Telander v. Sunlin

Thomas, J., (after stating the facts as above.) At the close of the evidence defendants’ counsel requested the court to direct a verdict for the defendants. The court overruled the motion, and the defendants took-an exception. Upon the argument of the motion for direction at the trial, a number of points were made by counsel for the defendants. Without abandoning those made at the trial, only two propositions were argued and presented on this motion: First, that Peterson, the boilermaker in charge of the work, had no express or implied authority to furnish or provide rope and tackle or other appliance for raising the intake when he found that the rope and tackle which he had used had been taken away, and that in borrowing, providing, and rigging up a defective rope and tackle, without instructions from the defendants, and without informing them that the other had been taken away, he was acting as a fellow-servant of the plaintiff; second, that the plaintiff was guilty of contributory negligence in using his hands in removing the stones and dirt, instead of a stick or some other implement. The second proposition clearly cannot be maintained. The evidence does not present such a clear case of contributory negligence as would warrant the court in taking the case from the jury. The court could not say, in view of the facts and circumstances of the case, that the plaintiff’s injury substantially resulted from a danger in using his hands to remove the stones and dirt that was so obvious and threatening that a reasonably prudent man, under similar circumstances, would not have so acted. Different minds might honestly draw different conclusions from the facts. Railroad v. Stout, 17 Wall. 657. The plaintiff had worked under the control of Peterson for several days. Nothing had occurred to indicate that he was not a careful and competent man. He had been with him and worked with him before he commenced to work upon this intake. The intake had been raised to remove the uprights ■and lowered safely under Peterson’s directions. It was dark in the place where the plaintiff was at work, and he was directed to act and remove the stones when the intake should be raised; and in obedience to orders he immediately entered upon the discharge of his duties without any appehension of danger. I think it was proper to submit this question to the jury. Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. Rep. 16. The first proposition presents a more serious question. Upon well-settled principles of law the master is bound to use all reasonable care •and precaution for the safety of those in his service by providing them — 569 — with machinery and appliances reasonably safe for their work, and keeping them in a reasonably safe and serviceable condition, and by providing them with a reasonably safe place to work, and by the observance of such care as will not expose the servant to unusual dangers or perils, which may be guarded against by proper diligence. These are duties which the master, as such, is bound to perform, and cannot be delegated so as to exonerate the master for liability to the servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior officer, agent, or servant, or of a subordinate or inferior agent or servant, to whom the doing of the act or the performance of the duty lias been committed. In cither case, in respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not the mere co-servant with the one who sustains the injury. The act or omission is the act -or omission of the master, irrespective of the grade of the servant whose negligence caused the injury. If the employe himself has been wanting in such reasonable care or prudence as would have prevented the accident, lu- is guilty of contributory negligence, and the employer is absolved from responsibility, although it was occasioned by the delect of the machinery through the negligence of the employer. Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044; McKinney, Fel. Serv. p. 87, and cases cited. Applying these principles to the facts of this case, and all the legitimate inferences to ho drawn therefrom, did the court err in refusing to direct a verdict for the defendants? It is the province of the court to determine whether an inference can he drawn, and of the jury to say whether it ought to be drawn. Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322. The contention of the learned counsel for the defendants is that the defendants did supply rope and tackle amply sufficient for the work, and that no inference of authority to Peterson to supply other rope and tackle, or other apparatus, can be drawn from the facts. If, upon all the facts and circumstances of the case, an inference of authority to Peterson in the premises cannot he fairly and reasonably drawn, the exception is well taken, and this motion must be granted. Peterson was a boiler-maker of experience. He seems to have had the confidence of the defendants as a man competen!, and possessed of the requisite skill, for the work intrusted to him, and they placed him in the entire charge of the work of putting the rim onto the intake, and letting it down and riveting it to the wheel case. Plaintiff and the other common laborers were placed under his control. There were no express limitations or qualifications in their instructions to him as to the work to he accomplished or the means to be used. Ilis express authority clearly implied -the authority to use or adopt such means as might, in the exercise of ordinary care, seem to be requisite to the full performance of the work. Were the physical facts developed at the trial sufficient to exclude any implied authority to Peterson to furnish or supply the appliances used, or any appliances, for raising or moving the intake? The defendants knew, or were bound to know, that the intake was too heavy to be raised and lowered by hand, and without the assistance of — 570 — appliances suitable for the purpose; that in carrying out the instructions Peterson might, and probably would, be engaged in the work' several days; and that he would, of reasonably might, require the frequent use of appliances by which to move or raise and lower the intake safely. What provisions did the defendants make for supplying the requisite appliances? The rope and tackle that were lying in the tail-race were not iurnished by them for that purpose. It was lying there; but it does not appear for what purpose it was left there, nor how it came to be there. It does not appear that it was contemplated that it was to be used in or about that work at all. Peterson examined it when he found that the other rope and tackle had been removed, and found that it was too short and too small; and there is no evidence tending to show that such was not a fact. It does not appear that the defendants owned any other rope and tackle. They owned the chain which Peterson found near the work and'used; but that was insufficient except, in connection with a rope and tackle. Does the fact that there was a rope and tackle suspended over the intake at the time Peterson took the uprights out, together with all the facts and circumstances connected with the obtaining and placing of that tackle in position, exclude any inference of authority to Peterson to supply other rope and tackle in any event? This rope and tackle was not owned or under the control of the defendants, and was not placed in position by them. It was borrowed from the Twin City Iron-Works, and placed in position by one Spillman, who was in charge of the Humbolt mill, for the use of that mill; and when Spillman was through with it he returned it to the owners. While the rope and tackle was suspended there the defendants used it in raising the wheel case, and Peterson used it in letting the intake down at the time he took the uprights out, without objection. They made no arrangements for the continued use of it, though they knew that the work was not completed. Defendants were about there almost daily, and although it is reasonable to suppose that they knew that the Twin City rope and tackle had been taken away at least two days before the accident, they gave no instructions to Peterson about supplying other rope and tackle or appliances, or made any provisions whatever for -supplying rope and tackle to be used in the completion of the work. It is claimed that the defendants, or one of them, had assisted in procuring the Twin City tackle for their own use. But it is evident that the jury found from the evidence, as they legitimately might, that defendants did not borrow it, and had no control over it, and that they did not understand that they had any right to use it at the time it was borrowed by Spillman, or at the time they gave Peterson his instructions. While it was hanging there they used it, it is true, without, objection. Then Peterson used it, but they knew that the}*- had no control of it, and had made no arrangements for using it; that it was liable to be taken away at any time; and yet did nothing respecting rope and tackle or appliance. Sunlin, who assisted in borrowing the rope and tackle for Spillman, was not the member of the firm who did or looked after the work. He did the figuring, took the jobs, and Cour, his partner,' had charge of the work; and yet Cour does not seem to have given any — 571 — ■attention to appliances for lifting or moving the intake. The jury probably inferred that the assistance of 8unlin was simply for the purpose of finding the rope and tackle for Spillman, and that he did not borrow or assist in obtaining it for the use of himself or his firm in that work. The evideneo discloses that there were two ropes and tackle, or “blocks,” as they arc sometimes called, used by Spillman in letting the wheel down. One was the Twin City tackle and the other one was that used by Peterson at the time of the accident, which belonged at the Hum bolt mill. Spillman attempted to raise the wheel a little with his own rope and tackle, and it broke; but it was there at the mill when Peterson went to the work, and so was the Twin City tackle. They were both there, it would seem from the evidence, when Peterson received his instructions, though neither was in position, and neither of them was under the control of the defendants. Taking all the facts and circumstances into consideration, 1 am of the opinion that it might reasonably be inferred that the defendants intended to invest Peterson with full power and authority to do all that in the exorcise of ordinary care might be requisite and necessary to complete the work, and to select, use, or provide sue!) means as might be at hand or reasonably obtainable for that purpose. No fault seems to have been found with Peterson by the defendants because he used the Humbolt mill rope and tackle instead of applying to them for instructions, or informing them that the Twin City rope and tackle had been taken away. I do not think that the court would bo justified in holding that no inference of authority to supply tackle or some appliance could be drawn from the instructions to Peterson, in view of all of the evidence and circumstances of this case. The court charged the jury as follows in respect to this question: “In this ease it was the defendants' duty towards the plaintiff to use reasonable and ordinary care and diligence to see that the tackle used in hoisting the intake was safe and sufficient for that purpose. It was the personal duty of tiie defendants to furnish a. reasonably safe and sufficient tackle. If they failed to furnish such reasonably safe and sufficient tackle, they were guilty of negligence, and if, by reason of such failure on their part, plaintiff was injured, without fault on his part, he is entitled to recover in this action. if you find from the evidence that the defendants left the work in question in charge and control of the bpiler-niaker Peterson, and left it to him to find and provide the necessary tackle, and lie, in providing the tackle to hoist the intake, was guilty of negligence, either in having too short a chain, or in using a rope which was unsafe, unsound, worn out, and insufficient for lifting tiie weight, such negligence on his part would be the negligence of the defendants, for the consequences of which they would be responsible to this plaintiff. Ln that connection you will see that 1 have left you to find whether or not the defendants authorized the boiler-maker .Peterson to furnish and provide this tackle and rope and apparatus. That is left to you. If they did not authorize him to do so, within the rules which L shall give you; if he had no authority, either direct, or which you may infer from the testimony, but he found this tackle and used it himself as a voluntary act on Ins part, without authority from the defendants, — then the defendants would not be liable for his negligence in furnishing it. If would bo the negligence of a co-servant, and the plaintiff could not recover in this action. So you must determine the question from the evidence, under the rules which I will give you — 572 — further along, whether or not he was authorized to find and provide the necessary tackle with which to raise this intake. This is a question of fact that is submitted to you.” • The case of Wilson v. Quarry Co., (Iowa,) 42 N. W. Rep. 360, cited and relied upon by defendant’s counsel on this motion, is distinguishable from the case at bar. In that case there were no facts from which any inference could be drawn that Horner, who rigged up the defective appliance, had any authority whatever in respect to the machinery. The defendants undertook the construction of a double tramway down the incline, for the purpose of running cars thereon to carry off the strippings and other refuse of the quarry down in the direction of the Des Moines river, where it was to be dumped from the cars. Before the work of constructing the tramway was completed, one Stuart, who ivas the superintendent of the quarry, went away temporarily. During his absence the force of men at work in the quarry rigged up a tackle and snatch-block fastened to a tree to let down loaded cars. One Horner, an employe, who was below, called up to plaintiff to go on top of the hill and get a scraper. The plaintiff brought the scraper to the upper end of the tramway, put it on one end of a car, and he and another party got onto the car and commenced to make the descent. When the weight of the car came upon the tackle rigged and fastened to the tree, the pin in the snatch-block broke, the cars descended the Incline at a great speed, which resulted in their jumping from the track and greatly injuring plaintiff. The action was founded upon the alleged negligence of defendants in using defective and dangerous machinery and appliances, by reason of which the plaintiff was injured. The defendants, in their answer, denied that any defective machinery or appliances were in use by its order, etc. It appears that Stuart was the superintendent, and in charge of the quarries, and that one Washer was the foreman under Stuart, and that he was also absent at the time, but that Horner ivas an employe, who worked where he ivas directed. He sometimes gave directions to other employes in regard to work in which they were engaged, and he had charge of the tools, and kept the time of the men. There ivas no evidence that Horner had been invested with authority respecting the work on hand, or that he had any authority to cany on the work, in the absence of the superintendent and foreman. The court, speaking by Rothrock, J., says: “It is not claimed that the defective snatch-block was put in position for use by the direction of the superintendent, nor by Washer. It is claimed, however, that, as both were absent, Horner acted in the place of the superintendent, or, in other words, acted as and for the defendant, and that the snatch-block was used by his direction, and the jury all through the instructions given them by the court were charged upon the theory that there was evidence from which such a finding could be-made. We do not think these instructions were proper under the evidence, * * * because there is no evidence that-Horner had authority to direct what machinery or appliances should be used. He had neither the authority of selecting nor the power to put machinery in place, and we may say, further, that there is no sufficient evidence that Horner had any agency whatever, in fact, in putting the defective snatch-block in use.” — 573 — The facts of that case preclude the possibility of an inference being-drawn that the defendants, either personally or through their superintendent or foreman, did, or intended to, invest Horner with authority to periorm any of their personal duties respecting machinery or appliances. The case of Lund v. Lumber Co., 41 Fed. Rep. 202, is cited by both parties on this motion. In that case, Campbell, the superintendent, was the alter ego of the corporation, and ordered Lynch to haul a barge out of the water; and no special instructions were given him as to the machinery for hauling it out, or as to the appliances to be used. Defendants had in their saw-mill near the barge chains and ropes, old and new, and blocks and tackle, and Lynch selected an unsafe rope, and on account of its defective condition plaintiff was injured. It was held that Lynch had authority to select the rope, and that he was negligent in so doing, and that the negligence consisted in performing the personal duty of the master. In the case at bar Peterson was given general instructions to let the intake down and rivet it onto the wheel case. This direction carried with it, by necessary implication, the authority to select and use appliances appropriate for that work, unless the fact that the Twin City Iron-Works tackle being there at the work, as disclosed by the evidence, was a lull compliance on the part of the defendants with their personal duty in furnishing suitable machinery for that work. For reasons before stated, 1 do not think that fact, in view of the evidence in this case, was such a compliance with the defendants’ personal duty as to relieve them of responsibility. The case of Fetch v. Allen, 98 Mass. 572, cited by the defendant, is not applicable. A brief statement of the case, and a single extract from the opinion, is sufficient to distinguish this case. The defendants were transferring their chair factory from the basement to the attic. Plaintiff and one Hussey, common laborers employed by defendants, were directed by the foreman to move the stock. They carried up several loads of chair-stuff in baskets, when Hussey proposed that in order to relieve them from all fatigue in going up and down stairs they should use the elevator, which ran from the basement to the attic. It was an unsafe elevator, and the rope by which it w-as raised and lowered was worn and defective. The rope broke while plaintiff and his co-laborer were so using it, and the plaintiff was injured. It was not used by order of the foreman or defendants, and they did not know that it was being used. It was not provided for their use, and it was not necessary to use it. The plaintiff and the other co-laborer used it simply for their own convenience, and without the knowledge or authority of the defendants or their representative. On page 574 of the opinion, Hoar, J., says: “The case, then, is simply this, that two servants of a common master are employed upon the same work; that one of them, without authority from his master, directs the other to use a machine for a dangerous and improper purpose, for \Vhich it was not intended and provided; that he complies, and receives an injury. There is no principle of law which will make the employer answerable for the damages in such a case.” — 574 — The jury have found, under the instruction of the court, that Peterson was acting under the authority of the defendants in selecting, providing, and placing the defective rope and tackle; that he negligently performed the duty; and that the plaintiff, by reason thereof, was injured. Peterson stood in the place of and represented the defendants in respect to these personal duties that rested upon them, and his acts and omissions in respect thereto were the acts and omissions of the defendants, and they must abide the result. Anderson v. Bennett, (Or.) 19 Pac. Rep. 765. The motion for a new trial is denied. Nelson, J., concurs.