City of Minneapolis v. Lundin, 299.

• Decision Date: 30 October 1893
• Docket Number: 299.
• Citation: 58 F. 525
• Parties: CITY OF MINNEAPOLIS v. LUNDIN.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 525

CITY OF MINNEAPOLIS v. LUNDIN.

No. 299.

United States Court of Appeals, Eighth Circuit.

October 30, 1893

David F. Simpson, for plaintiff in error.

F. D Larrabee, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge.

The city of Minneapolis, the plaintiff in error, seeks to reverse the judgment against it recovered in the court below by Erick Lundin, the defendant in error, on the ground that the circuit court should have instructed the jury to return a verdict in its favor.

The charter of the city of Minneapolis provides that the city engineer 'shall have supervision and general charge of all work done for the city, and all work done in any street highway or alley in the city; may direct the manner of performing such work, and the construction of all sidewalks street crossings, bridges or other structures in or upon such streets.' Sp. Laws Minn. 1881, c. 76, § 10. One S.W Sublette was the superintendent of sewer construction for that city under the direction of the city engineer. One John Holdquist was the foreman of a crew of about 50 men engaged in the construction of a sewer on Fourth avenue in that city under the direction of the superintendent, Sublette. This superintendent gave his directions as to this piece of work to the foreman, and the latter hired and discharged the men in this crew, and directed them where to work and what to do. The members of this crew were all engaged, on the day of the accident, in constructing a sewer along a single block on Fourth avenue. Some of the men were opening the trench, others were laying the pipe, and others were filling the trench behind the pipe-layers. In opening the trench it was necessary to break up the rock found there by blasting it so that it could be removed, and sticks of dynamite about eight inches long were used for this purpose. Erick Lundin was a blaster employed in this crew, and it was his duty to prepare and fire the blasts of dynamite which were used to shatter the rock. He had been engaged in performing this duty for several weeks. Andrew Anderson was another blaster, whose duty it was to prepare blasts for Lundin to fire. This was the method of preparing and firing the blast: After five holes about two feet deep had been drilled near each other by machinery, one of these blasters took charge of these holes, cleaned them out, placed a stick of dynamite in each with a cap and wire attached to it, filled the holes with sand and tamped it down, and connected the wires leading from the dynamite with two larger wires which led to an electric battery some distance away, and when all was ready Erick Lundin fired the blast by the use of the battery. It not infrequently happened that some of the sticks of dynamite would not explode, and that the entire blast would be ineffectual. In that case it was the duty of the blaster who had loaded the holes to clean them out, and reload them. On September 18, 1890, while the workmen we have referred to were in the common employment of the city in the various capacities stated, Anderson prepared one blast, and Lundin prepared another, about 75 feet distant from him, and then fired both of them. Anderson's blast proved ineffectual, and he told the foreman, Holdquist, that 'there was four holes went off and the other place didn't go off.' Holdquist turned to Lundin, who stood by, but did not hear Anderson's statement that one of the dynamite sticks had not exploded, and told him to get some dynamite, and go down and reload these holes, because they had done no good. Lundin went away some distance, got five sticks of dynamite, and carried them down where Anderson was at work with a pump cleaning out these holes. He cleaned four holes, and Lundin reloaded them. As he was pumping out the fifth he struck a stone, at a depth of about eight inches, too large to come through the pump, and so fast that he could not pull it up without breaking it. Lundin then took a drill, put it in the hole to break the stone, and held it. He did not know that there was unexploded dynamite below the stone, but Anderson was the man who told the foreman that one of the sticks of dynamite had not exploded. Anderson struck the drill with a hammer, the dynamite exploded, and injured Lundin, the defendant in error. The judgment is based on the theory that the foreman, Holdquist, was the vice principal of the city, and that his direction to Lundin to reload the holes, without telling him that Anderson, who had loaded them, and was about to clean them out, had said that the dynamite in one of them had not exploded, was the careless act that caused the injury. No other negligence is charged against the city.

Prima facie, all persons engaged in a common employment in the service of the same master are fellow servants. At common law, a servant who enters with others upon the common employment in the service of a common master assumes the ordinary risks of that service, including the risk of injury from the negligence of his fellow servants. It is the duty of the master, however, to use ordinary care to furnish reasonably safe machinery and instrumentalities with which the servant may perform his work, and a reasonably safe place in which he may render the service for which he is employed. It is also the duty of the master to use ordinary care to employ fit and careful coworkmen to assist in the common service. These are absolute personal duties of the master, and cannot be so delegated as to relieve him from liability for their negligent discharge.

A vice principal is the representative of the master, and for his acts and negligence the master is responsible. An employe of a corporation may become such a representative in two ways:

First. He may be intrusted with the entire management and supervision of all the business of the corporation, or with the entire management and supervision of a distinct and separate...