Cybur Lumber Co. v. Erkhart

GRUBB, District Judge (after stating the facts as above). The" plaintiff in the court below relied upon one ground of negligence only, namely, that the defendant was guilly of negligence in that it did not exercise reasonable care to furnish the plaintiff with a safe place in which to work. It was not contended that any part of the plant or appliances used by the defendant were defective. It was not contended that the place where the work was being performed by plaintiff and his fellow workmen was negligently unsafe, when the work was commenced on the morning of the day of the accident. The contention . was that it became unsafe after the work was entered upon by reason of a tree having been broken during the progress of the work by one of the logs moved by the skidder, and having been left suspended from the trunk, at the point of the break, and lying parallel, to a guy line used in the work, for an unreasonable length of time. The plaintiff and his fellow workmen had been directed by the leader of the gang, Clark, to prepare to move' the skidder and to dismantle its rigging for that purpose. After giving this direction, Clark temporarily left the spot and was not present when the plaintiff sustained his injury. After he had [753] departed, Gibson, a fellow workman of plaintiff, who was up the tree to which the guy lines were fastened, asked the plaintiff, who was seated on the ground at one side, to give the guy line, along, but not upon, which the broken tree lay, slack so as to enable Gibson to unloose the wire from the erect tree up which he was. While the plaintiff was attempting to give slack to the guy wire, as requested by Gibson, the broken tree top fell on him, -causing his injury. It may be assumed that the plaintiff was in the discharge of his duties when injured. [ 1 ] It is clear that all of the workmen engaged with the skidder, including Clark, on the day of the accident, were fellow servants of the plaintiff, within the common-law rule of nonliability, which governs the relations of master and servant in Mississippi, except in case of railroad employés. The case of Moss v. Compress Co., 202 Fed. 657, 121 C. C. A. 67, is different from this case, in that in that case the servant, who was held to be a vice principal, was in complete charge of the work of dismantling a compress at a distance from the usual place of business of the defendant, with no one superior to him in the service at the place of work, and with complete control over the means and methods to be employed in the work of demolition. In this case, the evidence shows that the defendant had a superintendent in charge of its operations in the woods, under whom Clark was working and with authority to direct Clark in the means and methods of such operations. The work being done at the time of the accident was part of those operations. It is true that the superintendent was not at the place where the accident happened on the day it happened. It is, however, true that he was in charge of the department of work for the defendant in which the plaintiff was engaged when injured, and that Clark was subordinate to him in that department. It follows that Clark was not in charge of a department of the defendant’s service in the sense that would constitute him a vice principal- under the federal decisions. We think therefore that the nonliability of a master in Mississippi for the default of a fellow servant precludes a recovery by the plaintiff for the negligence of Clark in this case. [2] It is contended, however, that the negligence of Clark was in not removing the fallen tree, after its fall and before the accident, and that, a reasonable time having elapsed between these events, Clark’s failure constituted negligence in the matter of defendant’s nondelegable duty of furnishing the plaintiff a reasonably safe place in which to do his work, and that the fellow-servant rule is no protection to defendant against such a breach of duty. This argument would prevail but for the conceded fact that Clark was guilty of no negligence in the original selection and equipment of the place of work, in the doing of which his acts were binding on the defendant, though he was a mere fellow servant of plaintiff but, if at all, only in the failure to correct a condition that arose after the work had -been entered upon, during its progress, and which was caused by the conduct of the workmen themselves or some of them. It is also true that no vice principal of the defendant was at the place of work, after the condition complained of arose, and saw or should have seen the danger in time to have remedied it before the plaintiff was hurt and negligently failed to do so; nor was there [754] shown any negligent failure on the part of the defendant to exercise such supervision as was essential'to due care. The facts in the record present the ordinary case of an employé, who has been originally furnished with a safe'place in which to do his work by his master, injured by a defective condition which arose thereafter and which was created by the fellow servants of the injured employé during'the progress of the work and as an incident thereto. It is well settled that an injury due to such a defective condition is caused by the negligence of a fellow servant with respect to a duty that is delegable by the master, and for which the master is not liable. In a case of this kind, the principle that the master is liable when the injury is due to the. concur ring neglir gence of himself and that of a fellow servant of the injured person does not obtain, since the negligence in this case was that solely of the fellow servant, and of a kind not legally attributable to the master. In the case of Dunn v. Great Lakes Dredge & Dock Co., 161 Mich. 551, 126 N. W. 833, the court said: “A master is under no duty to provide a safe place to work, wliere tire dangers from the place of work arise from the changing conditions in the progress of the work.” In the case of Bennett v. Chrystal Carbonated Lime Co., 146 Mo. App. 565, 124 S. W. 608, the court said: “Where the place in which a servant works is reasonably safe, and it is the,, particular work done that renders it unsafe, and the dangers are transitory and inherent in the manner in which the work is done, and the servant performs the work in his own way, the rule requiring a master to furnish a reasonably safe place does not obtain.” In Morgan v. Wabash R. Co., 158 Ill. App. 344, the court said: The rule that a “master must use reasonable care to furnish a reasonably safe place for his servant to work * * * is * * * subject to * * * one universal exception, ' * * * that where the master has used reasonable diligence to provide a reasonably safe place for the servant to perform his work, and in the prosecution of that work changes are produced in the conditions of the place where the servant is required to work and these conditions are in the performance of the work for which the servant is employed and only temporary, the rule does not require the master to keep the place reasonably safe at all times under such changed conditions, and the rule has no application where the master does not make or create the conditions, but they are created by the progress of th'e work and the men engaged in it.” There are many other cases cited in the brief of plaintiff in error to the same effect. We regard the exception too well established to require the citation of further authority. Dor the reasons assigned, we think a verdict should have been directed for the defendant upon the evidence in the record, and the judgment is for that reason reversed, and the cause remanded to be proceeded with in conformity with this opinion. Footnotes [1] <§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes