Wig v. Manchester Biscuit Co.

WHITING, J. Plaintiff sued to-recover damages ’ suffered from- an injury received while in defendant’s employ, and while ■engaged -with -one MicClintock in attempting to up-end a heavy barrel filled with honey. M-cClintock was the foreman under whom plaintiff worked and whose orders he was directed-to obey. Plaintiff alleged: (1) “That MeClintock so negligently and uhskillfully direct- - ed and performed his duties in the lifting and: placing of said [518] barrels on end that- he permitted one of said barrels to slip and fall on the left foot of' plaintiff.” (2) “That the said defendant negligently failed to furnish the plaintiff and said McClintock a reasonably safe place to- perform, and reasonably safe appliances wherewith to .perform, the said work, in that the said defendant knowingly and willfully failed and omitted to have a safe and proper place on which plaintiff and said McClintock could stand while performing the said work, and that the said- barrel of -honey was -damp, wet, and slippery, and too- heavy to- be handled in the manner directed as aforesaid.” At the close of plaintiff’s evidence, the court, upon motion- of defendant, -directed a verdict for -defendant, and- judgment was entered upon the verdict. T-he court afterwards granted a new trial, and it is from the order granting a new trial -that this appeal was taken. Respondent had been in the -employ of appellant f-o-r several month, working as a -common laborer in its warehouse. Among other labor performed' was that -of -moving barrels- about from place to p-la-ce. Assisted by McClintock, respondent ha-d -up-ended barrels of honey before and knew just how to do it. He knew bow to ho-l-d his -feet when up-ending such barrels. Up to th-e -day of -the ¡accident, he had- up-end'ed only such barrels as were lying upon the floor. Upon the -day of the accident, there were some -barrels of 'honey standing on end, and upon these -other barrels lying on their sides. The foreman said- these laist-m-entioned barrels must be up-ended upon those already standing. Respondent protested, saying that it was not necessary that this be done, but the foreman insisted upon its being ¡done. They both got upon t-he top of one -of the lower barrels, and, with one standing upon each side -of- -one end! of the barrel to be up-ended, they took hold ■of such barrel with their hand's -and proceeded -to up-end same. One was u-p-ended without accident. When the second barrel was nearly uprai-s-ed, it -slipped from the foreman’s hands, and, respondent being -unable to support it alone, it fell and inflicted the injury -complained of. There were, iso- far ¡as¡ respondent knew, no tools, machinery, or appliances of any kind' at appellant’s warehouse for helping up-end such barrels. There was no evidence ■that t-he barrel in question was, wet or slippery. There was no [519] evidence but that, when- up-ending the barrel- in question, both parties engaged therein were standing firmly upon itheir feet. No reason was given by respondent why he could not evade the falling barrel. Whether there was one or moire than one row of barrels standing on end does not clearly appear. Respondent said, “We just rolled them in front, and then, took and lifted them up.” From this, we might fairly infer there were more than one row of the upright barrels. Appellant contends: (i) The negligence causing the injury was that of a fellow' servant. (2) Respondent was injured in oonsei'qjuence of the ordinary risks of the business in which he was employed. Respondent contends: (1) The fellow-servant rule ■does not -apply for the reason that the acts constituting negligence were done in the performance of a duty resting upon the appellant, and not by the foreman in his capacity of fellow servant. (2) The question as fe> whether one of several employes is a vice principal as to his coemployes, or whether all are fellow servants, is generally .a mixed question of law and fact, to be determined by a jury, on the particular facts of each case, and' under proper instructions of the court. (3) The question of negligence of apr-pellant and assumption of risk by respondent should have been submitted to the jury. [ 1 ] It is clear that McClintock was acting in a dual capacity: In directing the manner of, and in providing the p-la.ce and appliances for, doing the work he was a vice princiapl for whose negligence the appellant was responsible; in .assisting in lifting the barrel he was but a fellow servant for whose negligence appellant would not be liable under section 1449, C. C. Solleim v. Norbeck & Nicholson Co., 34 S. D. 79, 147 N. W. 266. It-is therefore clear that, unless the evidence shows that the falling of the barrel is traceable to a failure to provide suitable appliances for lifting such barrel, or to a failure to provide a safe place for the doing of the particular work in which respondent was engaged when injured, appellant was not liable. If the cause of the injury could not, under the evidence submitted, be traced beyond the slipping of the barrel from the hands of McClintoek, appellant is not liable. [2,3] While we agree fully with respondent’s second contention, yet such is not the rule where, as in this case, there is [520] no dispute as to the facts. Ealbatt’s Master and Servant, § 1494. Every fact is clear and undisputed with the exception of one which would appear to* be of almost vital importance to respondent's claim. There is no- dispute as to* this fact, but it remains uncertain solely through the neglect of respondent to furnish evidence in relation thereto, and upon him rested the- burden to furnish such evidence. The fact we refer to, and one which should have been easy of proof, was the number of rows of barrels which were standing upon end and to the tops of which respondent and McClintock were confined in their movements when up-ending the barrel in question. The importance to respondent of evidence establishing -the fact that there was but a single row of barrels standing upon end to the tops of which the movements, of these parties were confined is shown from the following statement contained in respondent’s! brief: “Ais to the question of the assumption of risk by plaintiff, it . must be remembered that while he had helped to lift and up-end barrels of honey that were standing on the floor, as 'he testified on cross-examination, and knew how to place his feet while so doing, he had never helped to raise or up-end any barrels that were lying on the top of others where two- men engaged in such work were obliged to stand in a cramped! position on. the head of a barrel where neither could use his strength to the best advantage, or, if the barrel slipped or was too -heavy for McClintock, the foreman, to hold in his position, would not give an .opportunity for plaintiff to get his foot out of danger as he could easily have done in- raising and up-ending barrels on the floor.” With- more than one row of upright barrels these .parties did not need to stand upon the head of a single barrel, and, if they were negligent in so doing, appellant cannot be hoi den therefor. There is not a syllable of evidence -that either man 'Stood in a cramped position, that either of them could not use his strength to the best advantage, or that it was in any wajr owing to the .situation in which respondent was compelled to* stand that he failed to get his foot out of the way of the falling barrel. If these parties were compelled to stand in a cramped position wherein they could' not tuse their strength to* advantage and owing to which, respondent was unable to escape the falling barrel, certainly respondent should -have furnished proof thereof. If he re [521] lied upon the claim that 'he -was required tO' work in an unsafe place, it was incumbent upon him to show both that the place was unsafe, and also that the injury suffered was traceable to the unsafe condition of the place. Without other proof, neither the count nor the jury would -have a right to infer, from the fact that an injury was received, that the place was unsafe and that such unsafe condition was the cause of the injury. This was not a case where the rule of res ipsa lolquitur applies. Rabatt’s Master and Servant, §§ 1600, 1601. Thus this case stands as though this injury had been received, when respondent and M'cClmtock were up-ending a barrel upon the floor. This they had often done without the 'aid of appliances. The proof fails to show either the need of appliances, or the fact that there were any known appliances for the doing of such work. There was no question to be submitted hr the jury. The trial court rightfully directed the verdict for appellant. The order granting the new trial is reversed.