34 Colo. 37 | Colo. | 1905
delivered the opinion of the court.
1. The doctrine of safe place is foreign to this case. Where, as here, the place of work is not permanent, or has not been previously prepared by the master as a place for the doing of the work, or where the servant is employed to make his own place to work in, and the place is the result of the very work for which the servant is employed, or where the place is inherently dangerous and necessarily changes from time to time as the work progresses, the doctrine contended for has no application. — City of Greeley v. Foster, 32 Colo. 292.
The instructions given by the court upon this branch of the case were therefore wholly inapplicable to the facts, and, aside from being not pertinent, were wrong in that defendant was thereby made an insurer of plaintiff’s safety in this respect, whereas the duty in a proper case is only to make the place of work reasonably safe.
2. Plaintiff’s theory, which seems to have been adopted by the trial court, was that Johns was the vice principal of the defendant, for whose negligent acts, without regard to their character, the defendant was absolutely liable. Under some authorities, the facts disclosed by this record would not make Johns a vice principal in any aspect, but only a fellow servant of the plaintiff; but, for our present purpose, and without deciding the point, we may safely assume that he was a vice principal of defendant with respect to all of the positive or absolute duties which devolved upon the defendant as a master. But it does not follow that a master is liable for every negligent act of one who, in these respects, is his vice principal. As to some of his acts, one may be a vice principal of the master, and as to other acts a fellow servant. Plaintiff avers' in his complaint that, had
Had not Johns, therefore, made this inspection, plaintiff would have had no cause of complaint against the defendant because, if there was any negligence in not discovering the missed hole, it was the negligence of his fellow workmen in the previous shift, or of himself and Bryant, his helper, or the joint negligence of both shifts. If Johns was the vice principal and, as such, the alter ego of the master with respect to all its positive or absolute duties towards its servants, he might, as we have said, as to other duties which might be delegated, act as a fellow servant. But the particular contention here is that because Johns, the defendant’s foreman, made an examination of the hole in the bench near the bottom of the winze, and reached the conclusion that it was not a missed hole, and told plaintiff that it was safe, and ordered him to- sink the same deeper, plaintiff thereby was relieved of the duty of making any examination for himself, and might follow the orders of the foreman without assuming any risk
In Deep Mining Co. v. Fitzgerald, 21 Colo. 533, it was said that the test of liability of the master for the negligence of the servant is the character of the act rather than the relative rank of the servant. The same rule is expressed in D. & R. G. R. R. Co. v. Sipes, 23 Colo. 226, 231, in the statement that the specific act in connection with which the negligence occurs is the criterion by which the liability of a master is fixed, rather than the rank of the servant who performs the act. The rule is well illustrated in Molique v. Iowa G. M. & M. Co., 18 Colo. App. 223, where the court, speaking by Gunter, J., held that the alleged act of. negligence was that of a fellow servant because it occurred, in the operation of the enterprise in which the defendant was engaged, and not in the construction, prosecution, or management of the plant by means of which the enterprise was carried on. Under the rule which prevailed in this mine of which plaintiff had knowledge, and which he sets up in his complaint, it was not an abosolute duty of the master or the vice principal to inspect the place of work to see if it was safe. On the other hand, the duty was one which could be, and was, delegated. When the three workmen were in the winze, all of them saw this hole. Its presence furnished at least some evidence of a missed shot. If we assume that it was then the duty of Johns to make a careful examination, it certainly was equally the duty of the plaintiff to take the same precautions for his own safety. The examination was made in the presence of plaintiff, and he was as competent a miner, and knew as much of the danger of the work in which he was engaged, as Johns. If Johns failed to use ordinary care in examining this hole, or if he should have done something more than he did, we are not advised
The situation was this: To three experienced miners present in the winze, one pf whom, in the presence of the others, inspected the same, which inspection was satisfactory to all, the place seemed a safe one in which to prosecute further work. And even if the duty of inspection was an absolute duty of the master, when the inspection which was made was satisfactory to three experienced miners, one of whom was the plaintiff himself, it is difficult to see how there could be any liability of the master for injuries resulting to either one who acted in accordance with the common belief.
3. Plaintiff seeks to evade the application of the doctrine just announced by insisting that what he calls the interference of Johns withdraws this case from it. His argument is, that though it would have been his duty to examine this hole for himself had not Johns interfered, when Johns did take it upon himself to make the examination, there was no further obligation upon the part of the workmen of the mine to make the examination for themselves. A sufficient reply is that, even if Johns were the vice principal, he could not, in performing the work of a mere fellow servant, which this inspection was, re
Plaintiff knew that explosive material put in drilled holes does not always explode “when fired,” and as to whether or not the particular hole examined was or was not dangerous was or might have been as well known to him as to Johns. Whether the defect or danger was a latent or patent one, it was as obvious to him as to Johns, and he had 'ample time and opportunity to make the place of work safe. In short, if Johns was negligent in making the examination, plaintiff was equally culpable in not making one for himself. On the other hand, if Johns exercised due care and caution in what he did to discover the danger and failed, certainly defendant cannot be liable even if plaintiff was relieved of the duty of
4. Intimately connected with if not essentially included in the two foregoing points, but separately argued by counsel, is the contention that plaintiff was protected by his obedience to the foreman’s commands. The discussion of it involves more or less repetition, but as plaintiff confidently relies upon it, we give it separate and further consideration. The general rule is, that the servant’s duty is to obey the orders of his master, and ordinarily he will be excused if he complies therewith. Invoking that doctrine, plaintiff says that when the foreman ordered him to sink the hole deeper,, he was bound at the peril of discharge, to obey. The doctrine, however, is wholly inapplicable to the facts of this case. The mere order to do this work does not, of itself, constitute negligence. The work of drilling was the same in kind as that which the plaintiff under his contract was required to do. He was not, as we have said, suddenly called upon to obey an order of his master to go into a dangerous place, or to engage in a dangerous work, without an opportunity upon his part to investigate the place or character of the work, he being ignorant, and the master aware, of its real nature. He was a miner of twenty-one years ’ experience, of ordinary skill and intelligence, knew the usual dangers to be apprehended in prosecuting work of this kind, and saw the hole in which the danger
Plaintiff was not requested, or directed, to fore-go, or omit, any examination for himself, and no act or omission of the foreman increased, or added to, the danger of the work; but, if it did, plaintiff’s own voluntary omission contributed to that injury, and, in either event, there can be no recovery.
We have not specifically considered all the errors argued, as the foregoing discussion sufficiently disposes of the case. • Our views upon the vital questions which we have discussed are at variance with those entertained by the district court; hence its judgment must be reversed. In addition to the authorities already cited, and in support of our conclusion, see Haas v. Balch, 6 C. C. A. 201; McQueeny v. Chicago etc. Ry. Co., 120 Ia. 522; Browne v. King, 100 Fed. 561; Anderson v. Daly M. Co., 15 Utah 22; B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 384; N. E. R. R. Co. v. Conroy, 171 U. S. 384; Harris v. Balfour Quarry Co., 131 N. C. 553; Christienson v. Rio Grande W. Ry. Co., 27 Utah 132; Lenderink v. Village of Rockford, 98 N. W. (Mich.) 4; Fort Worth etc. Co. v. Whittenburg, 78 S. W. (Tex.) 363; Lack v. Burnham, 134 Fed. Rep. 688; Van Derhoff v. N. Y. C. & H. Riv. R. R. Co., 84 N. Y. Supp. 650; Smith v. Hecla M. Co., 80 Pac. 779.
Notes to cases in Tedford v. Los Angeles Elec.
Reversed.
Chief Justice Gabbert and Mr. Justice Steele concur.