Shannon v. Consolidated Tiger & Poorman Mining Co.

The opinion of the court was delivered by Mount, J. This is an action for damages arising out of personal injuries which were received by and resulted in the death of Joseph Shannon, husband of the plaintiff Jennie O. Shannon, and father of 'the minor plaintiffs above named. The injury occurred in a mine of defendant at Burke, Idaho, on February 14, 1898, by an explosion of dynamite. The deceased, Shannon, was engaged' as a miner, on what is termed a “shift,” with three others, in sinking a perpendicular shaft in defendant’s mine. This shaft was six feet wide north and — 124 — south., by fifteen feet long east and west, and about forty feet below the level, fifteen hundred feet below the surface. Engaged in this work were three eight-hour shifts, consisting of four men each. One of the men comprising each shift was what was called a “boss” or “pusher,” who had general direction of the work of his shift, directing the men where and how to work, and furnishing materials, tools,' and supplies, and who did the same work as his fellows. The shift of which deceased was a member consisted of Murphy, Shannon, Eobinson, and Cassidy; Murphy being the boss or pusher. The next shift consisted of Berg and three others; Berg being the boss or pusher. The other shift consisted of Bray and three others; Bray being the boss or pusher. Each shift was known and designated by the name of the boss. The Murphy shift began work each day at 7 a. m. and quit at 3 p. m. The Berg shift began at 3 p. m. and quit at 11 p. m. The Bray shift began at 11 p. m. and quit at 7 a. m. On the 13th day of Eebruary, 1898, the Murphy shift, in the discharge of their duties, had drilled with machine drills seventeen holes in the bottom of the shaft to the depth of about six feet, leaving one hole undrilled. The drilling of this hole would have completed that portion of the work. The succeeding shift, known as the “Berg shift,” completed the drilling of this hole, and loaded and discharged all the blasts except one in the east end, which failed to explode, leaving what is termed a “missed hole.” By rule established by custom in the mine, it was the duty of the boss of the off-going shift to notify the on-coming shift of any missed holes or other dangers. When the Bray shift came on duty, the men were notified of the missed hole above mentioned. This shift cleared out the debris caused by the blasting done — 125 — by the previous shift. The Murphy shift came on duty again sixteen hours after they had left the bottom of the shaft as above described. The evidence in the case is contradictory as to whether or not the Murphy shift was notified of this missed hole, which had remained through the work of the two preceding shifts. The Murphy shift came on duty at Y a. m. on the 14th of February, and found loose rock and debris yet remaining in the shaft, in which water had also accumulated. A pump used in removing this water was out of repair, and much time was taken in clearing the water from the bottom of the shaft. After the water was cleared out, Murphy and Shannon were working in the east end of the shaft and their co-laborers, Kobinson- and Oassidy, on the west end thereof. A short time before the expiration of the eight-hour time of their shift, and while Murphy and Shannon were clearing up the said debris, Murphy working with pick and Shannon with the shovel, Murphy in some manner discharged said missed blast, which killed both and wounded Kobinson, working on the other end, some ten or twelve feet away. Upon the trial of. the case before a jury a verdict was returned in favor of the plaintiffs for the sum of $20,000. Judgment was subsequently entered thereon, and appeal taken to this court. Motion is made to dismiss this appeal for the reasons that the notice of appeal is insufficient, and that the undertaking on appeal was filed prior to the notice of appeal, and does not describe the judgment appealed from, and does not name an obligee. The notice of appeal, omitting the formal parts, is as follows: “You will please taken notice that the defendant in the above entitled action hereby appeals from the judgment made and entered herein against the defendant on the — 126 — 24th. day of July, 1900, to the supreme of the state of Washington, and from the whole and every part thereof.”. Said notice was served on the attorneys for the respondents on the 24th day of August, 1900, and was filed with the clerk of the lower court on the next day.' Under our liberal statutes relating to notices of appeal this notice is sufficient. Roberts v. Shelton Southwestern R. R. Co., 21 Wash. 427 (58 Pac. 576); Laws 1899, p. 79, § 1. The judgment in this case was signed by the judge of the lower court on the 16th day of July, 1900, and was filed and entered by the clerk on the 24th day of July, 1900. There was but one judgment in the case. The undertaking on appeal was filed on August 25, 1900, and describes the judgment as having been made on July 16th. Under § 6505, Bal. Code, the appeal bond may be filed with the clerk “at or before the time when the notice of appeal is given or served.” The notice of appeal was given on the 24th day of August, 1900, and filed the next day. The undertaking is an appeal bond and supersedeas, and undertakes “that the appellant will satisfy and perform the judgment appealed from.” Both the notice of appeal and bond were sufficient. The motion will be denied. ■ 1 ' Some days before the cause was called for trial defendant filed and argued a motion for a continuance, which motion was denied by the trial court, and this ruling is claimed by appellant as error. Defendant did1 not save an exception to the ruling of the court denying this motion for a continuance. We are of the opinion that the motion was properly denied, for the reason that' the evidence sought to be obtained, and on account of the absence of which the motion was made, was not set out' in the affidavit, no showing was made that the witness: — 127 — named would be present at tbe trial, and no showing that the witness could be found, or that his evidence would be produced at the trial. ■ The next error complained of is that the court erred in permitting the case to go to the jury because the appointment of Jennie C. Shannon guardian ad litem was void, for the reason that both she and the minors were at said time residents of the state of Idaho. The record discloses that at the time of the commencement of the case the court, upon motion and affidavit showing the existence of the cause of action and the infancy of the plaintiffs, Earl B. and Myrtle M. Shannon, the non-residence of the plaintiff and the said minors, and that said minors had no regularly appointed guardian, made an order appointing the said Jennie C. Shannon, the mother of the infants, their guardian ad litem for the purpose of bringing the action. This application was made ex parte and without notice to the defendant. Defendant thereafter appeared and filed a motion for security for costs on account of the non-residence of the plaintiffs. The motion was granted and a cost bond filed. Defendant thereafter appeared and denied the appointment, on information and belief, and objected to the said appointment on the ground that the court was without jurisdiction to mate it. Counsel do not call to our attention any case directly in point upon the question here,but cite the case of De La Montanya v. De La Montanya, 112 Cal. 131 (14 Pac. 351), in support thereof. While this case is not directly in point, it seems to support the opposite view from that which it was cited to support. That was a divorce case, where the father had taken his children out of the jurisdiction of the California courts. The mother had obtained a decree of divorce, and then brought an independent action for. the custody of the — 128 — children, and had a third party appointed guardian ad litem. This guardian ad litem appeared in the action and admitted the allegations o'f the complaint. The defendant did not appear in the case. Subsequently the court entered judgment as prayed, and, among other things, awarded the custody of the children to the plaintiff, and required defendant to bring the children into the state of California and surrender them to the plaintiff. Defendant afterwards applied for an order vacating this decree because the court had no jurisdiction to make it. This application being denied, an appeal was taken and the cause reversed. The appellate court said: “Jurisdiction to appoint a guardian for infants, under the American system, is entirely local. I do not doubt that the mere presence of infants within a jurisdiction is sufficient to confer jurisdiction, although they may be residents of another state. But as such jurisdiction is always exercised for the good of the child, the courts would never allow the power to be used for purposes of oppression, or to prevent an infant temporarily within its jurisdiction from being taken away, when its best interests required it, to its more permanent residence. The jurisdiction is never used except when necessary for the good of the child.” The other authorities cited in support of the contention are upon the question of guardians in probate matters. Clearly, in matters of this kind, the guardian must be appointed upon petition therefor showing property in the state, and a bond must be given. Bal. Code, § 6395 et seq. Section 6410, Bal. Code, under the title “Guardianship of Infants,” expressly provides as follows: “Uothing contained in this chapter shall affect or impair the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or — 129 — matter pending therein, or to commence and prosecute any suit in his behalf.” Under the title “Parties to Actions,” § 4832, Bal. Code, provides: “When an infant is a party, he shall appear by guardian, or if he has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act. Said guardian shall he appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he he of the age of fourteen years, or if under that age, upon the application of a relative or friend of the infant.” No bond is required in cases of this kind, and there is no provision in our statute requiring a guardian in cases of this kind to be a resident of the state. We cannot hold that an infant, being, with its parent, a resident of another state, having a joint cause of action existing in its behalf in this state, to which its parent is a party, cannot, by reason of the fact of its non-residence, petition the court to appoint snch parent a guardian ad litem to maintain that action, especially when such parent is a party plaintiff and has, by bringing the action, subjected herself to the jurisdiction of the court, and is, in fact, with her wards, within the jurisdiction thereof at the trial when objection is first made, and where the infant itself is plaintiff. The next error complained of is that the court erred in giving to the jury the following instruction: “Now, gentlemen, I charge you that a fellow servant or fellow servants are those who are working together in a common employment to a common end, under the master or principal. Persons working together in a common general employment may he fellow servants with regard to that general employment, and yet it might be under the circumstances that one of them could be a principal or master with regard to some particular part — 130 — of that employment. As in this case, it might be — Well, I will not take this case. I will take an illustration. It might be that a shift working in a shaft would be fellow servants with regard to driving holes, blasting, mucking out; and yet it might be that the principal or master could have delegated to one of them the duty of seeing that all the blasts were discharged, and that there were no missed holes left when the succeeding shift should come on to work. So that as to that particular duty, if the principal should have assumed that duty, — should have ássumed the obligation of performing that duty for them, — then the principal could, I say, have delegated that particular duty to one of those who were engaged as a fellow servant in the other duties that I have mentioned.” The evidence in this case clearly shows that at the time the missed blast was exploded, Murphy, the pusher, and Shannon were working together, — the former using the pick and the latter a shovel, — and that the explosion occurred by reason of a stroke from the pick which Murphy was using. It does not appear that either knew of the existence of the missed blast. Clearly, therefore, if there was no delegated authority from the master to Murphy to notify his co-laborers of any hidden or unseen danger, — dangers which the servants knew, or in the exercise of reasonable diligence should have known, having better facilities for knowing than the master, — Murphy and Shannon were fellow servants, and the neglect of the one to notify the other of such dangers would preclude a recovery by the other against the common master. In the trial of the case it became a question of fact whether the pushers were vice principals or fellow servants with their co-laborers. If they were vice principals, knew of the hidden or unusual danger, when their subordinates were ignorant thereof, and neglected to inform those under them of it, their neglect was the negligence of the — 131 — master. The court simply told the jury, by this instruction, that persons working together as fellow servants might be fellow servants with regard to some parts of the employment, and yet one of them might be a principal or master with regard to some particular part of the employment. If the court had directed the jury that, if they found from the evidence that the pusher on each shift had been appointed by the defendant to look for hidden or unusual dangers not inherent in the work, and not to be anticipated in the labor in which Shannon and others were employed and to report the same to those working with him and under him, then he was a vice principal, and such pusher’s negligence would be imputed to the defendant, defendant could not have questioned the correctness of this instruction; and this, in fact, is the meaning of the instruction above quoted. The instruction, standing alone, may be subject to criticism., but, taken together with the other instructions upon the same subject, it fairly states the law. Further along the court uses this language: “Or if you find from the evidence that there was a missed blast there, and that it was the duty of the defendant to discover it and make it known to the deceased, and that it had been discovered, and'that it was placed in such a condition as to be obvious to the deceased when he entered the shaft to work, and that the deceased did see it, or, by the use of reasonable diligence, could have seen it, then you must find for the defendant.” In the trial of the case it became an important question whether the pushers were vice principals or fellow servants, and this was a question upon which the court was instructing the jury, and to which the instruction applied. - Appellant urges as the fourth error excessive damages, given under the influence of passion and prejudice. There — 132 — is nothing in the record tending to show any snch motive as passion or prejudice on the part of the jury, and, under the rule announced in Walker v. McNeill, 17 Wash. 582 (50 Pac. 518), this court will not disturb the verdict herein. Under the fifth and sixth assignments of error, appellant urges the reversal of this case because the verdict is not supported by the evidence, and that the same is against law. The question involved in this assignment is whether or not Shannon, by reason of his employment, assumed the risk incident to missed holes. It is settled in this country, as a general rule, that the master is charged with the duty of furnishing his servant a reasonably safe place in which to work, and impliedly says to him that there is no other danger in the place than such as is obvious and necessary. Baltimore & O. R. R. Co. v. Baugh, 149 U. S. 368 (13 Sup. Ct. 914); New England R. R. Co. v. Conroy, 175 U. S. 323 (20 Sup. Ct. 85); McDonough v. Great Northern Ry. Co., 15 Wash. 244 (46 Pac. 334); Hammarberg v. St. Paul, etc., Lumber Co., 19 Wash. 537 (53 Pac. 727). On the other hand, the servant, when he engages to the • master to do a particular piece of work, assumes all the risks and hazards incident to or attendant upon the particular employment, including the risks and hazards re- • suiting from the negligence of his fellow servants. Hough v. Texas & Pacific R. R. Co., 100 U. S. 213; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642 (6 Sup. Ct. 59); Baugh Case, supra. It is said in the Baugh Case, supra: “But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employee in respect thereto. That positive duty does not go to the extent of a guarantee of safety, but it does re — 133 — quire that reasonable precautions be taken to secure .safety, and it matters not tb the employee by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employee.” In the Hammarberg Case, supra, this court said: “It is gratifying, .however,- to observe that recently judicial opinion seems to favor a restriction of the doctrine of non-liability for the actions of fellow servants, and th.e English rule, that a servant in command is a fellow servant, has been repudiated by a great majority of the American cases, and it seems now to be pretty well established that, in order to constitute one a fellow servant, hq must be in the same common employment with the one who has suffered from his negligence. Shearman & Pedfield, Negligence (4th ed.), § 234. And the question of whether particular employees are fellow servants is in some states submitted to the jury. Mullan v. Philadelphia & S. M. S. Co., 78 Pa. St. 25 (21 Am. Rep. 2). The rule was announced in that case that the risk which the laborer assumes from the neglect of his fellow is where they are co-operating in the same business, so that he knows that the employment is one of the incidents of their common service. It has been held in Georgia that none are deemed to be in a common employment who have no opportunity to use precautions against each other’s negligence. Cooper v. Mullins, 30 Ga. 146 (76 Am. Dec. 638). And this, we think, is in strict consonance with the just theory upon .which the rule was first recognized.” And, at p. 452, quotes approvingly from Sadowski v. Michigan Car Co., 84 Mich. 100 (47 N. W. 598) as follows; “The rule adopted by the federal courts, and in most of the states, and which seems to us most in consonance — 134 — •with reason and humanity, is that those employed by the master to provide or to keep in repair the place, or to supply the machinery and tools for labor, are engaged in a different employment from those who are to use the place or appliance when provided, and they are not therefore, as to each other, fellow servants. In such case, the one' whose duty it is to provide and look after the safety of the place where the work is to be done represents the master in such a sense that the latter is liable for his negligence.” Applying these rules to the case before us, the question naturally arises, was the unexploded blast a danger necessarily incident to the employment? And, if not, was the pusher of another shift, having notice of the danger, a fellow servant with deceased in respect thereto ? If the twelve men who were engaged in sinking the shaft had been working together, each doing his part, and each having notice of the work of the other and the existence of the unexploded blast and the danger thereof, and one of them carelessly discharged the same, clearly no liability therefrom could be imputed to the master. But where the men were divided into shifts working at different times, each shift taking its turn, then, under the rule above named, where there were hidden, unusual dangers arising from some cause unknown to an on-coming shift, it became the positive duty of the master to notify the servant in some way of the extra hazard which he was about to encounter. And this, it seems, the master had provided for, by delegating to the pusher of each outgoing shift the additional duty of notifying an on-coming shift of the missed holes. This being a positive duty of the master, the neglect of the pusher of the out-going shift to notify the on-coming shift was the negligence of the master and not of the fellow servant. Whether Shannon actually knew of the missed hole, whether the same — 135 — was obvious, and whether with reasonable diligence he could have ascertained that there was a missed hole, were questions which were submitted properly to the jury, and were by the general, verdict answered in the negative. There was evidence in the case which required the court to submit the questions to the jury and which supports the verdict. Ho error appearing in the record, the case must be affirmed. Reavis, O. J., and Fullerton and Dunbar, JJ., concur.