McMahon v. Ida Mining Co.

WiNslow, J. The nonsuit is attempted to be justified on the ground that the shift boss was a co-employee, and that thus the plaintiff’s injury resulted from the negligence of a co-employee. There is little or no dispute as to the principles of law on the subject, but the difficulty is in the application of the law. In Cadden v. Am. Steel Barge Co. 88 Wis. 409, it is correctly said: “ In Dwyer v. Am. Exp. Co. 82 Wis. 307, it was held that the question whether different employees of the same master are to be regarded as fellow-servants in a common employment depends upon the nature of the act in the performance of which the injury was inflicted, without regard to the rank of the negligent servant, and that the master is not liable unless the negligent act pertained to a matter in respect to which he owed a direct duty to the servant injured.” So the question here is simply whether the shift boss, Oadden, in sending the plaintiff to work in a new part of the mine, where there was a concealed danger of which he (the shift boss) knew, but the plaintiff did not, was performing a duty of the master. A master is bound to furnish the servant a reasonably safe place in which to work, considering the nature of the work. He is not to set a man at work among latent and extraordinary dangers, of which the employee knows nothing, and which he cannot ascertain by experience or observation. In taking the plaintiff from one part of the mine in which he had been at work and setting him at work in a different place, the shift boss was plainly and palpably acting in the capacity of master. The evidence tends to show that he knew of a concealed and terrible danger in the place, of which he did not inform the plaintiff, and that the plaintiff could not, in the exercise of ordinary care, ascertain the existence of that [312] danger. We entertain no doubt of the sufficiency of this evidence to take the case to the jury. Further evidence may perhaps show that the risk was a common and ordinary one in a mine of this character, and so was assumed by the plaintiff, or that the plaintiff should have known from the appearance of the hole that it contained the unexploded blast, but neither of these facts now appears so clearly that the court is justified in taking the case from the jury. By the Oowrt.— Judgment reversed, and action remanded for a new trial.