Wiskie v. Montello Granite Co.

Cassoday, C. J. The gist of the complaint is that the defendant negligently failed to furnish to the plaintiff a reasonably safe place in which to work, and to keep and maintain the same in a reasonably safe condition. This is made more plain by the allegations therein to the effect that Fender improperly prepared the blast; that he knew, or ought to have known, that it had not wholly exploded on Friday; that tlhat made it his duty to renew the blast, as stated in the expert testimony; that he negligently failed tq do so, and then negligently and carelessly set the plaintiff to work on the rock on Monday to remove and separate the same from the main body by glutting, as indicated in [449] the testimony. In other words, the negligence complained of is the negligence of Pender, who, with the assistance of the plaintiff, prepared the blast on Friday. Pender and the plaintiff had together worked in that quarry for fourteen years prior to the accident. During that time Pender had had charge of the men, and personally conducted the blasting. In doing so he was assisted by others, including the plaintiff. Such blasting occurred two, three, or four times a week, and sometimes two, three, or four times a day. Never before the occasion in question had a blast failed to fully explode. There is no pretense of any negligence on the part of the defendant, except in what Pender so did and so omitted to do on the occasion in question. The question recurs whether the plaintiff can recover from the defendant by reason of such negligence on the part of Pender. The defendant contends that there can be no recovery, by reason of the fact that the plaintiff and Pender were co-employees in the work of such blasting. The plaintiff contends that they were not co-employees. All must agree that at common law the master is not responsible for injury to a servant caused wholly by the negligence of a fellow-servant. Courts differ, widely, however, as to who constitute such fellow-servants. In this state, and most of the other states, it is firmly settled that it does not depend upon the grade or rank of the servant whose negligence caused the injury, but upon the nature of the service being performed by them and in which the negligence occurs. Dwyer v. Am. Exp. Co. 82 Wis. 307, and cases there cited; Kliegel v. Weisel & V. Mfg. Co. 84 Wis. 148; Stutz v. Armour, 84 Wis. 623; Hartford v. N. P. R. Co. 91 Wis. 374, 379; Prybilski v. N. W. C. R. Co. 98 Wis. 413; Dahlke v. Illinois S. Co. 100 Wis. 431; Portance v. Lehigh Valley C. Co. 101 Wis. 574; Adams v. Snow, 106 Wis. 152; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 5, 6; Liermann v. Milwaukee D. D. Co. 110 Wis. 599. For earlier [450] cases iri this court see Toner v. C., M. & St. P. R. Co. 69 Wis. 197, 198. The rule stated is mentioned in a standard work as the “ approved doctrine,” and the authorities cited from most of the states and the English courts justify the statement. 12 Am. & Eng. Ency. of Law (2d ed.), 933-942. The supreme court of the United States has repeatedly affirmed the rule mentioned, especially during the last few years. Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 379-390; Central R. Co. v. Keegan, 160 U. S. 259; Northern Pacific R. Co. v. Peterson, 162 U. S. 346; Northern Pacific R. Co. v. Charless, 162 U. S. 359; Martin v. A., T. & S. F. R. Co. 166 U. S. 399; New England R. Co. v. Conroy, 175 U. S. 323. See, also, Stevens v. Chamberlain, 51 L. R. A. 513, and note. These cases overrule Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377, and disapprove the rule in force in Ohio and some other states. In most of the cases cited the foreman or manager of the work was the person guilty of the negligence complained of. Thus the supreme court of the United States has expressly held that: “A common day laborer in the employ of a railroad company, who, while working for the company, under the order and direction of a section boss or foreman, on a culvert on the line of the company’s road, received an injury by and through the negligence of the conductor and of the engineer in moving and operating a passenger train upon the company’s road, is a fellow-servant with such engineer and such conductor in such a sense as exempts the railroad company from liability for the injury so inflicted.” Northern Pacific R. Co. v. Hambly, 154 U. S. 349, 355, 356. In that case Mr. Justice BeowN, speaking for the court, states the rule as indicated, and cites cases in support of it from fifteen states, including Wisconsin. He also cites cases holding the contrary doctrine. That cas,e is quite similar in its facts and ruling to Cooper v. M. & P. du C. R. Co. 23 Wis. 668, and Toner v. C., M. & St. P. R. Co. 69 Wis. 197— 199. So. in a more recent case the supreme court of the United States has held that: [451] “ Where the business of a mining corporation is under the control of a general manager, and is divided into three departments, of which the mining department is one, each with a superintendent under the general manager, and in the mining department are several gangs of workmen, the foreman of one of these gangs, whether he has or has not authority to engage and discharge the men under him, is a fellow-servant with them; and the corporation is not liable to one of them for an injury caused by the foreman’s negligence in managing the machinery or in giving orders to the men.” Alaska M. Co. v. Whelan, 168 U. S. 86. Counsel cite Promer v. M., L. S. & W. R. Co. 90 Wis. 215, in support of their contention that the defendant is responsible for the negligence of Pender. But that case has recently been limited to the proper selection and instruction of a sufficient number of competent servants to properly, do the work. Portance v. Lehigh Valley C. Co. 101 Wis. 579. Counsel insist that this case is ruled by McMahon v. Ida M. Co. 95 Wis. 308. In our judgment, that case is clearly distinguishable from the case at bar. In the statement of the case it is said: “The gist of the complaint is that the plaintiff was set to work by a shift boss in a certain part of the mine where there were concealed unexploded blasts known to.the shift boss, but not to the plaintiff; and that plaintiff, in ignorance of the danger, while drilling and preparing for a bLast, was injured by the explosion of one of the concealed blasts.” It is further stated, iff effect, that the shift boss, Thomas Cadden, testified that July 1, 1894, he loaded six holes in the forehead of a certain drift with dynamite, and endeavored to explode the same by electricity; that there were three holes that had wires sticking out of them after the blast had been fired; that no further work was done at that place in the mine- until July 17,1894, at which time the shift boss placed the plaintiff and one Hugh Cadden at work at the forehead in question. McMahon himself testified that he commenced work in the mine June 19,1894; that he first worked back towards the shaft from the forehead, the further [452] end of the' diggings,— from the west to the east, between the shaft and the forehead; that he worked at that place near the shaft about two weeks; that after that they moved down about 100 feet away, and worked there probably a week, and July 17th they started1 to work up in the forehead,— right at the forehead; that there had not been anybody working in that forehead just before for a while, — not for a couple of weeks, he should judge. That was the place where the explosion occurred which injured McMahon. It is very obvious that McMahon was not at work at that place July 1st, when the partial explosion took place, nor at any time until he was put at work there by the shift boss, July 17, 1894; and consequently he was put in a new place to work, which the shift boss knew to be dangerous, but of which he was ignorant. The admitted facts in the case at bar are very different. Ve must hold that the plaintiff in this case was a fellow-servant with the foreman, and hence that thé defendant is not responsible for the negligence of Pender. Besides, the plaintiff and Pender had worked together in the quarry for fourteen years in the same kind of service, and having the same relation to each other, and hence we must hold that the plaintiff assumed the risk. This view is supported by the authorities cited. See, also, Paule v. Florence M. Co. 80 Wis. 350; Showalter v. Fairbanks, M. & Co. 88 Wis. 381; Dougherty v. West Superior I. & S. Co. 88 Wis. 343; Mielke v. C. & N. W. R. Co. 103 Wis. 1. By the Cowrt.— The judgment of the circuit court is affirmed.