Grams v. C. Reiss Coal Co.

[6] The following opinion was filed February 21, 1905: SiebeokeR, J. The evidence relating to the controversy is practically undisputed. The plaintiff asserts the liability of defendant under the proofs submitted, upon the grounds that defendant has failed in its duty in two respects: (1) A failure to provide reasonably competent and careful fellow-seiwants; and (2) a failure to keep the tools and apparatus furnished to conduct the business in a reasonably safe condition of repair. The jury found that defendant had failed in its duty in both respects, and that such negligence proximately caused the injuries complained of. The defendant requested the court to rule that the evidence established no grounds of negligence in respect to the duty of providing reasonably competent and careful servants to-work with the deceased for the defendant in the common employment of transferring coal. An examination of the evidence justifies appellant in urging an exception to the ruling, of the court refusing this request. It is shown that the two employees (Bierman and Radlaff) operating the derrick and brake attachment had been engaged in such employment on like and similar machines for many years prior to the time of the accident, and, so far as shown, had theretofore performed their duties carefully and competently. It also appears from their management and operation of the machine on the occasion in question that they had a comprehensive understanding-of the appliance and understood how to' make the needed repairs and adjustments liable to require attention in its ordinary use, and there is no proof that prior to the time in question they had ever performed their duties in a careless manner. This state of facts establishes no negligence on the part of defendant in providing reasonably careful and competent servants and in retaining them in its service. It is true there is proof tending to show they were careless in testing the brake after readjusting some of its parts at the time of the accident,. [7] biit such proof is not sufficient to charge the master with negligence, since no prior occurrence of such or similar conduct, tending to establish negligence, is shown, which could have come to the defendant’s knowledge, or which, in the exercise of reasonable care, it ought to have known. "When there is nothing to" show but that due care is exercised by the master in the choice of servants, a presumption of fitness arises which continues until overcome by proof of specific acts or conduct tending to show incompetency and negligence which either came to the master’s knowledge, or which, by exercising ordinary care, he ought to have known. Baulec v. N. Y. & H. R. R. Co. 59 N. Y. 357; Mich. Cent. R. Co. v. Gilbert, 46 Mich. 176, 9 N. W. 243. The court also held that the evidence justified the finding that defendant was negligent in repairing the brake attachment of the derrick, thereby making it an unsafe appliance, and that such negligence proximately caused the injuries to deceased. The fact that the brake was defective is not disputed, nor is there any substantial controversy as to what caused the defective operation of it when the accident happened. As above stated, it resulted from the acts of those who operated the hoisting derrick.' Bierman, one of the servants operating the brake, found that a part of the brake needed readjustment or repair because the wooden friction blocks had been worn and no longer locked the coil drum which held the filled coal bucket in place when it was raised to the end of the boom. In making this repair he followed the customary practice and the specific direction of the defendant’s superintendent that the persons employed to operate the derrick should make all necessary repairs and readjustments of parts of the brake resulting from the wearing away of the friction blocks, and should make the other ordinary repairs involved in the daily use of the machine. It is perfectly clear that the specific act of negligence relied on in the making of the repairs of this brake attachment was one of the incidental repairs, or read [8] justment of parts of the machine, coming within the detail of the daily work of the operator of the derrick, and as necessary to he done in the ordinary prosecution of defendant’s business. Under such circumstances the master fulfils his measure of duty if he provides reasonably competent and careful persons to perform this work and if he supplies proper and suitable material for keeping the apparatus in a proper condition of repair. Such incidental repairs and readjustments of parts of appliances as arise within the detail of the work in the ordinary prosecution of a business, and which can easily be remedied by workmen, are not to be classed with those which are unusual in their nature and permanent in character, or which are such as require the help of a skilled mechanic. A person rendering the former kind of services is doing servant’s duty for his master, and is a fellow-servant to all others who are employed in the common service, while those performing the latter class of services are acting in the master’s place or as rice-principals to those employed with them in conducting the master’s business. Since the decedent’s injuries were caused by the acts and conduct of Bierman and Radlaff, who, under the facts of the case, are fellow-servants, and no negligence being shown on defendant’s part, there is no liability by it for the damages sustained by the plaintiff. The doctrine controlling on this branch of the ease, as stated in Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, arises out of the implied contract between the master and servant: “Where the facts show that in the understanding of both parties a class of ordinary repairs are to be made by the servants with materials furnished by the master for'that express purpose; that they and he regarded it as a detail of their own work; that it is something entirely within their capacity, and not dependent upon the skill of a special .expert; and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master, — the inference is inevitable that the contract relation between the par [9] "ties makes it a duty of the servants and a detail of their work 'to correct the defect, when it arises, with the materials furnished.” Okonski v. Pennsylvania & O. F. Co. 114 Wis. 448, 90 N. W. 429; Portance v. Lehigh Valley C. Co. 101 Wis. 574, 77 N. W. 875; Van den Heuvel v. National P. Co. 84 Wis. 636, 54 N. W. 1016; Williams v. North Wis. L. Co. 124 Wis. 328; Quigley v. Levering, 167 N. Y. 58, 60 N. E. 276; Kimmer v. Weber, 151 N. Y. 417, 45 N. E. 860; Ling v. St. P., M. & M. R. Co. 50 Minn. 160, 52 N. W. 378; Wosbigian v. W. & M. Mfg. Co. 167 Mass. 20, 44 N. E. 1058; Kehoe v. Allen, 92 Mich. 464, 52 N. W. 740; Nord Deutscher Lloyd S. Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619. A verdict should have been directed as requested, upon the grounds above stated. By the Court. — Judgment reversed, and the cause remanded with directions to enter judgment dismissing the complaint. KeRwin, J., took no part. A motion for a rehearing was denied May 2, 1905.