44 F. 564 | U.S. Circuit Court for the District of Minnesota | 1891
(after stating the facts as above.) At the close of the evidence defendants’ counsel requested the court to direct a verdict for the defendants. The court overruled the motion, and the defendants took-an exception. Upon the argument of the motion for direction at the trial, a number of points were made by counsel for the defendants. Without abandoning those made at the trial, only two propositions were argued and presented on this motion: First, that Peterson, the boilermaker in charge of the work, had no express or implied authority to furnish or provide rope and tackle or other appliance for raising the intake when he found that the rope and tackle which he had used had been taken away, and that in borrowing, providing, and rigging up a defective rope and tackle, without instructions from the defendants, and without informing them that the other had been taken away, he was acting as a fellow-servant of the plaintiff; second, that the plaintiff was guilty of contributory negligence in using his hands in removing the stones and dirt, instead of a stick or some other implement.
The second proposition clearly cannot be maintained. The evidence does not present such a clear case of contributory negligence as would warrant the court in taking the case from the jury. The court could not say, in view of the facts and circumstances of the case, that the plaintiff’s injury substantially resulted from a danger in using his hands to remove the stones and dirt that was so obvious and threatening that a reasonably prudent man, under similar circumstances, would not have so acted. Different minds might honestly draw different conclusions from the facts. Railroad v. Stout, 17 Wall. 657. The plaintiff had worked under the control of Peterson for several days. Nothing had occurred to indicate that he was not a careful and competent man. He had been with him and worked with him before he commenced to work upon this intake. The intake had been raised to remove the uprights ■and lowered safely under Peterson’s directions. It was dark in the place where the plaintiff was at work, and he was directed to act and remove the stones when the intake should be raised; and in obedience to orders he immediately entered upon the discharge of his duties without any appehension of danger. I think it was proper to submit this question to the jury. Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. Rep. 16.
The first proposition presents a more serious question. Upon well-settled principles of law the master is bound to use all reasonable care •and precaution for the safety of those in his service by providing them
The court charged the jury as follows in respect to this question:
“In this ease it was the defendants' duty towards the plaintiff to use reasonable and ordinary care and diligence to see that the tackle used in hoisting the intake was safe and sufficient for that purpose. It was the personal duty of tiie defendants to furnish a. reasonably safe and sufficient tackle. If they failed to furnish such reasonably safe and sufficient tackle, they were guilty of negligence, and if, by reason of such failure on their part, plaintiff was injured, without fault on his part, he is entitled to recover in this action. if you find from the evidence that the defendants left the work in question in charge and control of the bpiler-niaker Peterson, and left it to him to find and provide the necessary tackle, and lie, in providing the tackle to hoist the intake, was guilty of negligence, either in having too short a chain, or in using a rope which was unsafe, unsound, worn out, and insufficient for lifting tiie weight, such negligence on his part would be the negligence of the defendants, for the consequences of which they would be responsible to this plaintiff. Ln that connection you will see that 1 have left you to find whether or not the defendants authorized the boiler-maker .Peterson to furnish and provide this tackle and rope and apparatus. That is left to you. If they did not authorize him to do so, within the rules which L shall give you; if he had no authority, either direct, or which you may infer from the testimony, but he found this tackle and used it himself as a voluntary act on Ins part, without authority from the defendants, — then the defendants would not be liable for his negligence in furnishing it. If would bo the negligence of a co-servant, and the plaintiff could not recover in this action. So you must determine the question from the evidence, under the rules which I will give you*572 further along, whether or not he was authorized to find and provide the necessary tackle with which to raise this intake. This is a question of fact that is submitted to you.” •
The case of Wilson v. Quarry Co., (Iowa,) 42 N. W. Rep. 360, cited and relied upon by defendant’s counsel on this motion, is distinguishable from the case at bar. In that case there were no facts from which any inference could be drawn that Horner, who rigged up the defective appliance, had any authority whatever in respect to the machinery. The defendants undertook the construction of a double tramway down the incline, for the purpose of running cars thereon to carry off the strippings and other refuse of the quarry down in the direction of the Des Moines river, where it was to be dumped from the cars. Before the work of constructing the tramway was completed, one Stuart, who ivas the superintendent of the quarry, went away temporarily. During his absence the force of men at work in the quarry rigged up a tackle and snatch-block fastened to a tree to let down loaded cars. One Horner, an employe, who was below, called up to plaintiff to go on top of the hill and get a scraper. The plaintiff brought the scraper to the upper end of the tramway, put it on one end of a car, and he and another party got onto the car and commenced to make the descent. When the weight of the car came upon the tackle rigged and fastened to the tree, the pin in the snatch-block broke, the cars descended the Incline at a great speed, which resulted in their jumping from the track and greatly injuring plaintiff. The action was founded upon the alleged negligence of defendants in using defective and dangerous machinery and appliances, by reason of which the plaintiff was injured. The defendants, in their answer, denied that any defective machinery or appliances were in use by its order, etc. It appears that Stuart was the superintendent, and in charge of the quarries, and that one Washer was the foreman under Stuart, and that he was also absent at the time, but that Horner ivas an employe, who worked where he ivas directed. He sometimes gave directions to other employes in regard to work in which they were engaged, and he had charge of the tools, and kept the time of the men. There ivas no evidence that Horner had been invested with authority respecting the work on hand, or that he had any authority to cany on the work, in the absence of the superintendent and foreman. The court, speaking by Rothrock, J., says:
“It is not claimed that the defective snatch-block was put in position for use by the direction of the superintendent, nor by Washer. It is claimed, however, that, as both were absent, Horner acted in the place of the superintendent, or, in other words, acted as and for the defendant, and that the snatch-block was used by his direction, and the jury all through the instructions given them by the court were charged upon the theory that there was evidence from which such a finding could be-made. We do not think these instructions were proper under the evidence, * * * because there is no evidence that-Horner had authority to direct what machinery or appliances should be used. He had neither the authority of selecting nor the power to put machinery in place, and we may say, further, that there is no sufficient evidence that Horner had any agency whatever, in fact, in putting the defective snatch-block in use.”
The case of Fetch v. Allen, 98 Mass. 572, cited by the defendant, is not applicable. A brief statement of the case, and a single extract from the opinion, is sufficient to distinguish this case. The defendants were transferring their chair factory from the basement to the attic. Plaintiff and one Hussey, common laborers employed by defendants, were directed by the foreman to move the stock. They carried up several loads of chair-stuff in baskets, when Hussey proposed that in order to relieve them from all fatigue in going up and down stairs they should use the elevator, which ran from the basement to the attic. It was an unsafe elevator, and the rope by which it w-as raised and lowered was worn and defective. The rope broke while plaintiff and his co-laborer were so using it, and the plaintiff was injured. It was not used by order of the foreman or defendants, and they did not know that it was being used. It was not provided for their use, and it was not necessary to use it. The plaintiff and the other co-laborer used it simply for their own convenience, and without the knowledge or authority of the defendants or their representative. On page 574 of the opinion, Hoar, J., says:
“The case, then, is simply this, that two servants of a common master are employed upon the same work; that one of them, without authority from his master, directs the other to use a machine for a dangerous and improper purpose, for \Vhich it was not intended and provided; that he complies, and receives an injury. There is no principle of law which will make the employer answerable for the damages in such a case.”