170 P. 757 | Mont. | 1918
delivered the opinion of the court.
About July 9, 1913, Peter Morelli, a workman employed by Twohy Bros. Company (a corporation) in driving a tunnel on the line of the Chicago, Milwaukee & St. Paul Railway, was injured while in the discharge of his duties. He brought this action to recover damages, but at the conclusion of his testimony the court granted a motion for nonsuit, withdrew the ease from the jury, and rendered judgment dismissing his complaint. From an order denying him a new trial, plaintiff appealed.
On motion for nonsuit every fact is deemed to be proved which
The plaintiff is a foreigner whose broken English is most difficult to understand. His testimony covers more than fifty pages of the transcript and requires a critical analysis to determine its effect. From the unequivocal statements of the witness and from the inferences fairly deducible from his testimony in its entirety, we find these facts:
If we assume that while engaged in manual labor in setting
“What’s in a name? That which we call a rase
“By'any other name would smell as sweet.”
His status as fellow-servant or vice-principal does not depend upon his lowly or high-sounding title, but upon the character of his service. (Gregory v. Chicago, M. & St. P. Ry. Co., 42 Mont. 551, 113 Pac. 1123.) It is unfortunate that courts and text-writers should confuse the law by assuming to state as an abstract proposition' that a foreman or shift boss is a fellow-servant of the men working under him. He may be a fellow-servant while he is performing acts of the common employment, as distinguished from acts which it is the duty of the master to perform; but no matter how menial his services, whenever he is required to perform a primary duty of the master, he becomes the master’s alter ego for the performance of such service. In the absence of anything to indicate the contrary, it will be presumed that the duties which the foreman performed were the duties which his employment imposed upon him. The principal duty performed by him with which we are now concerned was directed to making reasonably safe the working place for the men engaged in setting the timbers. ■ If this was a primary duty of the master, the person to whom its performance was delegated was pro hae vice the alter ego of the master for whose negligence
There is not any controversy over the rule affecting the master’s duty to exercise reasonable care to furnish Ms servant a
In 3 Labatt on Master and Servant, section 924, in speaking of these broad statements which at first blush seemingly suspend the rule in so large a percentage of negligence cases, the author says: “But it cannot be intended to concede tMs unqualified immunity to the master. Such a view is expressly repudiated in many cases and impliedly in many others.” Among the eases referred to is Allen v. Bell, 32 Mont. 69, 79 Pac. 582, wherein liability was held to attach, notwithstanding the place of work was changing constantly by the efforts of Allen and Ms cowork
Whatever other courts may have intended by their use of such general language, the confusion in this state has arisen over the unfortunate form of expression, rather than over the principle intended to be stated; but, even if a reversal of our former decisions upon this point is necessarily involved, we content ourselves with saying that it is more desirable that the court be right than that its decisions harmonize in all respects.
It is to be remembered that we are now considering a common-law action, and that the safe-place rule is a rule of the common law. The common law makes no such exception in the application of the rule, and the courts are without authority to do so.
The employer is not an insurer of the safety of his workmen. He is required to exercise only ordinary care to provide for them a reasonably safe place for work, a place as reasonably safe as is compatible with its nature and surroundings. (Masich v. American Smelting & R. Co., 44 Mont. 36, 118 Pac. 764, 2 N. C. C. A. 101.) But what is ordinary care in one instance may be gross negligence in another. The degree of care which would insure absolute safety to a workman employed in a tunnel driven through solid granite might make a veritable death-trap of a tunnel in loose rock or earth. The degree of care commanded by the rule is measured by the danger to be anticipated, the risk to be incurred, and the opportunity available for securing the workman’s safety. A reasonably safe place presupposes such a condition as ordinary care, skill and diligence will secure under all the surrounding circumstances. The presence of constantly changing conditions in the working place does not operate to suspend the rule. It may vary the effects of the master’s care, but it cannot operate to relieve him of all responsibility. His duty is not altered, but the degree of care required of him with reference to a completed place will be modified to the extent that the changing conditions wrought by the workman lessens his opportunities under the rule and increases the assumed risks of the servant.
The observation of the court in the Gregory Case cited above
The servant assumes the ordinary risks of his employment (sec. 5243, Rev. Codes), and though it may be conceded for the
The facts of this case are somewhat peculiar. The plaintiff was engaged in a dual capacity — as miner and as timberman. Between the performance of these distinct duties, the master intervened and undertook the discharge of his primary duty to render reasonably safe the working place for the timbermen who followed in the wake of the miners, and the rights of this plaintiff as a timberman are not to be prejudiced by the fact that as a miner he was a factor which possibly and probably caused to be loosened the very rock which fell upon him. It would be a
We think the plaintiff made out a prima facie case of actionable negligence.
It was a question for the jury to determine whether under all the circumstances the foreman exercised reasonable care to provide for the plaintiff, as a timberman, a reasonably safe place for his work.
The order is reversed and the cause is remanded for a new trial.
Reversed and remanded.