Miller v. Centralia Pulp & Water Power Co.

The following opinion was filed November 26, 190? : Siebeoebe, J. Appellant avers that the court erred in holding defendant liable for the negligence found by the jury. The jury found by their verdict that the want of a sufficient light on the elevator platform at the time of the accident was the proximate cause of the plaintiff’s injuries. It appears from the evidence, as above stated, that the want of sufficient light at the time and place of accident resulted from the turning off of the electric lights by the electrician in charge of the lights at the mill. He was empowered by the defendant and charged with the duty of turning the electric lights on and off, as he might find necessary under the varying conditions of the natural light The defendant had furnished all the light appliances necessary for the proper conduct of its business, and had committed to the electrician the duty of operating these appliances whenever it was necessary to furnish artificial light for the conduct of its business at the mill. The issue upon this branch of the case is whether or not it was the master’s duty, under the facts and circumstances shown, to turn on the light at this place so as to have sufficient light for the employees to do their work, or whether turning [319] on light at this place was an operative detail of the business, the performance of which it could commit to a competent servant. There is no, dispute in the evidence that the defendant furnished a proper and complete equipment for lighting the place where plaintiff was working when he was injured and that the electrician was a reasonably competent employee for the discharge of the duty assigned to him. The turning on and off of the electric light as the exigencies of the business might require under the varying condition of the natural light in the mill is in its nature an incident to the daily operation of the business. The furnishing of proper appliances for light is clearly a duty of the master, but, after they are furnished, the act of operating them is of the same character as the operation of any other appliance furnished by the master. True, the negligent operation of the electric light appliances under the circumstances of this case affected the safety of the place of work of plaintiff and other employees in the mill, but this does not necessarily make it more than the negligent operation of a detail by an employee which made a working place dangerous to other employees. The fact that a working place may be rendered unsafe by reason of the negligent operation by an employee of an appliance furnished by the master does not preclude the master from committing the operation of such an appliance to a competent employee, and any injury to an employee due to such negligent operation of the appliance is not a failure of duty by the master to furnish a safe place or appliance, but is a negligent act of the servant in the conduct of a common employment. We are of opinion that the negligence complained of is of the class incident to the daily conduct of defendant’s business, one wherein a servant is intrusted with the performance of a function pertaining to a customary operative detail, and therefore it was not the negligence of the master in failing to furnish and maintain a safe place for the employees to work. It is, however, contended that if the negligent act of the [320] electrician he considered an operative detail in tbe prosecution of tbe business sucb as tbe master could delegate to a competent servant, still tbe defendant is liable because tbe electrician and plaintiff, under tbe circumstances shown, are not fellow-servants. Tbe argument is made that tbe electrician was employed to perform a separate and distinct part of tbe work of running tbe mill and was given full control thereof by tbe defendant, and that bis duties were so completely separated from those of tbe plaintiff and tbe other mill operatives that be cannot be said to have been engaged in a common employment with them. The facts of the case do not support this claim under the rule of the adjudications of this state. That the plaintiff’s and the electrician’s duties were not so remotely connected as to remove them from a common employment appears from the following cases: In Okonski v. P. & O. F. Co. 114 Wis. 448, 90 N. W. 429, it was determined that this question is not “controlled by the fact that different parts of the work necessary to the general enterprise are placed in tbe hands of employees remote from each other, and receiving immediate command from different superiors, or, indeed, one from the other.” Many cases of this court are cited in support of the rule, and among them the following: In Howland v. M., L. S. & W. R. Co. 54 Wis. 226, 11 N. W. 529, tbe conductor in charge of a train engaged in clearing a track of snow negligently caused an injury to a sboveler on tbe track engaged at tbe same task and they were held to be fellow-servants. In Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269, a mason engaged with others in the erection of a water tank and windmill was injured by the negligence of tbe foreman in the management of the work. It was there held that the mason and the foreman were engaged in a common employment, and therefore that the master was not liable for such foreman’s neglect. In Fwald v. C. & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591, it was held that a workman in the roundhouse who was injured while crossing defendant’s tracks in going to the roundhouse to bis [321] work by freight cars being j ammed together by the trainmen was a fellow-servant of the trainmen. In the recent case of Williams v. North Wis. L. Co. 124 Wis. 328, 102 N. W. 589, the court states the rule to be that a master “may doubtless commit to the employees the details of the work, . . . made necessary by the ordinary prosecution of the business, . . . and such servants, thus prosecuting the work, . . . become fellow-servants, whatever their rank, so that the negligence of one by which others are injured is the negligence of a fellow-servant” — citing a number of illustrative cases. In MacCarthy v. Whitcomb, 110 Wis. 113, 85 N. W. 807, the rule formulated is, in substance, that if the injured and the negligent servant were employed by the same master, subject to the same control, and performing duties for the same general purpose, although not engaged in the same particular work, this makes them fellow-servants, and exempts the master from liability for the acts of the negligent servant. According to the principle of the foregoing cases aud those referred to therein, the facts and circumstances of the instant case clearly show that the defendant had committed to the plaintiff and the electrician who had charge of the electric lights operative duties which pertained to the customary and daily prosecution of its business, and they were thus engaged in a common employment. Since the facts of the case are without dispute upon this question, it devolved on the court to grant defendant’s motion to direct a verdict in appellant’s favor. MacCarthy v. Whitcomb, supra. By the Court. — Judgment reversed, and the cause remanded with directions that the court award judgment dismissing the complaint Winslow, O. J., and Basheobd, J., took no part. A motion for a rehearing was denied January 28, 1908.