Lake Superior Iron Co. v. Erickson

• Citation: 39 Mich. 492
• Parties: Lake Superior Iron Co. v. Catherine Erickson, adm'x
• Decision Date: 29 October 1878
• Court: Supreme Court of Michigan

39 Mich. 492

Lake Superior Iron Co. v. Catherine Erickson, adm'x

Supreme Court of Michigan

October 29, 1878

[Syllabus Material]

Submitted October 18, 1878

Error to Marquette.

Trespass on the case. Defendant brings error.

Judgment affirmed with costs.

W. P Healy and G. V. N. Lothrop for plaintiff in error. Miners are presumed to knowingly incur the ordinary risks incident to mining, Lehigh Valley Co. v. Jones, 86 Penn. St., 432; 18 Alb. L. J. 212; Johnson v. Boston, 118 Mass. 114; an employer is not liable for injuries to an employee caused by the negligence of a fellow servant, and the relationship of fellow servants does not imply that they are engaged in precisely the same work, Wilson v. Merry, 1 H. L. Scotch Cas., 326; Hall v. Johnson, 3 H. & C., 589; Morgan v. Vale of Neath Ry., 35 L. J., Q. B., 23; Howells v. Landore Siemen's Steel Co., L. R. 10 Q. B., 62; Albro v. Canal Co., 6 Cush. 75; Gillshannon v. Stony Brook R. R., 10 Cush. 228; Gilman v. Eastern R. R., 10 Allen 239; Russell v. Hudson R. R., 17 N. Y., 134; an employer is not liable for the negligence of an independent contractor working for him, King v. N. Y. C. & H. R. R. R., 66 N. Y., 181; Pack v. Mayor, 8 N. Y., 222; Blake v. Ferris, 5 N. Y., 48; De Forrest v. Wright, 2 Mich. 368; Moore v. Sanborn, id., 519; Reedie v. London Ry. Co., 4 Exch. 244; Hilliard v. Richardson, 3 Gray 349; Burke v. Norwich R. R., 34 Conn. 474; Corbin v. Am. Mills Co., 27 Conn. 274; Kelly v. Mayor, 11 N. Y., 432; Painter v. Mayor, 46 Penn. St., 213; Callahan v. B. & M. R. R., 23 Ia. 562; Harkins v. Standard Refinery, 122 Mass. 403; Conners v. Hennessy, 112 Mass. 96; Wray v. Evans, 80 Penn. St., 102; Wilson v. Alleghany, 79 Penn. St., 272; an employer is not liable for unexpected accidents that happen notwithstanding the exercise of care by an experienced foreman, Ft. W., J. & S. R. R. v. Gildersleeve, 33 Mich. 134; the negligence of a competent fellow servant is one of the risks assumed by an employee, Davis v. D. & M. R. R., 20 Mich. 105; Mich. Cent. R. R. v. Dolan, 32 Mich. 512; Warner v. Erie R. R., 39 N. Y., 468; Feltham v. England, L. R. 2 Q. B., 33; and if the injured person knew of the danger and worked without any special inducement from the principal employer, he cannot recover, Dynen v. Leach, 40 E. L. & E., 491; Mad River R. R. v. Barber, 5 Ohio St., 541; Assop v. Yates, 2 H. & N., 768; Sullivan v. Ind. Mfg Co., 113 Mass. 396.

George W. Hayden for defendant in error. A company is liable for injuries resulting from the negligence of its agents within the scope of their duties, Chic. & N. W. Ry. v. Bayfield, 37 Mich. 205; Ford v. Fitchburg R. R., 110 Mass. 240; Flike v. Bost. & Alb. R. R., 53 N. Y., 549; Brabbits v. C. & N. W. Ry., 38 Wis. 289; Brothers v. Cartter, 52 Mo. 373; Tol., W. & W. R. R. v. O Connor, 77 Ill. 396; Snow v. Housatonic R. R., 8 Allen 441; 2 South. L. Rev. (N. S.), 123; one who has a duty concurrent with the doing of certain work cannot escape responsibility for its performance by delegating the work to a contractor, Pickard v. Smith, 10 C. B. (N. S.), 470; Whitely v. Pepper, 2 Q. B. Div., 276; Gray v. Pullen, 5 B. & S., 970; the slightest superintendence and submission to it establish the relation of master and servant, Rourke v. White Moss Colliery Co., 2 C. P. D., 205; 12 Amer. L. Rev., 69; where a mining company withholds the right to make arrangements for the protection of workmen, it is responsible for injuries to the employees of those who contract to do its work, Perry v. Marsh, 25 Ala. 659; Marshall v. Stewart, 33 E. L. & E., 1; Gibson v. Pacific R. R., 46 Mo. 163; Chic. & N. W. Ry. v. Sweet, 45 Ill. 197; Noyes v. Smith, 28 Vt. 59; it is bound to perform the duty of protecting the workmen, Farwell v. B. & W. R. R., 4 Metc. 49; and is liable for injury resulting from a defect of which it might have known if it had taken reasonable care, Paterson v. Wallace, 28 E. L. & E., 50; Ryan v. Fowler, 24 N. Y., 414; it must see to it that the premises are always safe, T., P. & W. Ry. v. Conroy, 68 Ill. 560; Laning v. N. Y. Cent. R. R., 49 N. Y., 532; a workman has a right to rest on the assurances of his superior as to their safety, Patterson v. Pittsburg R. R., 76 Penn. St., 389; Indianapolis Ry. v. Flanigan, 77 Ill. 365; T., W. & W. R. R. v. Fredericks, 71 Ill. 294; and if he does not himself know they are dangerous, he is not guilty of contributory negligence, Britton v. G. W. Cotton Co., L. R. 7 Exch. 137.

OPINION

Campbell, C. J.

Mrs. Erickson, the defendant in error, recovered a judgment in the court below, as administratrix of her deceased husband Andrew Erickson, who was killed by a falling rock while engaged in working in the mine of the plaintiff in error, July 9, 1877.

It appears that Erickson had been employed the day before his death as one of a mining gang under the management chiefly of Gustav Stenson, who with his partners had taken a contract for mining and hoisting ore at ninety-five cents per ton for ore and twenty-five cents per ton for rock--this contract having been made July 1, 1877, for a month, and similar contracts having been made in previous months from the beginning of April. Erickson was employed by the day at one dollar and fifty cents per day. The pay arrangement was that the company officers were to pay the men on the certificates of the contractors, deducting this pay from the final settlements.

These contracts were all let by Day and McEncroe as officers of the company, who had general charge for the company of the affairs in the mine.

The pit where these contractors were at work had been carried along the lode so as to leave the upper or hanging wall, which was at an angle of sixty-five degrees, exposed from twenty to twenty-five feet high, and not far from the same distance along the level, with no support or timbering of the hanging wall in that space. Erickson was engaged in sinking a winze or ventilating shaft from this level, and had sunk it about two feet and eight inches when killed. The rock which killed him fell from about half way up the hanging wall, and was just over the winze.

The chief controversy relates to the question whether this rock was previously in a condition which made it so apparently dangerous as to require removal or timbering, and if so, on whom, if any one, was the risk and responsibility. Several collateral questions arose also.

Upon a careful inspection of the record we do not think any questions become material except those which bear on the rights and duties of the various parties in connection with the mine. The other errors assigned do not appear to be founded on sufficient showings in the record. The only one urged by counsel was the rejection of a question put on cross-examination to Stenson asking him whether it was not his business and that of his associates to be on the lookout and watch for dangerous places. We think that when the terms and conditions of his contract were shown, this was rather a deduction than a fact, and he could not properly be allowed or required to answer it. He was not precluded from explaining fully the mutual understanding of the contracting parties as to what the contract was, or as to usage.

It was claimed on the argument, and this claim is based on the assignments of error, that on the whole case there was no ground of recovery. And as reasons for this position several legal propositions are advanced which are chiefly as follows: That there could be no recovery if Erickson was in the employ of Stenson as a day laborer; or if he was not under control of the company or its officers and if Stenson and his associates were to mine and do their work properly; or if he was willing to work after such examination as was shown. And it was claimed in various forms that Erickson undertook all the risks that were established. It will be more convenient to refer to the points raised in the way adopted by counsel than to pursue every subdivision separately.

There was evidence that the rock in question had been considered as dangerous some time before the contract of July, and that the attention of Day and McEncroe had been called to it. There was evidence of various attempts by sounding it with an iron bar to ascertain its safety. There was conflicting evidence as to some of the declarations of the mining officers on this subject. There was evidence on one side that they expressed themselves decidedly on its safety. There was also evidence to go to the jury that they retained the right to determine what large rocks should be removed and what timbering or propping should be done. There was also testimony on the increase of water oozing from the seams, claimed to indicate a gradual loosening. The theory of plaintiff in error was that the rock had been started by blasts from the winze, and that sufficient care had not been taken to examine it thereafter. It fell about two hours after a blast. Other matters of fact will be referred to in their place.

It is proper first to consider the respective positions of the parties. Day and McEncroe stood in the place of the mining company in making these contracts. There was no employment relation between them and Erickson, who was laboring under the contractors. So far as this changed the relative liabilities of the parties it must operate in this case. But while there are cases in which there is no duty or legal privity between principals and the servants of those who contract with them, this lack of privity is not universal and absolute. If, for example, a railway company were to contract with a firm of car-builders to build cars according to given plans in places under the entire control of the builders, there could be no possible corporate responsibility for injuries received by workmen in their...