upon the question of the plaintiff's care, because the defendants would be equally liable without as with the agreement; while if they are not liable, there is nothing in the case empowering the foreman to agree they should be. What the foreman said was the mere promise or guaranty of a fellow-servant. It does not purport to be anything more. The promise of a servant that he will exercise care in the work entrusted to him to avoid injury to a fellow-servant is not the promise of the master. Martin v. Railroad,
It does not appear that the foreman hired or discharged the other employees. Entrusted with the authority to make the contract of hiring, reasonable and necessary stipulations introduced by him into the contract would be binding upon the defendants. As part of such a contract, a reasonable and necessary special guaranty of notice might bind the defendants. Bradley v. Railroad,
Exception overruled.
BLODGETT, C. J., and CHASE and WALKER, JJ., concurred.
Dissenting Opinion
1. It appears that the plaintiff, one of the defendants' servants, was directed by the defendants' "foreman in charge" to work in a trench from fifteen to twenty feet deep, leveling and tamping earth and stones which were being dumped into the trench by other servants of the defendants, by cartloads from above. The plaintiff could not see the loads from the trench where he was set to work. Warning to the plaintiff, as the loads were dumped, "was manifestly necessary to the plaintiff's safety." When the plaintiff was set to work in the trench, the foreman said: "You go down to work there. I will take care of you." It was accordingly the foreman's practice to warn the men in the trench when a load was to be dumped, and the plaintiff was accordingly notified by him of every load until the one in question. At the time of the accident, the foreman omitted the customary warning; and in consequence of the omission, the plaintiff, relying upon the warning, failed to notice the load of earth and stones, and was injured thereby. Upon these facts I think the plaintiff was entitled to go to the jury, and that the nonsuit was improperly ordered.
As an original question, viewed in the light of natural reason and justice, I think all will agree that, when a master, through his foreman in charge, orders a servant to work in a deep trench, *301 caring for earth and stones, which are being dumped into it from a point above and outside of the line of his vision, assuring him, by express declaration, as well as by previous practice of warning, and by the implication arising from the nature and necessity of the service, that he will be safeguarded by warning, he should be held liable to the servant, who, while proceeding with the work in accordance with the foreman's direction and in reliance upon such assurance and previous practice of warning, is injured by the neglect of the foreman to give such warning.
But it is suggested that this conclusion, so reasonable and just in the abstract, is not permissible in the present case, because, it is claimed, the neglect of the foreman to give the warning was the neglect of a fellow-servant, for which, according to the doctrine declared by Chief Justice Shaw, in Farwell v. Railroad, 4 Met. 49, announced in 1842 and since generally adopted in England and America, the defendants are not liable.
There is neither disposition nor occasion in the present case to question the soundness of the general principle underlying that decision; but when an extreme and uncalled-for application of it is urged, to the prevention of manifest justice, it is not improper to observe that the doctrine was announced with hesitation by the learned chief justice (Farwell v. Railroad, supra, 55, 61, 62); that it has been questioned and condemned by able writers and courts (Poll. Torts 94; Shearm. Red. Neg. (3d ed.), s. 86; Little Miami R. R. v. Stevens,
Accepting the doctrine of Farwell v. Railroad in its integrity, it has no application to such a combination of circumstances as conspired to produce the plaintiff's injury. There, an engineer was injured by the careless omission of a switch-tender to change the switch in his charge. The omission related to a mere detail of the service, after a reasonably safe place and safe instrumentalities had been provided by the master, and not to the fundamental duty of providing and maintaining a safe place in the primary and inherent sense. Again, the engineer was proceeding in the usual course, and not under the special direction of the master's foreman in charge, and in reliance upon his express assurance, as well as previous practice, of warning against the particular danger causing the injury. Finally, the switch-tender was the merest fellow servant in title and rank, as well as from the nature of the duty he was performing. He was not the master's foreman in charge, whose order the engineer was bound to obey, and at the time of the injury was obeying upon assurance, accompanying the order, that he would be taken care of — an assurance which, in the present case, could have no other meaning than that the servant would be warned. While the switch-tender, under the circumstances of the case, was held to be a fellow-servant for whose negligence the master was not responsible, it is noteworthy that the eminent jurist, after reaching this result, added the following significant words: "In coming to the conclusion that the plaintiff in the present case is not entitled to recover, considering it as in some measure a nice question, we would add a caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle. It may be varied and modified by circumstances not appearing in the present case." Evidently the so-called author of the doctrine did not understand that he was laying down a hard-and-fast rule, applicable to all cases. That his successors in the administration of justice have not so understood is evident from the limitation and development which the doctrine has undergone during the years which have followed. In the liberty which he invited, the principle has been since "varied and modified" to a great extent, and the process is still going on. It is no longer the doctrine that all employees of a common master in a common enterprise, excepting those charged with supreme control and management, like boards of directors, are fellow-servants, regardless of rank or service. Fifield v. Railroad,
In holding that the master in the present case discharged the manifest and admitted duty to warn the plaintiff by delegating it to the foreman in charge, and in citing to that effect the case of Wilson v. Merry, now so generally repudiated (Jaques v. Company,
The occasion for the warning did not arise from the transitory omission or commission of some fellow-servant. It was demanded by the nature of the work and the character of the place, as an original and permanent provision.
The danger to which the warning related was not a danger *304
which might or might not arise in the progress of the work — a mere detail of the service of dumping and tamping. Perry v. Rogers,
I am unable to follow the refinement of reasoning which seeks to distinguish, in respect to the master's liability, between instrumental and vocal warning, in other words, between the negligence of a servant in failing to keep an automatic contrivance in repair when that is the method of warning, and forgetting to cry out when that is the system adopted. Nor can I grasp the proposition that a warning necessary to protect a brakeman from collision with an overhead bridge relates to the safety of the place, while a warning even more necessary to protect a servant working in a deep trench, from the equally recurring and inherent danger of being buried alive beneath loads of earth and stones, is, somehow, a mere detail of the service.
To prove that the warning in the present case did not relate to the safety of the place, but only to a detail of the service, the court say: "So long as in the work of filling the trench no earth was thrown into it in the plaintiff's vicinity, the place where he *305
was at work was safe." The same may as well be said of the overhead bridge. So long as no cars run through it, it is safe. This proposition proves nothing. The whole confusion arises from failure to recognize that a warning necessary to make the place and service safe is something apart and distinct from the service itself. Belleville Stone Co. v. Mooney,
In Belleville Stone Co. v. Mooney,
In Gerrish v. Ice Co.,
In Evansville etc. R. R. v. Holcomb,
To the same effect, and directly supporting the proposition that the negligence of the foreman in the present case was the negligence of the master, are the following: Floettl v. Railroad,
Our own cases are entirely consistent with this view. Foss v. Baker,
Attention has been called to decisions of the supreme court of the United States, in support of the nonsuit in this case. Northern etc. R. R. v. Peterson, 162, U.S. 346; Martin v. Railroad,
The weight of reason, precedent, and analogy, as I view them, leads to the conclusions, that when, as is conceded in the present case, the place where the master directs the servant to work is such that warnings are necessary in order to make it reasonably safe, having reference to the service required, it is the duty of the master, in the exercise of ordinary care, to give such warnings; and this duty is no more dischargeable by delegation to competent servants than is the general duty, incumbent upon the master, to provide a reasonably safe place and appliances. In the performance of such duty the servant represents the master, and his negligence is the negligence of the master. We see no logical middle ground between this proposition and the general proposition, indorsed by some philosophical writers, but overwhelmingly rejected by courts, that the master's duty to the servant is in all cases performed when he has entrusted it to competent subordinates, and supplied the means and appliances reasonably necessary for the purpose.
2. While the conclusion reached would have been the same had the person to whom the duty of warning was delegated been common servant instead of the foreman in charge, it does not follow that the latter circumstance is unimportant in the present case. *309
On the contrary, with its associated facts it furnishes an additional and decisive reason why the motion for nonsuit should not have been granted. 51 L.R.A. 590, 591, 592, and authorities cited. The general rule, that the master's liability to one person in his employment for the negligence of another person in the same employment is to be determined by what the latter is doing rather than by the official character in which he is doing it, is not questioned. But while such is undoubtedly the general rule, the question of rank is not always and altogether without importance. Upon principle it seems clear that when, as in the present case, the master's foreman in charge, in the prosecution of the enterprise committed to his superintendence, directs a servant to do a particular work in a particular place, assuring him that signals indispensable to his safety will be given, such direction and assurance are the acts of the master; likewise, any neglect of the foreman in the giving of such direction, or in the fulfillment of such assurance. 48 L.R.A. 542-547; 51 L.R.A. 590. The assurance in the present case was an inseparable part of the order. It would have been implied from the nature of the case had it not been expressly given (Louisville etc. R'y v. Hanning, supra); also, from the previous practice. Belleville Stone Co. v. Mooney, supra. In fixing the responsibility for the injury, the command and assurance of the foreman, which were clearly acts of the master (Lintott v. Company,
In Taylor v. Railway,
With the reasoning of this case, if not with its application, our own decisions are entirely consistent. They fully justify its application to facts like those here. Foss v. Baker,
3. From the position in which the plaintiff was working, and by the foreman's order, the dumping of each load was a concealed danger in the truest sense. The cases all agree that it is the personal and absolute duty of the master to give warning of such dangers. Collins v. Car Co.,
4. It is considered by the majority that the defendants would have been liable if the foreman in the present case had "failed to make any provisions" for warning. It is difficult to see why the defendants should be less liable for the foreman's neglect of a practice which he had introduced than for neglecting to establish such practice.
5. It is also conceded that the defendants would have been liable if the foreman had been otherwise so engaged as to render him incompetent for the duty to warn. Was a foreman "in charge of a whole gang of teamsters and shovelers," with the cares and distracting duties incident to the general superintendence incumbent upon him, a competent person to discharge a special duty, upon the unfailing performance of which so much depended? Might fair-minded men differ on this question?
6. While the discussion on both sides has so far proceeded upon the theory that the master had provided that the foreman should give the omitted warning, and the conclusion herein reached is based upon that idea, it is worthy of note that no special provision for warning, either by rule, appointment, or otherwise, appears to have been made by the master. As the case stands, it may have been, and very likely was, the fact, that the warnings given were the voluntary undertaking of the foreman, in the exercise of his general power of superintendence. In this view the master would be liable, according to authorities conceded by the majority to be sound and cited by them. Cheeney v. Steamship Co.,
7. It appears to be generally accepted that the liability and exemption of the master rest upon implied contract. Poll. Torts 90. By no process of reasoning can the plaintiff be said to have impliedly contracted to assume a concealed danger against which the master's representative had expressly assured him he would be protected by warning, and against which he was powerless to guard by any vigilance of his own. On the other hand, a contract by the master to warn the plaintiff finds the strongest support in the manifest and conceded necessity for warning, the previous practice of warning, and the foreman's assurance of warning.
A. The plaintiff should have been permitted to go to the jury, and his exception should be sustained. *312