Poorman Silver Mines of Colorado, Ltd. v. Devling

Mr. Justice Campbell delivered the opinion of the court. 1. The doctrine of safe place is foreign to this case. Where, as here, the place of work is not permanent, or has not been previously prepared by the master as a place for the doing of the work, or where the servant is employed to make his own place to work in, and the place is the result of the very work for which the servant is employed, or where the place is inherently dangerous and necessarily changes from time to time as the work progresses, the doctrine contended for has no application. — City of Greeley v. Foster, 32 Colo. 292. The instructions given by the court upon this branch of the case were therefore wholly inapplicable to the facts, and, aside from being not pertinent, were wrong in that defendant was thereby made an insurer of plaintiff’s safety in this respect, whereas the duty in a proper case is only to make the place of work reasonably safe. 2. Plaintiff’s theory, which seems to have been adopted by the trial court, was that Johns was the vice principal of the defendant, for whose negligent acts, without regard to their character, the defendant was absolutely liable. Under some authorities, the facts disclosed by this record would not make Johns a vice principal in any aspect, but only a fellow servant of the plaintiff; but, for our present purpose, and without deciding the point, we may safely assume that he was a vice principal of defendant with respect to all of the positive or absolute duties which devolved upon the defendant as a master. But it does not follow that a master is liable for every negligent act of one who, in these respects, is his vice principal. As to some of his acts, one may be a vice principal of the master, and as to other acts a fellow servant. Plaintiff avers' in his complaint that, had — 43 — not Johns interfered, as he says, with the ordinary method of doing the work, it would have been, under defendant’s rules, plaintiff’s duty and that of his fellow workmen to search for missed holes before beginning- the work of drilling. By that rule, and under the terms of employment, it was not a. positive or absolute duty of defendant to inspect the winze to see if it was safe, and warn the workmen. Plaintiff knew of this rule and, in law, agreed to observe it when he entered upon the service' which required him, as a. part of his regular work, to make the inspection. This examination pertained to the manner of operating the mine. It related to the details of the execution of the work, and could be, and in this case was, delegated by the master to his workmen, and by whomsoever done was merely the work of a fellow servant. Had not Johns, therefore, made this inspection, plaintiff would have had no cause of complaint against the defendant because, if there was any negligence in not discovering the missed hole, it was the negligence of his fellow workmen in the previous shift, or of himself and Bryant, his helper, or the joint negligence of both shifts. If Johns was the vice principal and, as such, the alter ego of the master with respect to all its positive or absolute duties towards its servants, he might, as we have said, as to other duties which might be delegated, act as a fellow servant. But the particular contention here is that because Johns, the defendant’s foreman, made an examination of the hole in the bench near the bottom of the winze, and reached the conclusion that it was not a missed hole, and told plaintiff that it was safe, and ordered him to- sink the same deeper, plaintiff thereby was relieved of the duty of making any examination for himself, and might follow the orders of the foreman without assuming any risk — 44 — by doing so, for the inspection, as well as the order, was that of Johns acting as a vice principal. In Deep Mining Co. v. Fitzgerald, 21 Colo. 533, it was said that the test of liability of the master for the negligence of the servant is the character of the act rather than the relative rank of the servant. The same rule is expressed in D. & R. G. R. R. Co. v. Sipes, 23 Colo. 226, 231, in the statement that the specific act in connection with which the negligence occurs is the criterion by which the liability of a master is fixed, rather than the rank of the servant who performs the act. The rule is well illustrated in Molique v. Iowa G. M. & M. Co., 18 Colo. App. 223, where the court, speaking by Gunter, J., held that the alleged act of. negligence was that of a fellow servant because it occurred, in the operation of the enterprise in which the defendant was engaged, and not in the construction, prosecution, or management of the plant by means of which the enterprise was carried on. Under the rule which prevailed in this mine of which plaintiff had knowledge, and which he sets up in his complaint, it was not an abosolute duty of the master or the vice principal to inspect the place of work to see if it was safe. On the other hand, the duty was one which could be, and was, delegated. When the three workmen were in the winze, all of them saw this hole. Its presence furnished at least some evidence of a missed shot. If we assume that it was then the duty of Johns to make a careful examination, it certainly was equally the duty of the plaintiff to take the same precautions for his own safety. The examination was made in the presence of plaintiff, and he was as competent a miner, and knew as much of the danger of the work in which he was engaged, as Johns. If Johns failed to use ordinary care in examining this hole, or if he should have done something more than he did, we are not advised — 45 — of it. No objection or protest was made by plaintiff to the examination, and it is apparent that plaintiff’s own belief, based upon the investigation which was made, coincided with that of Johns, which was that the hole examined was not a missed shot. The assurance of safety made by the foreman was to plaintiff’s knowledge based upon the examination made in his own presence, with which he was apparently perfectly satisfied. It is clear that, under our own decisions, Johns, in making this inspection, acted merely as a fellow servant with the plaintiff, 'and that the master is not liable for the negligence, if any was committed. The situation was this: To three experienced miners present in the winze, one pf whom, in the presence of the others, inspected the same, which inspection was satisfactory to all, the place seemed a safe one in which to prosecute further work. And even if the duty of inspection was an absolute duty of the master, when the inspection which was made was satisfactory to three experienced miners, one of whom was the plaintiff himself, it is difficult to see how there could be any liability of the master for injuries resulting to either one who acted in accordance with the common belief. 3. Plaintiff seeks to evade the application of the doctrine just announced by insisting that what he calls the interference of Johns withdraws this case from it. His argument is, that though it would have been his duty to examine this hole for himself had not Johns interfered, when Johns did take it upon himself to make the examination, there was no further obligation upon the part of the workmen of the mine to make the examination for themselves. A sufficient reply is that, even if Johns were the vice principal, he could not, in performing the work of a mere fellow servant, which this inspection was, re — 46 — lieve the plaintiff of the duty to take due precautions for his own safety. But, under the undisputed facts, there was no such interference upon the part of Johns. The plaintiff neither protested nor objected to what was done, and apparently was satisfied with the result of the examination, and considered the place as safe a one to work in as such places usually are. If, as a matter of fact, the examination was not carefully performed, or plaintiff was dissatisfied with it, it was his duty and he had abundant time and opportunity to make a further examination for himself before beginning the work of drilling. After Johns left the winze, the plaintiff and Bryant, his helper, were engaged for two or three hours in drilling another hole before they began to sink this particular one deeper. The case is not one where a servant is suddenly ordered into a place of danger by the master without an opportunity to examine it for himself and being ignorant of its character while the master knew, or should have known, its true character, and therefore the doctrine invoked clearly does not apply. — C. B. & Q. Ry. v. McGraw, 22 Colo. 363, 367, 368. Plaintiff knew that explosive material put in drilled holes does not always explode “when fired,” and as to whether or not the particular hole examined was or was not dangerous was or might have been as well known to him as to Johns. Whether the defect or danger was a latent or patent one, it was as obvious to him as to Johns, and he had 'ample time and opportunity to make the place of work safe. In short, if Johns was negligent in making the examination, plaintiff was equally culpable in not making one for himself. On the other hand, if Johns exercised due care and caution in what he did to discover the danger and failed, certainly defendant cannot be liable even if plaintiff was relieved of the duty of — 47 — inspection. The case is one where the master and servant had equal knowledge and means of knowledge of ascertaining the true character of the place of work which was inherently dangerous, and which was the very thing the servant was employed to do, and the particular danger encountered was one that not infrequently happens .in work of this character. No information was withheld from the plaintiff by the master, nor was he lulled into a sense of security. 4. Intimately connected with if not essentially included in the two foregoing points, but separately argued by counsel, is the contention that plaintiff was protected by his obedience to the foreman’s commands. The discussion of it involves more or less repetition, but as plaintiff confidently relies upon it, we give it separate and further consideration. The general rule is, that the servant’s duty is to obey the orders of his master, and ordinarily he will be excused if he complies therewith. Invoking that doctrine, plaintiff says that when the foreman ordered him to sink the hole deeper,, he was bound at the peril of discharge, to obey. The doctrine, however, is wholly inapplicable to the facts of this case. The mere order to do this work does not, of itself, constitute negligence. The work of drilling was the same in kind as that which the plaintiff under his contract was required to do. He was not, as we have said, suddenly called upon to obey an order of his master to go into a dangerous place, or to engage in a dangerous work, without an opportunity upon his part to investigate the place or character of the work, he being ignorant, and the master aware, of its real nature. He was a miner of twenty-one years ’ experience, of ordinary skill and intelligence, knew the usual dangers to be apprehended in prosecuting work of this kind, and saw the hole in which the danger — 48 — lurked, and after having -been present when it was examined, accepted-the result thereof, and acted.in accordance with it. lie must, therefore, be held to have voluntarily entered upon this particular work which resulted in his injuries with as ample knowledge of its true character as that possessed by his master. It was one of the natural and ordinary risks which he assumed, and if there was any negligence, he contributed to it by his own remisshess, and, in either case, there can be no recovery. Plaintiff was not requested, or directed, to fore-go, or omit, any examination for himself, and no act or omission of the foreman increased, or added to, the danger of the work; but, if it did, plaintiff’s own voluntary omission contributed to that injury, and, in either event, there can be no recovery. We have not specifically considered all the errors argued, as the foregoing discussion sufficiently disposes of the case. • Our views upon the vital questions which we have discussed are at variance with those entertained by the district court; hence its judgment must be reversed. In addition to the authorities already cited, and in support of our conclusion, see Haas v. Balch, 6 C. C. A. 201; McQueeny v. Chicago etc. Ry. Co., 120 Ia. 522; Browne v. King, 100 Fed. 561; Anderson v. Daly M. Co., 15 Utah 22; B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 384; N. E. R. R. Co. v. Conroy, 171 U. S. 384; Harris v. Balfour Quarry Co., 131 N. C. 553; Christienson v. Rio Grande W. Ry. Co., 27 Utah 132; Lenderink v. Village of Rockford, 98 N. W. (Mich.) 4; Fort Worth etc. Co. v. Whittenburg, 78 S. W. (Tex.) 363; Lack v. Burnham, 134 Fed. Rep. 688; Van Derhoff v. N. Y. C. & H. Riv. R. R. Co., 84 N. Y. Supp. 650; Smith v. Hecla M. Co., 80 Pac. 779. Notes to cases in Tedford v. Los Angeles Elec. — 49 — Co., 54 L. R. A. 85, 118, 138, 164, and O’Neil v. Gt. Northern R. R. Co., 51 L. R. A. 532, 590. Reversed. Chief Justice Gabbert and Mr. Justice Steele concur.