Kangas v. Cleveland Cliffs Iron Co.

Kuhn, J. The plaintiff was injured while in the defendant’s employ as a miner in the Lake mine, in — 257 — Marquette county, on May 18, 1910. At the time of the accident the mine was being operated by two shifts; the day shift commencing work at 7 o’clock and ending at 6 o’clock, and the night shift commencing at 7 o’clock and ending at 6 o’clock. These shifts were engaged in the work of removing certain old timbers from a sublevel and replacing them with new ones, because the pressure ©f the mine had gradually crowded the timbers down until the space in the drift had become too small to permit the tram cars to pass through. With this operation the plaintiff was familiar, as he had helped repair and fix up old timber sets before. It is the claim of the plaintiff — and there is testimony in support thereof — that the men of the day shift were negligent in carrying on this work, in that they did not block up the space which was left between the top of the second set of timbers and the back of the drift or sublevel, and it is claimed that there was a hole which led from the opening at the top of the lagging up into an old stope, and that the rock which injured the plaintiff came down from the old stope, out through this hole, which was left by reason of the absence of blocking, and struck the plaintiff. As it was conceded that, if the men who were charged with the duty of putting up these sets, putting in the lagging, and blocking it, had performed their duty, the accident would not have happened, the learned trial judge directed a verdict for the defendant, for the reason that, if the accident happened as claimed by the plaintiff, it was the result of the negligence of the fellow servants of the plaintiff, and not of any negligence on the part of the defendant, and that therefore the plaintiff could not recover. Is is the contention of counsel for the appellant that the fellow-servant rule is not applicable in the instant case, because the employee who was — 258 — injured and the employees because of whose negligence the accident happened were not working for the same master at the' same time. In support of their contention they invoke what is known as the “con-association doctrine” by the authorities. This doctrine is chiefly in vogue in the State of Illinois, and holds that, in order to constitute servants of a common master fellow servants, it is essential that they should at the time in question actually co-operate with each other in the particular business in hand in the same line of employment, or that their duties, should be such as to bring them into habitual association,, so that they may exercise a mutual influence on each other promotive of proper caution. See 4 Thompson on Negligence, § 4970; 26 Cyc. p. 1279; Chicago, etc., R. Co. v. Moranda, 93 Ill. 302 (34 Am. Rep. 168). We cannot find, however, that this doctrine has ever found support in the decisions of this court. The definition of a fellow servant which has been approved repeatedly is found in McCauley v. Railroad Co., 167 Mich. 230, 236 (132 N. W. 510, 512), where this court said: “The general rule in this State, as repeatedly held by us, is that— “ ‘all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may he in different grades or departments of it, are fellow servants.’ Adams v. Iron Cliffs Co., 78 Mich. 271-288 (44 N. W. 270, 18 Am. St. Rep. 441).” In the application of this rule, it has never been held that the employees need be engaged in the same common work at the same time. It seems to be sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. See Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15) ; Caniff — 259 — v. Navigation Co., 66 Mich. 638 (33 N. W. 744, 11 Am. St. Rep. 541); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266) ; Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699). It will be noted that in the instant case the day and night shifts were engaged in exactly the same work; the incoming shift simply taking the place of the outgoing shift. In the case of Mirabile v. Murphy Co., 169 Mich. 522 (135 N. W. 299), a case relied upon by appellant, it appears that the plaintiff, who was a j anitress in the Penobscot Building in Detroit, was riding up an elevator at the time of the injury, but she had not as yet reached the place where her work began. This court held that up until the time she actually began to work she was not subject to the fellow-servant rule, because the relationship of master and servant did not exist. Likewise in the case of Moronen v. McDonnell, 177 Mich. 691 (143 N. W. 8), although the plaintiff was. an employee of the defendant, at the time of the accident he was not at work. The accident occurred during the noon hour, while the plaintiff was sitting on the grounds in the vicinity of the quarry, eating his dinner, and this court held that the relationship of master and servant did not exist —‘‘between him (the plaintiff) and defendant, in the strict sense requisite to make applicable the fellow-servant rule or the doctrine of safe place and duty to instruct due from master to servant.” Under the facts in this case, and under the law of this State as established by the decisions of this court, there can be no escape from the conclusion that the relationship of fellow servant between the employees of the day and night shifts did exist. It is also urged by counsel for appellant that the defendant owed the plaintiff the nondelegable duty to warn him of the existence of the dangers in this case. There is no question made but that the plaintiff himself — 260 — was an experienced miner, and, as he himself stated, was familiar with the work in which they were engaged at the time of the accident, and that it was usual and customary for the miners to do the work of retimbering. There is no question but that the men whom the defendant selected for this purpose were skilled and experienced in this particular line of work, and that they were engaged in the work of making a safe place. We think what was said by this court in Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394), is applicable here. “Under the undisputed evidence in this case, as far as performing his work was concerned, plaintiffs decedent was engaged in making a safe place, and it is self-evident that it would be an impossibility for the defendant to cause the timbering in this stope to be done in advance for the protection of the men who themselves were specially employed to' put in the timbering. The dangers were only those necessarily incident to the employment, changing from hour to hour, as the work progressed, and it is apparent that, by reason of the character of the work and the dangers attending it, miners of extraordinary skill and experience were selected, invested with power and authority to determine for themselves the safety of the place before going to work. This court has held that under, circumstances of this character the doctrine of safe place does not apply. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505).” The absolute and nondelegable duty to warn arises in this jurisdiction as an incident of the defendant’s duty to furnish and maintain a reasonably safe place for the plaintiff to perform his work. In the case before us the plaintiff himself was engaged in the very work of making the place safe, and, as we have stated, in such a case the doctrine of safe place does not apply. Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75) ; Koskell v. Mining Co., supra; Zap v. Mining Co., — 261 — 184 Mich. 437 (151 N. W. 554) ; Juntunen v. Mining Co., 184 Mich. 341 (151 N. W. 571) ; Mesich v. Mining Co., 184 Mich. 363 (151 N. W. 564) ; Vrelenich v. Mining Co., post, 407 (154 N. W. 39). Judgment is affirmed. Brooke, C. J., and Stone, Ostrander, Bird,, Moore, and Steere, JJ., concurred. The late Justice McAlvay took no part in this decision.