62 Neb. 180 | Neb. | 1901
As a large part of the discussion in this case will relate to instructions given and refused in which the plaintiff in error is called defendant and defendant in error is called plaintiff, the parties will be designated in the same manner here as at the trial below.
It appears that the plaintiff, Baldwin, in September, 1896, was employed by the defendant electric light company as a “lineman”; that he worked under the immediate supervision of a foreman, one James Brinkman, and that he was directed by such foreman on the morning of September 9, 1896, to remove the arc lamps on Sixteenth street, in Omaha, in connection with another workman, who is described as a “groundman.” Plaintiff’s duty was to ascend an extension ladder placed against the sustaining wire of the lamp, taking with him a rope, put the latter over the sustaining Avire, attach it to the lamp, and the “groundman” let it down by paying out the rope. They had reached the point on Sixteenth street opposite the alley between Harney and Howard streets when the foreman, Brinkman, arrived, ordering the other workman to another service, and himself engaged in assisting p1 aintiff in the removal of the lamp. There is some discrepancy in the testimony as to the precise occurrence, plaintiff’s evidence indicating that Brinkman assisted in bringing up the ladder and adjusting it for the removal of this last
An examination of our own cases seems to justify the trial court. There are widely different views as to what renders an employee such a vice-principal as.to take his acts out of the rule that an employee assumes the risk from negligence of his co-employees. The English cases seem to hold that there is practically no such doctrine of viceprincipalship; that there are absolute duties resting upon the master whose non-performance, either by himself or by some one else, will render him liable. They are, apparently, a duty of providing reasonably safe materials and appliances, which'is a continuing duty involving reasonably frequent inspections; the duty of providing a reasonably safe place to work and the duty of giving, or providing for, reasonable instructions to inexperienced employees placed in dangerous positions. These duties being discharged, any injury that arises in operation of the work out of negligence of employees imposes no liability upon the master. The English rule has been adopted in many of the states with the proviso that, where the performance of any of these absolute duties is delegated to third parties, those parties become, as to these duties, vice-principals, and their negligence in respect to such duties is the negligence of the principal. Of this view of the principal’s liability the courts of Massachusetts have been strong exponents, manifestly under the influence of Chief Justice Shaw, in
In Burlington & M. R. R. Co. v. Crockett, 19 Nebr., 138, Crockett had been ordered by the foreman in charge of a wrecking train to clear the dirt away around a car which had been derailed by a fall of earth from a high bank; no watch was kept to notify men shoveling below when a fall of dirt was likely, and for the foreman’s negligence in that respect the company was held liable.
In Sioux C. & P. R. Co. v. Smith, 22 Nebr., 775, a section foreman had directed a workman upon his hand-car to hold to the rear of a freight train in riding back from work and when the freight train threatened to acquire too high a rate of speed for safety to the hand-car and its occupants, directed him-to let go, and at the same time applied the brake' to the hand-car, but his order was not heard, and the man holding to the rear of the freight train was injured. A jury having found that this was negligence, it was held that it was the act of a vice-principal and that plaintiff could recover.
In Crystal Ice Co. v. Sherlock, 37 Nebr., 19, where defendant’s foreman had ordered an employee to loosen one of the ice blocks which had stuck fast in the chute, and while plaintiff was doing this, without warning, let down another heavy piece of ice, it was expressly held that the employer was liable for the foreman’s negligence in dropping the second piece of ice upon the plaintiff, and could not shelter itself behind the proposition that in, handling the second piece of ice the foreman was not exercising any power or duty of supervision.
In Hammond v. Johnson, 38 Nebr., 244, a co-servant, whose duty was to assign to others horses for use in defendant’s employment, was the vice-principal with respect to one to whom he had assigned a vicious horse, and who was injured in consequence of it, because “his language was the language of one in authority.” He told the plaintiff he could take that horse or quit work.
In Union P. R. Co. v. Doyle, 50 Nebr., 555, the latter was a section-hand under the control of a foreman, and the court holds that by virtue of the fact that Doyle was under the direction of a “foreman, who superintends, manages, controls and directs when, how and where the work shall be done, this foreman is not made by the rules of the railroad company a fellow servant with the men under his direction, but he is responsible for his conduct to the road-master. * * * We are not prepared to adopt the doctrine that an employee, to become a vice-principal as to his co-employee, must be the ‘chief of a separate and distinct
In Clark v. Hughes, 51 Nebr., 780, the answer contained the admission, “on the 16th day of January, 1891, the above named plaintiff was in the employ of defendants as brakeman on freight train No. 16 bn said road, and that said train was under the control of conductor E. W. Meyers.” The court, having referred to some of the above cases, adds: “Under the authorities just cited, the admission. in the quotation just made obviated the necessity of proof to establish the relation of servant and vice-principal as between the brakeman and the conductor.”
From the foregoing cases it seems clear that whatever may be the rule elsewhere, in this court the liability of the employer for the actions of a vice-principal grows out of the fact that he is directly intrusted with authority; that the movements of those under him are directed by him, and that he is held to be the direct representative of his principal. If in Clark v. Hughes, supra, the mere admission of the fact that the party in fault was conductor was sufficient to do away with all proof that he was a vice-principal, it would seem in this case that the same effect should be given to the admission that the party in fault was foreman, and to the uncontradicted evidence of his authority, and that the court was warranted in instructing that he was also a vice-principal. If this is conceded, we are of the opinion that all the other claims of error in this case fall to the ground with this one. Of course, if the learned trial judge was warranted in instructing that this foreman Avas a vice-principal, he was warranted in rejecting all instructions draAvn from the point of view of his, being anything else.
We do not find any prejudicial error in the instruction that the burden of proof to show contributory, negligence is on defendant, unless it appears from “plaintiff’s own testimony.” This expression does not seem to us fairly to mean, or likely to have been taken to mean, testimony
The third claim of error is in instructions 18 and 14, endeavoring to apply to this case the rule that contributory negligence would not prevent recovery if reasonable care on the part of defendant would, after the discovery of such-negligence of plaintiff, have prevented its consequences. These two instructions were apparently intended to inform the jury that if they found plaintiff negligent in going up an insufficiently extended ladder, still, if Brinkman loosened the rope after plaintiff was up and Brinkman knew it and such act of Brinkman’s caused the injury, plaintiff could recover, if at that moment exercising due care. This was correct, if we find the act of Brink-man in taking off the lamp and loosening the rope the act of the employer. It was not correct if we allow Brinkman a dual capacity, a vice-principal when giving directiofis, and a mere fellow workman when taking off the lamp. There are many authorities for such a distinction and for a dual capacity of vice-principal and workman on the part of one who both directs and assists. A notable recent case is Barnicle v. Connor, 81 N. W. Rep. [Ia.], 452; Crispin v. Babbitt, 81 N. Y., 516, is another. Generally they will be found to be rendered by courts which adopt the restricted rule that vice-principalship depends upon the delegation of absolute duties. It is a doctrine that is evidently not compatible with the decisions in Sioux C. & P. R. Co. v. Smith, Crystal Ice Co. v. Sherlock, Burlington & M. R. R. Co. v. Crockett and Chicago, St. P., M. & O. R. Co. v. Lundstrom, ut supra. In each of these cases the defendant, employer, was held liable for imputed negligence, on the part of one to whom supervision and direction were intrusted, in respect to other matters than the mere giving of such directions. In this state it is
For these reasons it is recommended that the judgment below should be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.