Poos v. Fred Krug Brewing Co.

Sedgwick, J..' The plaintiff was injured by the falling of a ladder on which he was standing while engaged in his duties as an employee of the defendant company. He brought this action in the district court for Douglas county to recover damages for the injury he sustained in the fall. The jury returned a verdict in his favor for $8,500. The trial court required a remittitur, and entered judgment for $2,500, and the defendant lias appealed. There is but very little, if any, controversy in regard to the facts. The plaintiff has filed three briefs in the case, and from them we learn the following: He was required to “perform certain work connected with alterations to the refrigerating plant. These alterations, as far as need be noted here, consisted of lifting a trap weighing several hundred pounds to its place a few feet below a ceiling 24 feet high. This was done by block and tackle, the chains of which came only within 10 feet from the ground. Ladders were provided for appellee and others doing this work to stand upon when lifting the trap by the block and tackle.” One Louis Peitzel was called to hold the ladder for the plaintiff while he was working upon it. The plaintiff [493] fmtlier says: “The ladder was 12 or 15 feet long, with round wooden rungs, and was placed against a round iron post. The floor was of cement, and at that time was slippery because of oil and grease. Appellee’s work necessitated his standing upon a rung about 10 feet from the ground, with his back to the post. He could not hold onto the post while working. It was Peitzel’s duty to hold the ladder to keep it from slipping while appellee was working, and he did so until appellee was injured. Appellee had ascended the ladder, and was turning around when it turned and threw him to the ground, the ladder falling also. Peitzel was holding the ladder when appellee started to ascend, but released his hold of it before appellee reached the top. * * * The testimony of appellee clearly establishes the fact that he was hurt solely .because of the negligence of the man holding the ladder. It was undisputed that it was Peitzel’s sole duty to hold the ladder for appellee, and that the ladder could not fall if held, and that it was likely to fall if not held. * * The fact that the ladder turned, throwing him to the ground, speaks for itself, for, as appellee and appellant’s witnesses say, it could not slip if it was held. * * * If appellee’s testimony is to be believed,- * * * it was the negligence of Peitzel that caused his injuries.” The only proposition of law stated by the plaintiff in his original brief is: “Peitzel’s failure to hold the ladder for appellee Avas a breach of appellant’s duty to furnish appellee a reasonably safe place to work, for which appellant is liable.” The brief also concedes that Peitzel was a fellow servant: “It is true that Peitzel was, as far as rank . goes, a fellow servant of appellee’s; but in this instance he was performing the duty of his master.” And so the plaintiff himself presents this as a case Avhere the negligence of a fellow servant causes an injury. The plaintiff’s contention is that the employer did not furnish Mm a safe place to work. In the brief it is ¡fated in these words: “Appellee’s place was not safe un d the ladder was held, and it remained safe only so long as it continued to be [494] held. Since the law imposes the duty to provide a reasonably safe place for workmen, that duty certainly continues so long as the men are there at work — so long as that place is needed, for their work.” It is the duty of the employer to furnish his employee with a reasonably safe place in which to work and reasonably safe tools, instrumentalities and appliances to work with. If the employer fails to do this and the employee is injured by reason of such failure, the employer is liable, unless the employee is himself negligent or knows the danger and voluntarily assumes the risk. It is equally well-settled law in this state that, if the place to work or the tools or instrumentalities with which the work is to be accomplished are unsafe, it is the duty of the employer to make them reasonably safe, and this is a continuing-duty that he cannot avoid. He does not perform this duty by instructing some person or employee to make the place or the instrumentality safe. It is a duty so incumbent upon the employer that he cannot delegate it to some one else and so evade responsibility. He must see to it that the thing- is done, and that the place and the instrumentality are made reasonably safe. But the plain question in this case is whether this accident happened because the place or the instrumentality was unsafe, or happened by the negligence of a fellow servant. The plaintiff correctly says in the brief that “the liability of the master is determined by the nature of the act in question.” So that the question is, to state it again, whether this accident was caused by some defect in the place to work or in the instrumentality to be used, or was caused by the negligence of the fellow servant. It is said that the ladder might easily be held, and that if it had been held the place to work would be safe, but the employee negligently failed to hold the ladder, and that made the place to work unsafe; that the holding of the ladder was necessary in order to make a safe place to work, and that, as it is the duty of the employer to furnish a safe place to work, it became his duty to hold the ladder, and that he could not delegate that [495] duty, but must hold it himself, or if he did delegate it he would be responsible as though he were holding it himself. This sort‘of reasoning is so emphasized and so much reiterated in the brief, and seems to be so earnestly relied upon, that it may not he useless to suggest some illustrations of such a rule. If two employees to construct a platform to stand upon place two supports under a plant or platform, if these supports are placed at each end of the plant or platform, it will furnish a safe place to wort upon, hut if one of the employees places a support too far from the end of the plant, his fellow wortman may innocently stand upon the unsupported end of the platform and meet with an accident. A platform so unsupported is an unsafe place on which to wort. The employer, therefore, by plaintiff’s reasoning in this case, has not furnished a safe place on which to wort, and his duty to do so cannot be delegated, and therefore he should himself have placed the support under the end of the plant or platform, and is responsible for the fact that a fellow employee misplaced it. An employee may safely stand upon a wagon to perform services if the wagon is not moved. If horses are harnessed to the wagon and are liable to move it, it might he rendered an unsafe place to wort. A fellow wortman, as long as he holds the horses and teeps them quiet, therefore furnishes a safe place to wort. The duty also would devolve upon the employer, as it is his duty to furnish a safe place to wort, and he could not delegate the duty of holding the horses, but would be responsible if the fellow servant left the horses and they moved the wagon and so made the place unsafe to wort. Upon careful examination it will be found that this reasoning can he applied to almost every case where the negligence of a fellow servant has caused an accident. The employer performs his duty if he furnishes places and appliances that are reasonably safe when they are used in the usual and proper way. If such places and appliances [496] are unsafe when safely and properly used, it is the employer’s duty to see that they are made, reasonably safe for usual and proper use. This is the duty that he cannot delegate so as to relieve himself from responsibility if it is not performed. If, however, the tool or instrumentality furnished is in itself safe, and one employee uses it negligently so as to injure his fellow, the emplover cannot anticipate or guard against such negligence. The plaintiff concedes this in his brief when he says that the master is not liable “where the place is reasonably safe, but a misuse thereof is made.” There can be no possible difference in this respect between the place and the instrumentality with which to work. The plaintiff’s brief quotes from Hermann v. Port Blakely Mill Co., 71 Fed. 853, 857, in which it was held that the employer was not liable because “it would create a liability which the master could not avoid by the exercise of any degree of foresight or care.” And so in the case at bar the employer could not avoid the negligence of the fellow employee “by the exercise of anv degree of- foresight or care.” The plaintiff repeats in his brief the statement that because of the situation there was no other way possible to make the use of this ladder safe but by holding it in position, which the fellow employee could easily have done, but carelessly left his duty and allowed the ladder to fall. Surely the employer could not possiblv have anticipated such negligence. If there is a defect in the appliance to be used, the employer by proper diligence can ordinarily dis-. cover such defect, but he cannot anticipate criminal negligence on the part of fellow employees. The fellow-servant law has undoubtedly been abused and misapplied, but plaintiff’s reasoning would do away with it entirely. It has been so long established and universally acted upon by the courts that, if it is to be abolished and a better rule established in its place, it must be done by the legislature, and not by the courts. Our former judgment is vacated, and the judgment of the district court is reversed and the cause remanded. Reversed.