Orman v. Salvo

LOCHREN, District Judge, after stating the case as above, delivered the opinion of the court. As the defendants did not, by any pleading or otherwise, before the trial, raise any question of variance in respect to their own proper names, but in their answer adopted as their own the names by which they were designated in the complaint, it was too late upon the trial to first make that objection. The question of whether warning of the coming blast was given to the plaintiff was fairly left to the jury, with instruction that if he had such warning, and failed to go to a place of safety, he was not entitled to recover. The argument principally relied on by defendants’ counsel—namely, that if the plaintiff was not warned of the coming danger, the failure to give such warning was the negligence of a fellow servant—cannot be maintained upon the pleadings and evidence in this case. To permit the application of the fellow-servant doctrine, the injured servant must at the time of the injury not only be serving the samé master, but be engaged in the same employment with the negligent servant who caused the injury. Wood, Mast. & Serv. § 435. The [235] answer admits that defendants furnished the tent for boarding their employés, and for their lodging, and that it was the custom and rule of defendants to have one of their employés warn every one in the vicinity of a blast of the fact that it was about to be discharged, and that plaintiff was at the time of this blast in the tent, resting between his intervals of labor. The evidence shows without contradiction that plaintiff was boss of a night shift, and was not engaged in work, but resting and sleeping in the tent from 6 o’clock in the morning till 7 o’clock in the evening every day, and that the blast which caused his injury was discharged about 3 o’clock in the afternoon, during his time for rest and sleep. Plaintiff occupied the tent, not as a boarder or tenant, but as a servant of the defendants, and his board and lodging was received in part compensation for his services. Wood, Mast. & Serv. § 155. But while engaged at his meals or wrapped in slumber he was performing no services for the master, and being in the performance of no employment, but obtaining and enjoying compensation from the master, he was not during such time the fellow servant of any of the employés who were at work, about which he was in no way engaged or assisting. He was not in the condition of a servant who is being conveyed in a car to his work, but was as much separated from it as if he had been sleeping in his own home a mile away. The master, who had furnished him this lodging, located at a place made dangerous by the discharging of blasts in conducting the master’s business, owed him the duty of giving him timely warning, to enable him to avoid the danger. The verdict determined the fact that this duty was not performed, and that plaintiff’s injuries resulted from this failure. There were no errors in the rulings or charge of the court which are prejudicial to the defendants, and the' judgment is affirmed. Footnotes [¶] 3. Who are fellow servants, see notes to Railroad Co. v. Smith, 8 C. C. A. 668; Railway Co. v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286. See Master and Servant, vol. 34, Cent. Dig. § 383.