108 P. 588 | Mont. | 1910
delivered the opinion of the court.
This action was brought by plaintiff to recover damages for personal injuries received by him during the course of his employment by the defendant corporation in its mine in Silver Bow county, and while working under the direction of the defendant Ray, its foreman. The complaint alleges with much detail the circumstances surrounding the accident. It states substantially the following: That during the month of May, 1907, the plaintiff was in the employ of the defendant company as a machine man, competent to operate a compressed-air drill; that he was directed to work at a place in the mine, a particular description of which he cannot give, which had not been timbered ; that it was the duty of the defendants to furnish timber-men to timber such places as had been excavated during the progress of the work, and, when the timbermen failed to do the required timbering, to require the shifts of men who had made the excavations to timber them; that the defendants had failed to furnish timbermen and had failed to require the outgoing shift to timber the said place, and thus failed to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work; that the ground at the point where the plaintiff was directed to work was unstable and likely to cave and fall, from slacking upon exposure to the air, if jarred or shaken to the slightest extent; that, notwithstanding this fact, the defendants caused to be operated at various points on the same level upon which plaintiff was working several large compressed-,air drills in such close proximity to plaintiff that the blows struck by them against the walls of the mine shook and jarred the ground for a considerable space adjacent thereto, and particularly at the place where the plaintiff was working; that it was exceedingly dangerous to work at' that place after an excavation had been made and before it had been properly timbered, and the danger was increased by the operation of the drills, a fact not known to the plaintiff, but well known to the defendants; that the defendants carelessly and negli
Though counsel make three assignments of error, they all present the same question, to-wit: Did the court err in granting the motion for nonsuit? Before entering upon the examination of the evidence, we shall consider briefly the theory of the.
Section 5248, Revised Codes, declares: “That every company, corporation, or individual operating any mine, smelter or mill for the refining of ores shall be liable for any damages sustained by any employees thereof within this state, without contributing negligence on his part, when such damage is caused by the negligence of any superintendent, foreman, shift-boss, hoisting or- other engineer or cranemen.” The purpose and effect of this provision is to declare who among the agents and employees of the owner of a mine, or mill, or smelter, are to be deemed vice-principals for whose negligence the owner may be held liable to other employees, upon the principle embodied in the maxim, “respondeat superior”; in other words, to classify the employees by declaring who among them are vice-principals. In so far as it puts into that class employees who under the common-law rule were held to be fellow-servants because engaged with other employees in a common employment for a common purpose, it modifies the common-law rule that the master is not liable for injuries caused to an employee by the negligence of a fellow-servant. It creates a liability where none existed before its enactment by taking away a defense which was theretofore available to the master. In Kelly v. Northern Pacific Ry. Co., 35 Mont. 243, 88 Pac. 1009, this court discussed provisions of a statute having the same purpose and effect with reference to persons and corporations engaged in operating railways. (Revised Codes, see. 5251.) The cases in which were involved and determined questions touching the form of pleading, which must be adopted in order to state a cause of action under similar provisions, were examined. Following what we deemed the best reasoning upon the subject, the court, through Mr. Justice Smith, said: “In order to settle the rule in this state, we decide that, where a party relies for recovery upon a special statute creating a liability where none existed before, he must set forth in ordinary and concise language a statement of facts showing his right to recover under that statute.”
The facts established by the evidence are these: The plaintiff was employed as a machineman, but he was engaged with others in excavating a drift or tunnel on the 800-foot level of the defendant company’s mine. His duties included drilling, blasting, and, when the conditions required it, he had to do or to assist in doing the timbering necessary to furnish support to the ground as the excavation progressed. As soon as the excava
It thus appears that at the time he was injured the plaintiff' was not engaged in setting up his machine under the direction of the defendants, or either of them. He was engaged in making the place safe, so that he and his associates might be protected from the very peril from which he suffered the injury. His complaint is that the defendants failed to furnish timber-men to timber the place, and that he was directed to work there without knowledge of the conditions which actually existed; whereas, if it be assumed that Johnson was at the time acting in the capacity of vice-principal, the negligence which the evidence tends to show is that the plaintiff by reason of the assurance given him by Johnson that the ground was safe, neglected to take the precautions for his own safety which he otherwise-would have taken; in other words, he was, through the negligence of Johnson, induced to go into a place of danger, when otherwise he would not have done so. Thus it appears that the-evidence does not in any way tend to support the cause of action alleged. In personal injury actions, as in all others, the-plaintiff may recover only upon proof establishing substantially the cause of action alleged. (Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 Pac. 416.) Hence the motion for nonsuit was properly granted on the ground of variance. In referring-to the language used by Johnson, the shift-boss, we-use the term “assurance.” We do so in order to give it the construction.
The motion was also properly granted on the ground that the plaintiff assumed the risk. The evidence does not tend to show what the duties of Johnson were. The witnesses refer to him merely as “shift-boss.” This court has heretofore held that under the common-law rule a laborer • employed by and acting under the orders of a section foreman of a railroad is a fellow-servant of the foreman, and also of the engineer and foreman of a yard engine, and that he cannot recover for injuries suffered through their negligence. (Goodwell v. Montana Central Ry. Co., 18 Mont. 293, 45 Pac. 210; Hastings v. Montana Union Ry. Co., 18 Mont. 493, 46 Pac. 264; Mulligan v. Montana Union Ry. Co., 19 Mont. 135, 47 Pac. 795.) The same rule applies to a shift-boss in a mine, whose authority over his associates extends no further than to guide and direct them in the performance of the particular work in which he is engaged with them. (Allen v. Bell, 32 Mont. 69, 79 Pac. 582.) The only purpose of the legislature in enacting the Code provision, supra, was to work a change in this rule. If, in fact, Johnson was engaged in the performance of duties which could not be delegated by the company, he was a vice-principal; otherwise he was a mere fellow-servant of plaintiff, and any negligence of which he was guilty could not be imputed to the company. Under the view we have taken of the ease, however, the plaintiff cannot recover even if it be conceded that Johnson was a vice-principal.
The plaintiff, as a reasonable man, must have known of the existing conditions. He had been working there for seventeen and one-half days—not as a machineman, as he alleges, but as a miner. • His duties required him not only to make the place, but also to make it safe by timbering as the work of excavation progressed. When the shift-boss came to him, he was engaged in testing the ground to ascertain if it was safe. Having been directed to proceed with the timbering, with the assurance that the ground was then safe and having tested it further, he went to procure the timbers. He was away about three and one-half
Again, while under the general rule it is the duty of the master to use ordinary care to furnish the servant a reasonably safe place in which to work, and while this duty cannot be delegated to others so as to free the master from liability (26 Cye. '1321), in mining and similar industries, one of the necessary incidents of the employment of the servant is the making of the place in which he works. The conduct of industries of this character is dependent upon the doing of work which itself brings about the dangers to which the servant is exposed from time to time as it progresses. Either the mastei must himself do the work and personally assume all the attendant risk, or he must employ someone else to do it. Therefore the necessity of the case requires the servant, when he enters such
So far we have made no reference to the alleged connection of foreman Bay with the accident. The evidence fails entirely to connect him with it in any way. He was not present at the time. The shift-boss was not in his employ, but in that of the company. No négligence of which the shift-boss may have been guilty is properly imputable to him; for he was merely an intermediate agent who could not be held responsible except for the omission of some duty with which he himself was personally charged.
The judgment and order are affirmed.
Affirmed.