Larsen v. Le Doux

SULLIVAN, J. — This action was brought to recover $1,000 damages for a personal injury alleged to have been sustained by the plaintiff, based upon the negligent and defective construction of the scaffold alleged to have been erected by the appellants during the construction of what is known as the Elks’ Temple, in the city of Moscow, Latah county, Idaho. The answer to the amended complaint admits certain allegations and denies others, and puts in issue the allegátion of the amended complaint as to the negligent and defective construction of said scaffold, and as an affirmative defense averred that if the plaintiff sustained any injuries whatever from the falling of the scaffold, the same was caused by his own negligence and carelessness, and by the acts, conduct, negligence and carelessness of one George R. Knowles, a fellow-servant and coemployee of the respondent, and not through any want of care, diligence or skill on the part of the appellants. The cause was tried by the court with a jury, and a verdict and judgment was entered against the appellants for the sum of $250, and the appeal is from the order overruling a motion for a new trial and from the judgment. The following facts appear from the record: That the appellants were copartners and doing business as contractors in the erection of buildings, and were at the time of the accident engaged in the erection of what is known as the Elks’ Temple, in the city of Moscow; that the respondent, from the twentieth up to the twenty-fourth day of October, 1904, was employed to work upon said building, and was engaged in wheeling mortar and bricks on the scaffold in connection with a fellow-workman by the name of Knowles; that Knowles had been engaged in the same work for about three weeks prior to the date of the accident. It appears from the testimony that — 55 — one Burke was the foreman or superintendent in the construction of said building for the appellants; that on the morning of the twenty-fourth day of October, Burke directed Knowles to erect a scaffold for the use of the brick masons, the falling of one section of which caused the accident. The record shows that Burke, the foreman, had had about twenty years’ experience as a bricklayer and mason and as a contractor, and also shows that he was a careful and competent man. It is also shown that Knowles was a trustworthy man and had assisted in erecting scaffolds about said building, and that there was an abundance of good material on hand from which to erect said scaffold, and more than sufficient for that purpose. Burke testified that he had given Knowles instructions how to build the scaffold, and directed him particularly to lap the ends of the planks that-were placed on the joists or cross-pieces of the scaffold, and that he failed to follow such instructions. It further appears that in the joist or crosspiece that broke there was a knot or gnarl, and it was visible from one side only; that the joist was defective in that particular; that Burke was present when Knowles began the construction of said scaffold; that Knowles took two pieces of two by eights for such joists, and that one of the brick masons nailed the ends of the same for him; that said scaffold was between forty and fifty feet long and in sections, and that the joists along the entire length of it were from sixteen inches to four feet apart, and that the two by eights or two by tens placed on said joists as the floor of said scaffold were about eleven feet long; that said Burke assisted said Knowles in putting said plank on the first section of said scaffold, and that they lapped the ends of the same. At about that time the respondent was requested to help Knowles complete the scaffold, and Burke went to some other part of the building; that, instead of lapping said ends as directed by Burke, they put said. planks end to end, and after they had completed that work they proceeded to place bricks and mortar on said scaffold to be used by the bricklayers; that work had continued for about an hour when a section of the scaffold gave way and the respondent and — 56 — Knowles were precipitated to the floor below, a distance of sixteen or seventeen feet. The respondent testified that from the-excessive weight of the bricks and mortar placed on the scaffold by him and his fellow-servant, Knowles, it broke and fell. In the fall of the scaffold the respondent broke a small part off from the bone in his heel. It is contended by counsel for appellant that under the law and the facts of this case the appellants are not liable. In damage cases such as the one at bar the ancient rule of respondeat superior, or, let the principal be held responsible, was applied without exception until in the year 1877. In that year the case of Priestly v. Fowler, 3 Mees. & W. 1, was decided, and with that ease began the history of the fellow-servant rule. (See notes on that case, 17 English Ruling Cases, 241.) It is stated in McKinney on-Fellow-servants, section 4, that the effect of that decision on modern jurisprudence has been characterized as second to no adjudication to be found in the law reports. And it is stated, among other things, in section 98 of Beach on Contributory Negligence, that no other reported case has changed the current of decision more radically than this, and “all subsequent common-law report books contain refinements upon the doctrine, here for the first time announced, that the superior may not, under given conditions, be held to respond for the tortious or negligent acts of his agent.” The doctrine which relieves the master from liability for injuries caused by the negligence of fellow-servant is of very wide application, and it originated in eases where servants were engaged in a common enterprise. It modified the doctrine that the principal is liable for the negligent acts of his agent upon the theory or principle that the servant assumed the ordinary dangers incident to the employment, and that an obligation on the part of the master to take better care of the servant than he may reasonably be expected to take of himself will not be implied. We have in this country two lines of decision on this question, one known as the Ohio doctrine and the other as the New York doctrine or rule; The former doctrine is to the effect that the agent to whom the control of the work is given — 57 — by the master, together with the power of hiring and discharging employees and of superintending the work, whose orders the servants are bound to obey, stands in the place of the master, and is not a fellow-servant within the meaning of the rule as applied to laborers and servants. The Ohio doctrine adopts the superior servant criterion to the effect that when the master has given to an employee supervisory control and management of his business, or some particular department thereof, such person, while so acting, stands in the place of the master, and for his negligence the master is liable. This is known as the Ohio doctrine, and was adopted or enunciated by the supreme court of the United States in Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, 28 L. ed. 787. But that case has been practically overruled by the subsequent case of Railroad v. Baugh, 149 U. S. 368, 13 Sup. Ct. Rep. 914, 37 L. ed. 772. Under the Ohio rule the liability of the master is made to depend upon the rank or grade„of the person whose negligence caused the injury. The opinion in Baltimore etc. R. Co. v. Baugh, supra, was prepared by Mr. Justice Brewer, and he explains at length the Ross case, supra, and in doing so cites numerous decisions from Minnesota and other states, and quotes with approval from Brown v. Winona etc. R. R. Co., 27 Minn. 162, 38 Am. Rep. 285, 6 N. W. 484, as follows: “On the other hand, the great majority of courts, both in this country and in England, hold that mere difference in grade of employment, or in authority, with respect to each other, does not remove them from the class of fellow-servants as regards the liability of the master for injuries to one caused by the negligence of the other.” The learned justice also refers to certain Ohio cases, and quotes from them and holds that the ‘ ‘ question under consideration is essentially one of general law”; that it does not depend upon any statute or spring from any local usage or custom; that there is in it no rule of property, but that it rests upon those considerations of right and justice that have been gathered into the great body of the rules and principles known as the “common law”; that there is no question of the power of the state to legislate and change the rule of the common — 58 — law, but in the absence of such legislation the question is one determinable only by the general principles of the common law. Referring to the question under consideration, the learned justice says: “It is also one of the vexed questions of the law and perhaps there is no one matter upon which there are' more conflicting and irreconcilable decisions in the various courts of the land than the one as to what is the test of a common service, such as to relieve the master from liability for the injury of one servant through the negligence of another,” and proceeds and sustains the New York rule. In the ease of Weeks v. Shearer, 111 Fed. 330, 49 C. C. A. 372, from the circuit court of appeals of the eighth circuit, is a late decision prepared by Circuit Judge Sanborn. It is a very instructive and exhaustive opinion containing the citations of many authorities. It is there stated: “An employee frequently ^cts in a dual capacity- — at times a fellow-servant, at times a vice-principal — and the line of demarcation between the negligence whose risk the servant assumes and that for which the master is liable is this, to wit, if the act is done in the discharge of a positive duty of the master, then the negligence therein is the negligence of the latter. If it is done in the discharge of any other duty of the employee, it is the negligence of the servant, the risk of which his fellows have assumed. Some of the rules which we have thus briefly restated have been the subjects of volumes of debates and conflicting decisions, but they have at last become established beyond doubt or cavil by the repeated decisions of the highest court in the land.” (See, also, Beesley v. Wheeler & Co., 103 Mich. 196, 61 N. W. 658, 7 L. R. A. 266.) In Mast v. Kern, 34 Or. 247, 75 Am. St. Rep. 580, 54 Pac. 950, after stating the Ohio doctrine, the court says: “On the other hand, the rule, and the one now unquestionably established and supported by the great weight of authority, both in this country and in England, is that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not the grade or rank of the negligent employee. If the act is one pertaining to the duty the — 59 — master owes to Ms servant, he is responsible for the manner of its performance, without regard to the rank of the servant or employee to whom it is intrusted; but if it is one pertaining only to the duty of an operative, the employee performing it is a fellow-servant with Ms colaborers, whatever Ms rank, for whose negligence the master is not liable. (McKinney on Fellow-servants, sec. 43 et seq.; Bailey on Masters’ Liability for Injuries to Servants, 226 et seq.; Wood on Master and Servant, sec. 438.)” The court, in addition to the authorities above cited, cites many others and states that many other authorities could be cited to the same effect, but that those were sufficient to show the irresistible current of decisions, as well as the ground upon which the doctrine rests and its application to given facts, and that the former decisions of that court upon that question has always been made to depend upon the character of the act causing the injury, rather than the grade or rank of the offending employee. That court, further says: “The true test in all eases by wMch it may be determined whether the negligent act causing the injury is chargeable to the master, or is the act of a eoservant, is, Was the offending employee in the performance of the master’s duty, or charged therewith, in reference to the particular act causing the injury? If he was, his negligence is that of the master and the liability follows; if not, he was a mere eoservant, engaged in a common employment with the injured servant, without reference to Ms grade or rank, or his right to employ or discharge men, or to his control over them. In short, the master is liable for the negligence of an employee who represents him in the discharge of his personal duties toward his servants. Beyond this he is liable only for his own personal negligence. This,’ as said by Judge Dillon, ‘is a plain, sound, safe and practical line of distinction. We know where to find it and how to define it. It begins and ends with the pergonal duties of the master. Any attempt to refine based upon the notion of ‘grades’ in the service, or, what is much the same thing, distinct ‘departments’ in the service (which departments frequently exist only in the imagination of the judges, and not in fact), will only breed the confu — 60 — sion of the Ohio and Kentucky experiments, whose courts have constructed a labyrinth in which the judges who made it seem to be able to ‘find no end in wandering mazes lost.’ ” (Peschel v. Chicago etc. Ry. Co., 62 Wis. 338, 21 N. W. 269; Kogan v. Field, 44 Hun, 72; Marsh v. Herman, 41 Minn. 537, 50 N. W. 611.) As to the question of who are fellow-servants and who are vice-principals, the legislature of this state has not, by legislative act, determined. And that question remains as stated by Justice Brewer in Baltimore etc. R. Co. v. Baugh, supra, one of common or general law, and we think the rule more consonant with reason and justice is that above designated as the New York rule or criterion, and is that the master is liable for the negligence of an employee who represents him in the discharge of his personal duties to his servants and beyond that he is liable only for his own personal negligence. Or, as stated in section 23 of McKinney on Fellow-servants: “The true test, it is believed, whether an employee occupies the position of a fellow-servant to another employee, or is the representative of his master, is’ to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant by which another employee 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.” Believing that to be the correct rule, we will now proceed and apply it to the facts of this case. Burke had charge of the construction of said building for the master, the appellants here. It was not a large building or structure that required expert scaffold builders to erect the scaffolds. It appears that the respondent and the man Knowles who erected the scaffold were fellow-workmen or servants engaged principally in supplying the brick masons with bricks and mortar. The northerly side of the building had been completed, and the brick masons were proceeding with the laying of the bricks on the front of the building. Burke directed Knowles to erect a scaffold for the brick masons. It appears 'that- the — 61 — scaffold was put up in two or more sections, and it required two joists or cross-pieces to be put up connecting the sections. It also appears that there was plenty of lumber at hand such as was used there in erecting such scaffolds; that said Knowles selected two pieces that were two by eight inches and about eleven feet long, and used them as joists or cross-pieces for the scaffolds; that while he held them in position one of the bricklayers nailed the ends thereof; that while that was being done Burke, who was near by, and after the joist was put in place, assisted Knowles in laying some of the floor of said scaffold. It also appears that while Knowles was putting up said joist, the respondent was at the north side of the building clearing away some rubbish; that he was thereafter called by Burke and directed to assist Knowles in completing the scaffold, which he .did. After the scaffold was completed the appellant and said Knowles proceeded to wheel brick and mortar upon said scaffold for the brick masons. They had continued that work for from a half an hour to “an hour, and as both of them were standing on one section of said scaffold, it gave way and fell and they fell some sixteen or seventeen feet. The injury was occasioned by the breaking of one of said joists or cross-pieces. It appears that said joist had a gnarl or knot on one side thereof, and, no doubt, weakened it to some extent. One of the witnesses testified that said gnarl could be seen from only one side of the cross-piece and made it cross-grained on that side. The respondent himself testified that “from the excessive weight of this brick and mortar it broke, and I fell below, and Mr. Knowles fell with me.” The question arises under those facts whether it was the duty of the appellants to construct said scaffold, or was their duty ended in that regard when they furnished sufficient suitable material therefor. We think their duty ended when they furnished sufficient and suitable material, and the fact that Burke directed Knowles to build this scaffold, and the appellant to assist him, and was there for a little while himself, and laid a few boards on the floor of said scaffold, does not make the appellants liable. Clearly, Burke did not select — 62 — said eross-pieee, but left that with Knowles, the respondent’s fellow-servant. That being true, the injury was occasioned by Knowles’ oversight in not selecting a stronger cross-piece. It was no part of the duty that the appellants owed to respondent to place any boards on said scaffold, and because Burke laid a few boards thereon, that does not make his act the act of the appellants, that not being a personal duty that the appellants owed to the respondent. (June 27, 1905.) It is further shown that Burke instructed Knowles to make the scaffold strong and to be sure and lap the planks of the floor thereof over the joists; that the planks that Burke laid thereon were so lapped, but the planks laid thereon by Knowles and the appellant were not lapped but were placed end to end — butted up against each other. The accident, no doubt, occurred because of Knowles’ failure to erect the scaffold as instructed by Burke and because of the excessive amount of mortar and bricks placed thereon, and for neither of which are the appellants liable. The judgment is reversed and the cause remanded for further proceedings in accordahce with the views expressed herein. Costs are awarded to appellants. Stoekslager, C. J., and Ailshie, J., concur.