Dube v. City of Lewiston

WiriTEiiousE, J. The plaintiff was engaged with Edward Cloutier and five other laborers in digging a trench for a pipe sewer about one hundred feet in length, on Ash Street, in Lewiston. No shoring was employed to support the sides of [216] the trench, and when the excavation had reached a depth of eight or nine feet one side caved in and a large quantity of earth fell upon the plaintiff, and injured him. In this action against the city to recover damages the jury found in favor of the plaintiff. The construction of sewers authorized by the city council was under the general supervision of the street commissioner, but the crew in which the plaintiff was at work, at the time of the injury, was under the immediate direction of Edward Cloutier, who was foreman in charge of that particular job, the street commissioner incidentally inspecting the work from time, to time as it progressed. In the city tool-house, thirty rods distant, was deposited a quantity of lumber designed to be used for shoring in the construction of sewers, and suitable and available for that purpose. Cloutier had full knowledge of this. He had been directed by the street commissioner to pile the lumber there to be used for that purpose when required. At the time of the accident, the street commissioner was personally engaged in the work of paving in another part of the city, and the operations on Ash Street were entrusted to Cloutier. The commissioner had no special knowledge of the character of the road bed, or the nature of the soil at that point. Nothing had been disclosed, before the commencement of the work, indicating a necessity for any mechanical contrivance to protect the workmen against falling earth. The location and erection of any such structures necessarily devolved upon the workmen, acting under the direction of their foreman, as the digging progressed. The duty of determining when the exigency of the situation required such protection had not been assumed by the street commissioner. He did not undertake to give this piece of work his immediate supervision, and did not have the personal knowledge of its character required to form a correct judgment upon that question. The prosecution of this kind of work was not fraught with any peculiar perils not well understood by the plaintiff and Cloutier. If there were exceptionally dangerous conditions attaching to the soil on Ash Street they were open to the observation and knowledge of experienced workmen, or [217] ascertainable by tlio exercise of reasonable care and attention on their part. The commissioner discharged his duty when he assigned to the work an experienced and competent foreman, and furnished him with suitable and sufficient materials for any appliances necessary for the safe conduct of the work. The use and application of the materials formed a part of the duty of the workmen. Kelley v. Norcross, 121 Mass. 508; Zeigler v. Day, 123 Mass. 152; Floyd v. Sugden, 134 Id. 563; Clark v. Soule, 137 Id. 380; McDermott v. Boston, 133 Id. 349. The evidence discloses no omission of duty on the part of the street commissioner which would render the city liable in this action. And if Cloutier’s failure to place shoring against the side of the trench where the earth fell can be deemed negligence, it was clearly the negligence of a fellow-servant. The plaintiff and Cloutier were employed by the same master, received their compensation from the same common source, and were subject to the same control. They were not only engaged in the same general business and common employment, but were employed in the same kind of work and laboring on the same section. They were occupied in service of such a kind that each could reasonably be expected to foresee that he would be exposed to the risk of injury in case of negligence on the part of the other. Neither was Cloutier required to perform any duty which legally belonged to the province of the master. "The true test, it is believed, whether an employe occupies the position of a fellow-servant to another employe, or is the representative of the master, is to be found, not from the grade or rank of the offending or of the injured servant, but is to be determined by the character of the act being performed by the offending servant, by which another employe is injured ; or in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master.” McKinney on Fellow-Servants, pages 53, 23. See also Thompson on Negligence, § § 1026-1031. Beach on Contrib. Nog. page338. Shearman and Kedfieldon Negligence, 109. Doering on Negligence, § 204. Cooley on Torts, page 541, note 1. [218] The recent decisions in our own state are in accord with these principles. Doughty v. Penob. Log D. Co. 76 Maine, 143; Cassidy v. M. C. R. R. Co. Id. 488; Conley v. Portland, 78 Maine, 217; Nason v. West, Ld. 253. In Doughty v. Penob. Log D. Co., the court say: "The general rule that a master is not liable for an injury caused to a servant by the carelessness of a felloAY-servant, in the same common employment, unless the master is negligent in some matter he expressly or impliedly contracts with the servant to do, is the well-settled law of this state.” In Conley v. Portland, supra, a case directly in point, the court say : "It is settled law in this state, that an employer is not responsible to an employe for an injury received through the carelessness of a fellow-laborer; and it is equally Avell settled that the foreman, superintendent or overseer of a job of Avork, is not on that account to be regarded as other than a fellow-laborer with those who are at work under him. Such an employment does not elevate him to the dignity of a vice-principal.” See also Wood’s Master and Servant, § 437. In the case at bar, there Ayas no controversy in relation to the service Ayhich Cloutier rendered and was directed to render. "What he was employed to do was a question of fact; the capacity in Avhich he acted was an inference of laAV. As the facts were not disputed the question submitted to the jury was one of pure law.” Johnson v. Boston Toll-Bridge Co. 135 Mass. 209. 2 Thompson on Trials, page 1239, § 1699. The jury should have been instructed, in accordance Avith the request of the defendant, that there ayus no evidence to sIioav that Cloutier was anything more than a fellow-servant Avith the plaintiff; and even if the injury occurred through his negligence, the city Avas not liable. Motion and exceptions sustained. Peters, C. J., Walton, Virgin, LiBBEYand Haskell, JJ., concurred.