Goff v. Chippewa River & Menomonie Railway Co.

PnwEY, J. It is the duty of the master or employer to furnish his servant or employee a reasonable safe place in which to perform his work, and suitable and reasonably safe instruments with-which to perform it. But it would seem that it is not sufficient to'charge the employer with neglect in this respect that he had hired one to work for him, and that he, without the knowledge, authority, privity, or consent of his employer, and of his own volition, entered upon the work of the employer in, and occupied in its performance, an unsafe and dangerous place, even though the same service had been performed at other times by other employees for the employer in the same place. The employer is responsible only for his express or implied direction to an employee to work in an unsafe or dangerous place. The work of the employer is to be under his own control, and under the responsibility which the law places upon him; and it is for him or his lawful agent to give such orders or directions as he may judge discreet in respect to the place where his employees shall work, having in view their skill, prudence, and experience. He or his rightful agent may assume the risk in any given case, but the employee cannot of his own mere unauthorized motion take the risk, and hold the employer responsible for disastrous consequences. The liability does not exist unless the employer or his agent knows, or has good reason to believe, that the employee, is serving him in a dangerous place or position; for without such knowledge the duty of warning or protecting the employee does not arise and will not exist, for the plain reason that the liability is not absolute, but relative, and is founded solely on the employer’s [244] negligence, which cannot be affirmed without knowledge or notice of duty in the particular instance, such as would warn the employer and afford him a fair opportunity to discharge it. In the present case it is found by the verdict that “ the plaintiff, when injured, was not engaged in the regular course of his duties as one of the defendant’s employees at the placé where directed by defendant’s servants charged with the duty of designating the proper place for the performance of such duties.” The defendant is a corporation, and could act and give direction only by or through its proper officer or agent. There is no pretense that any one in fact assumed on behalf of the defendant to direct where the plaintiff should work, or what he should do, except the foreman, Moore; and as to him the court withdrew from the consideration of the jury all he said or did in that direction, on the ground that the evidence would not warrant them in finding that Moore was charged with the duty of locating the plaintiff at his work, or with the duties of-principal, and that Newton Mills must be considered to have been such ágent. The result is.that it has been established by the verdict that Mills did not act in the premises at all, and the court decided as a matter of law that Moore had no authority to represent the defendant in relation thereto. There is no ground for contending that any other officer or agent of the defendant assumed any authority or direction in the premises. There was, therefore, a total failure to bring home to the defendant notice or the knowledge of any duty it was bound to exercise as to the plaintiff, and it was therefore called on to exercise no protection or means on its part to guard him from injury at the place in question. It was necessary that there should have been some business relation or privity between the plaintiff and defendant in order to raise the duty which it is charged that the defendant neglected. [245] The gist of the action is the alleged negligence of the defendant; that is to say, that there was the absence of that degree of care required by the particular circumstances of the case. Cooley, Torts, 630; Railroad Co. v. Jones, 95 U. S. 441; Vaughan v. Taff Vale R. Co. 5 Hurl. & N. 679. “ To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty. . . . It is not enough to show that the defendant has been guilty of negligence without showing in what respect he was negligent and how he became bound to use due care to prevent injury to others.” Gautret v. Egerton, L. E. 2 C. P. 375; Cahill v. Layton, 57 Wis. 614. That the duty of the defendant in such a case as this is relative, and not absolute, is well illustrated in Griswold v. C. & N. W. R. Co. 64 Wis. 657; Gillis v. Penn. R. Co. 59 Pa. St. 143; Jenkins v. C., M. & St. P. R. Co. 41 Wis. 112; Cole v. McKey, 66 Wig. 510. Eor want of some proper or authorized direction to the plaintiff, express or .implied, to work at the alleged dangerous place where he received his injury, raising the duty on the part of the defendant alleged to have been neglected, we think that the recovery in this case cannot stand, and that the case in this respect is, in principle, quite like the cases cited. The judgment of the circuit court seems to" have been ■ rested on the ground that it was found by the jury that the place where the plaintiff got injured was 'the place where the work he was doing -had previously ordinarily been performed, to the knowledge of the defendant’s agent, Mills, and was the place provided by the defendant for the performance of the work plaintiff was engaged in, and was not a reasonably safe place for that purpose, and that the proximate cause of the plaintiff’s injury was a want of ordinary care on the part of the defendant in not providing him a reasonably safe place for him to be while doing his work. The' last finding is, we think, clearly inconsistent [246] with the first and fourth findings, to the effect that when injured he was nob engaged in the regular course of his duties at the place where directed by defendant’s servants charged with the duty of designating the proper place for the performance of such duties, and that the place where he was injured was the place provided by defendant for the performance of the work he was engaged in. The first and fourth findings are also inconsistent with each other. Besides, as we have seen, all evidence to sustain findings consistent with the first' that would warrant a judgment for the plaintiff was, in effect, withdrawn from the consideration of the jury. It appears that the plaintiff was inexperienced in the particular work he was engaged in, and had but an imperfect knowledge of the surroundings and its danger. Even if he knew that the place in question was where the work had ordinarily been performed and had been provided by the defendant for that purpose,- which was not shown, he had no right, of his own mere motion, without any previous direction, express or implied, to assume to work therein for the defendant; for, although its employee, as to the particular work in hand he took the risk on himself in thus acting without the knowledge or authority of the defendant, express or implied. We consider the verdict so inconsistent and uncertain, and in important respects not warranted by the evidence as left to the jury by the court, that it cannot sustain the judgment. There is a conflict in the testimony between Mills and Moore, the foreman, as to the authority of the latter to have spoken and acted for the defendant on this occasion. Upon this question there is no finding. Moore had acted as the foreman of the defendant, it would seem, for a considerable time, and was apparently exercising, in the absence of Mills, control of the men and the work. The situation and the circumstances, all considered in connec [247] tion with the evidence, tend to' show that Moore had authority to direct, in the absence of Mills, where the plaintiff should work, and that that question might properly have been submitted to the jury. The extent and nature of Moore’s authority is not to be judged wholly by what either he or Mills testified in respect to it. The course of business, the attendant facts and circumstances, are also to be considered, and are quite as decisive as the opinions of these witnesses. Besides, we think it was the duty of the company to have some one in attendance on so considerable a force of men engaged in a business necessarily of a somewhat dangerous character, to see that they had reasonably safe places in which to do their work. We .do not think that the defendant should be permitted to abdicate its proper functions on such occasions, and permit its superintendent to go away and let the business, as he expressed it, “ run without anybody in control of it,” and then disclaim all liability in the premises. If Moore was foreman, and directed the plaintiff where to work, and was in fact apparently in charge of the men and work, and the plaintiff obeyed him, it ma}7 be that, as against the defendant, taking the benefit of his acts in that capacity in carrying on its work, his apparent authority should be held to be the real one, and the defendant be bound by his acts. But, as the question is not fairly presented by the record, we reserve it for further consideration after another trial, if occasion shall require. Without considering other questions argued, we think, for the reasons stated, that the verdict should have been set aside and a new trial granted, and that for want of a sufficient and consistent finding on the question of defendant’s negligence the judgment cannot be sustained. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.