Knudsen v. La Crosse Stone Co.

Maeshall, J. So it will be seen the defendant, in the legitimate pursuit of an important industry, a vocation which it was as important to the public and defendant’s employees should be carried on as to the defendant itself, sent a crew to its stone quarry propex-ty for the purpose of operating the same. The working place was safe as the crew took possession thereof. Thereafter they necessarily made, in great part, their own respective working places. The safety of one was greatly dependable upon the conduct of his fellows. All were employed in the common employment. Erom day to day the work went on. Proper regulations, SO' far as any were required, were made. The working place was in proper condition in the morning in question. So far as ap — 399 — peared to respondent up to the instant of the accident, the •foreman and all associated with the blaster, Mr. Knudsen, were reasonably careful men and competent, in every way •for performance of the duties assigned to them. The instru-mentalities furnished for the work were all right. It was left to the crew so organized and equipped to do the work, the •foreman being specially charged to look after the safety of ■the men and, particularly, as regards dangers from being in •the pathway of earth and rock that might roll down the bluff. The operation which resulted in creating the danger was ■conducted for considerable length of time and not more than .about twenty-five feet from Knudsen’s working place. While he may have been so circumstanced that he could not -see the person at work while creating the danger, the manner :and kind of work was such that he must have known what was going on and known when, later in the day the workman left the point above on the crest of the cliff and joined him, that the strip^ of earth and rock the former had been endeavoring to disengage had not been thrown down, though it must be tíiere was no appearance of danger of its falling which he •observed or could well have observed. As Knudsen was working in supposed security, the very person aiding him who had been the immediate instrumentality in making the working place unsafe, and the foreman who had charge of the whole work and aided manually from time to time, near by, no one apparently appreciating the •danger, the chunk of frozen earth came loose, rolled down the cliff, and in an instant, as it were, Knudsen .was swept •over the cliff and his life terminated with the necessary distressing consequences to those dependent upon him. Thus passes before us another of those tragedies which are •constantly recurring in the drama, so to speak, of our official life. Is there a remedy for the damage caused by the inadvertent taking of Knudsen’s life ? The question is not •whether there ought to be a remedy from the viewpoint of — 400 — moral standards. It matters not bow mucb we may think such sacrifices should be compensated in some way and that the loss must inevitably be paid for in the end by the mass of mankind, if not in a way to reimburse appreciably those upon whom the loss first falls. Courts cannot shape their decrees to meet their personal ideas or merely satisfy human sensibilities to human sorrow and suffering; moreover, at the expense of those neither guilty of a legal or moral wrong. The world does not appreciate the high order of courage and firmness required to deal with these painful tragedies and at all times be reasonably sure of judgment reigning supreme instead of being swayed by sympathy which we may venture to say is no more keenly felt than by the judges of our courts. However, to execute their functions they must, the best they can, come up to the high ideal of this picture so truly and so beautifully painted by Chief Justice RyaN and which is to go down the ages inscribed upon the shaft erected in his honor: “In other places in life, the light of intelligence, purity of truth, love of right, firmness of integrity, singleness of purpose, candor of judgment are relatively essential to high beauty of character. On the bench they are the absolute condition of duty. The judge who palters with justice, who is swayed by fear, favor, affection or hope of reward, by personal influence or public opinion, prostitutes the attribute of Grod and sells the favor of his Maker. But the light of God’s eternal truth and justice shines on the head of the just judge and makes it visibly glorious.” So the only question before us for decision is this: On the undisputed facts disclosed by the evidence, has appellant a legal remedy against respondent? It cannot be decided by any system of arbitration. It cannot be decided by bending established principles out of their legitimate sphere or developing new ones to meet the dire necessities of the particular case. That the time is at hand when a just way will be found for transferring the loss inflicted by such sacrifices to — 401 — so broad a field that all will be compensated and tbe participating compensators carry the load and think the burden light if they appreciate it at all, — the writer has faith. As we view the case it is governed by a few legal principles. We will endeavor to state them briefly, concisely, and with but little discussion. Their application to the facts will be seen easily from their logical arrangement. A master owes the duty to his servants of furnishing them a reasonably safe place in which to do their work, of using ordinary care to keep such place reasonably safe, of furnishing them reasonably safe instrumentalities with which to perform their work, and of exercising ordinary care in the selection of servants whose work would otherwise imperil the personal safety of their fellows. The presumption of fact, at the start, as to any given situation where liability of the master to the servant or through him is in controversy, is that the duties of the former, indicated, have been performed, and such presumption should prevail wherever the fact is called in question till overcome by evidence establishing the contrary to a reasonable certainty. The master having furnished his servant a safe working place and satisfied the other conditions, or put such servants to work under such conditions that they must necessarily or reasonably make their own working place, or the place originally furnished is changeable naturally by the members of the crew as the work progresses, dangers thus created are not attributable to the master. Peschel v. C., M. & St. P. R. Co. 62 Wis. 388, 21 N. W. 269; Walaszewski v. Schoknecht, 127 Wis. 376, 106 N. W. 1070; Miller v. Centralia P. & W. P. Co. 134 Wis. 316, 113 N. W. 954. The master having complied at the start with the conditions mentioned, negligent conduct of one or more of a working crew proximately causing injury or death of an associate, is negligence of a fellow-servant and not breach of duty of — 402 — the master. Who is and who is not a fellow-servant depends upon the nature of the service. So the foreman of a crew in exercising his functions as such in the common employment to accomplish a common purpose under one general management, some working at one detail, and some at another, is a fellow-servant, and the negligence of one is not attributable to the master except where aside from his fellow-servant duty that one performs by direction, express or implied, the work of the master as regards safe instrumentalities and safe fellow-servants or a safe place to work. To illustrate the rule that where' a working crew necessarily makes the working place, or places, for the members thereof or in due course constantly or at brief intervals change the same, we have this: A crew under a foreman was employed to erect a water tank. The working place in general and particular was under the control of the foreman and as to one member of the crew upon 'a particular occasion was dangerous causing an injury to him. The negligence was held to be that of a fellow-servant. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269. In situations, in general, where the dangers of a working place are created by the servants themselves including the foreman and changed from time to time in the due course of operations the safe-place rule does not apply. Strehlau v. John Schroeder L. Co. 142 Wis. 215, 125 N. W. 429. That was applied to a quarry crew in Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22, where a piece of rock rolled down on to a workman very much as in this case, and again so applied in Pern v. Wussow, 144 Wis. 489, 129 N. W. 622, where the fact was that a chunk of frozen dirt was cracked off by a workman, as was the case here, and it rolled down and injured a fellow workman. The following are illustrations of the rule that the fore — 403 — man of a working crew carrying out the details of an enterprise is a fellow-servant of the men under him: A gang in the erection of a water tank. Peschel v. C., M. & St. P. R. Co., supra. That case applies to the safe-place rule and this feature of the law as well. A gang engaged removing a heavy machine out of a car and into a factory. Hamann v. Milwaukee B. Co. 127 Wis. 550, 106 N. W. 1081. A crew laying gas mains. Gereg v. Milwaukee G. L. Co. 128 Wis. 35, 107 N. W. 289. The men engaged in removing a pile-driver. McKillop v. Superior S. Co. 143 Wis. 454, 127 N. W. 1053. A conductor is the fellow-servant of a train crew under him. Pease v. C. & N. W. R. Co. 61 Wis. 163, 20 N. W. 908. The master of a vessel of his mate and other members of the crew. Mathews v. Case, 61 Wis. 491, 21 N. W. 513. The dock foreman and his crew as to all details of their general employment. Okonski v. Pennsylvania & C. F. Co. 114 Wis. 448, 90 N. W. 429. The foreman of a blasting crew and the men under him. Wiskie v. Montello G. Co. 111 Wis. 443, 87 N. W. 461. Now look upon these familiar and thus plainly illustrated principles and then on the picture of this case. Does not the one fit the other perfectly ? No complaint about the working place except as to the change created by Mr. Knudsen’s associates after the crew went to work in the morning. No complaint about suitable- tools or fellow associates up to the time of the accident. The foreman was very close to the members of the crew, going now here and now there, directing operations; taking part from time to time in the physical labor, helping this one and then that one as occasion required or opportunity afforded. But a few hours before the accident he, with'Knudsen and another, or others, worked clearing off loose dirt a short distance from where the fatal occurrence took place. The breaking down of earth and removing it from over the rock to be quarried was one of the ordinary and — 404 — frequent operations in the quarry, particularly in the vicinity of where Knudsen was required to work and preparatory to such work. It was from every viewpoint one of the plainest of details in producing the general result to be accomplished. If due care on the part of the master required promulgation of rules in respect to preventing such dangers as that in question it seems that was done and the difficulty was respecting proper observation thereof. Would it not be a plain violation of the stated principles to hold that it was the duty of the master to be present in person or by proxy with reference to such details as those mentioned? Such a rule would be utterly impracticable of observation. Here the master took the precaution to admonish the foreman to be alert in preventing just such dangers as the one which proved fatal to Knudsen; but that was plainly one of his ordinary duties as foreman, the proper performance of which Knudsen and all members of the crew took the chances of as ordinary risks of their employment. Such admonishment instead of being regarded as a transference of the master’s duty to the foreman and so fix the negligence of the latter upon the former should be viewed as an extra and creditable precaution exercised to the end that the foreman as one of the crew should see that the particular detail was properly attended to. So we cannot see any escape from the conclusion that the negligence which terminated the life of Knudsen is that of the man who loosened the bank of earth leaving it in a dangerous condition and then went to work with him in the line of danger from it, without informing him thereof, or the negligence of the foreman, or both, in any event, within the fel-' low-servant rule. Principles of law which are as binding on this court as written law, command it, furnishing one more in number of illustrations of the necessity for some practicable way of dealing with industrial accidents, mini — 405 — mizing tbe misfortune thereof in line with the enlightened spirit of the age which has been responded to in most every civilized country but our own, and which only the lawmaking power can furnish. By the Gowrt. — The judgment is affirmed.