Mills v. Bartow Lumber Co.

Powell, J. (After stating the foregoing facts.) 1. The defendant was not a chartered railroad company, but merely a sawmill company, and the case, therefore, falls within the general law of master and servant, and not within the purview of any of the special statutes which have been passed regulating the [174] liability of railroad companies to their employees. Counsel for the plaintiff has made an elaborate argument in an effort to prove that the servants who loaded the logs were not fellow servants of the deceased employee, but were to be regarded as vice-principals of the master. His major premise, that whether the employee is to be regarded as a fellow servant or as a vice-principal is to be determined by the character of the work lie is performing, is undoubtedly correct; but his minor premise, that the loading of the logs was a duty which attached to the position of master, rather than to the position of servant, is plainly unsound. It is the duty of the master to arrange the ways, the means, the instrumentalities, and the places by which and through which the work is to be done, and to use ordinary care and diligence to secure an adequacy of workmen, and to provide a general system by which they may do the work with reasonable safety. These are things which naturally fall to the master’s part under the relationship of master and servant. The doing of the work is the part of the servant. ' If the master has provided a reasonably safe method by which the work can be done, and the servants in doing the work act negligently, so that one of their number is injured, the fellow-servant doctrine is applicable, and the doctrine of respondeat superior is not broad enough to make the master responsible for the negligence. The manner in which the employees in the forest loaded the logs on this train was but a part of the execution of the work itself, and the workmen, in doing that labor, were in no sense performing an absolute or non-delegable duty of the master. 2. The proposition is too well established to admit of elaboration or to require the citation of authority that even though the master omits to perform any one or more of his absolute or nondelegable duties, still if the servant, with knowledge of the master’s delinquency in this respect, goes forward with the work, he is held to have waived the performance of the duty by the master, and to have assumed the risk. Therefore the allegations in the petition, charging that the defendant was negligent in not providing appliances to prevent the logs from rolling off by gravity when the chains were loosed, and in not placing servants with cant-hooks or other tools to prevent the logs from rolling off, and that the defendant did not make rules or regulations in the conduct of its business of such a nature as to promote the safety of the servants [175] in unloading the logs, are wholly inadequate to charge the defendant with liability, since the deceased servant, himself the master’s agent in charge of this very work, went ahead and unloosed the chain, with full knowledge that the appliances, instrumentalities, and servants which the plaintiff says should have been furnished were not present and had not been supplied. It is a perfectly plain ease for the application of the doctrine of assumption of risk, with nothing in the circumstances to suggest an exception. The general allegation that the defendant company omitted to furnish the plaintiff’s husband with a safe place to work amounts to nothing, under the other allegations of the petition. The specific’duty of furnishing a safe place to work rather relates to the equipment of houses, plants, and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose his servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Nothing is alleged in this ease to show any such situation. The petition being fatally lacking as to statement of those matters which are requisite to the imposition of liability upon the master for the servant’s death, there was nothing else for the trial judge to do than to follow the law as it has been recognized in this State for nearly a century, and to dismiss the petition on demurrer. Counsel for the plaintiff very strenuously urges that the tendency and trend of modern thought, both secular and judicial, is toward extending the liability of masters for injuries received by their servants in the course of employment, and to give every injured servant indemnity where it appears that he himself was free from fault. "We concede that this is the trend and the tendency, and we may confess that we think it is a very proper trend and tendency; but judges should be governed by the law as it actually is, and should let trends and tendencies be given effect in another way. Judgment affirmed.