McLaine v. Head &, Dowst Co.

• Decision Date: 01 April 1902
• Citation: 52 A. 545,71 N.H. 294
• Parties: McLAINE v. HEAD &, DOWST CO.
• Court: New Hampshire Supreme Court

52 A. 545

71 N.H. 294

McLAINE

v. HEAD &, DOWST CO.

Supreme Court of New Hampshire. Hillsboro.

April 1, 1902.

Exceptions from Hillsboro county.

Action on the case by James J. McLaine against the Head & Dowst Company for personal injuries sustained by plaintiff while in defendants' employ. A nonsuit was ordered, subject to exceptions. Exceptions overruled.

The plaintiff's evidence tended to prove that on August 20, 1900, he was employed by the defendants as a laborer, leveling and tamping the earth in a trench from 15 to 20 feet deep. The earth was dumped into the trench by cart loads, and the practice was for the boss of the gang to warn men in the trench when a load was to be dumped. This boss or foreman was in charge of the whole gang of teamsters and shovelers who were employed in filling the trench, and the plaintiff had known him as a foreman all summer. When the plaintiff was set at work, the boss said: "You go down to work there. I will take care of you fellows." The boss did thereafter give the warning, both before and after the accident. At the time of the accident no warning was given, and in consequence of the omission the plaintiff failed to notice the falling load of earth and stones, and was injured thereby. The plaintiff could not see the load from the trench where he was working, and relied upon the warning. A nonsuit was ordered, subject to exception.

Pattee & George, for plaintiff.

David A. Taggart and George H. Bingham, for defendants.

PARSONS, J. "A servant who is injured by the negligence of a fellow servant in the course of their common employment, without any fault on the part of the master, can maintain no action against the master for such injury." Fifield v. Railroad, 42 N. H. 225, 236; Hanley v. Railway Co., 62 N. H. 274; Lebarge v. Mills Co., 68 N. H. 373, 44 Atl. 533; Fournier v. Manufacturing Co., 70 N. H. 629, 44 Atl. 104. The test whether the individual employes concerned were fellow servants is not found in the fact that they were engaged in a common employment under the same general control, and paid by the same principal, but is whether the negligent servant in the act or omission complained of represented the master in the performance of any duty owed by the master to the servant injured. The responsibility of the master is determined by the nature of the act in question, and not by a difference in rank or grade of service between particular servants. Jaques v. Manufacturing Co., 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824; Small v. Manufacturing Co. 94 Me. 551, 48 Atl. 177; Bailey, Mast. & S. 284, 286.

The plaintiff, the foreman, and the teamsters were engaged in a common employment, —filling the trench. The plaintiff, in the bottom of the ditch, was injured by the negligent dumping of the earth and stones upon him. If he had been warned, he could have protected himself and escaped injury. The liability of the defendants for the failure of the foreman to give the warning, assuming that such failure was due to negligence, is determined by the answer to the question whether the duty of giving the omitted warning was a duty personal to the master. The rank or grade of the employs to whom this duty was in this case intrusted is immaterial, because the foundation of the claim is the nonperformance of an alleged nondelegable duty. The only breach of the master's duty suggested is the failure to provide the plaintiff with a safe place in which to work, and to keep it safe. It is urged that, as the plaintiff could not safely work in the bottom of the ditch without warning, the master's duty as to the place was not performed unless the warning was given. It is not suggested that the place itself in which the plaintiff was at work was unsafe. There was no secret danger unknown to the plaintiff; at least, the injury is not attributed to such a cause. The plaintiffs injury was due to a danger arising in the progress of the work. So long as, in the work of filling the trench, no earth was thrown into it in the plaintiff's vicinity, the place where he was at work was safe. His injury resulted from the prosecution of the common work by the defendants' other employes. The place and the danger varied as the work progressed. The place was not a permanent location prepared by the master for the work, but was made and changed by the work the servants were doing. Where the supplying of a work place is part of, or necessarily results from, the work being done, and is to be done by the servants themselves, the master is not liable for a co-servant's negligence in the progress, rendering the place unsafe. Armour v. Hahn, 111 U. S. 313, 318, 4 Sup. Ct. 433, 28 L. Ed. 440; Zeigler v. Day, 123 Mass. 152, 154. An illustration is to be found in the cases where a part of the work of the servants is to build scaffoldings or stagings upon which to work. In such cases it is no part of the personal duty of the master to see to it that such places are safe. His duty ends with the supply of suitable materials. Manning v. Mills, 70 N. H. 582, 49 Atl. 91. Having provided a safe place, the master is not liable upon the ground of that obligation if the place is made unsafe by the negligence of servants employed, not to provide the place, but to do the work in the place. Nash v. Steel Co., 62 N. H. 406; Bodwell v. Manufacturing Co., 70 N. H. 390, 47 Atl. 613; Hussey v. Coger, 112 N. Y. 614, 618, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905; Daves v. Pacific Co., 98 Cal. 19, 32 Pac. 708, 35 Am. St. Rep. 133; Hermann v. Mill Co. (D. C.) 71 Fed. 853.

The obligations of the master as to machinery and appliances and in respect to the place are the same in substance, and may both, as well as his duty in the employment of servants, be comprehended by the use of the term "instrumentalities." The master's duty is to exercise care to provide reasonably safe and sufficient instrumentalities for the work. The execution of the work is the duty of the servant. "The master has not contracted or undertaken to execute in person the work connected with his business." Wilson v. Merry, L. R. 1 H. L. Sc. 326, 332. When the repair of the machinery or appliances furnished by the master requires skill and practical knowledge, the obligation is that of the master; but when the inspection and repair is incidental to the use of the appliance (i. e., is a part of the work of its use) such inspection and repair is the duty of the servant. Jaques v. Manufacturing Co., 66 N. H. 482, 484, 22 Atl. 552, 13 L. R. A. 824; Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854. Upon the same principle, when the danger arises, not from the place itself, but from the use of it for the work, and no special skill or experience beyond that Involved in doing the work is required to maintain the safety of the place, the maintenance of such safety is the duty of the servant, because it is a part of the work. The plaintiff cannot recover on the ground of the breach of the master's obligation as to the place, because there is no evidence of negligence of the master in that respect.

The contention that the master's duty as to the place is in question here involves a confusion of ideas. It is not the duty as to the place itself that is in question, but the question is as to the extent of the duty of the master to guard the servant from dangers arising in the course of the work from the work itself. The master is bound to take reasonable precautions to insure the servant's safety (Foss v. Baker, 62 N. H. 247, 251), or as the rule is generally expressed, to provide such reasonable rules and regulations as will enable the servants to do the work in safety (Railroad Co. v. Peterson, 162 U. S. 346, 353, 16 Sup. Ct. 843, 40 L. Ed. 994). The measure of the master's duty in this regard is ordinary care. The law is not varied by the nature or the extent of the enterprise. "The responsibilities of the defendants in this case, and of the individual who hires two laborers in harvest, or two carpenters to erect a staging and shingle his house, are to be determined by the same legal tests." Fifield v. Railroad, 42 N. H. 225, 238. The individual who employs two laborers to dig a ditch is not required to stand over them to give warning, or to prevent one from throwing earth upon another. Neither is he required to employ a watchman to give warning to the one when the other is about to throw a shovelful of earth into or out of the trench. There is no occasion for such a precaution, not because the rule of law is different, but because ordinary care does not demand it in such a case. As the number of servants is enlarged and the work extended, the probability of injury of one by the other is increased. When the nature of the work reasonably demands rules or precautions, the master's duty arises. The master's duty is performed by the adoption of a reasonably suitable method. If ordinary care requires that a warning of dangers arising from the work should from time to time be given to his servants as the work progresses, it is the master's duty to provide for such warning. Having made provision for the warning by intrusting the duty to a competent person, he is not liable for the negligence of the person intrusted with the duty. Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R A. 559, 8 Am. St. Rep. 787; Steamship Co. v. Cheeney, 86 Ga. 278, 12 S. E. 351; Id., 92 Ga. 726, 19 S. E. 33, 44 Am. St Rep. 113; Luebke v. Railway Co., 59 Wis. 127, 17 N. W. 870, 48 Am. Rep. 483; Id., 63 Wis. 91, 23 N. W. 136, 53 Am. Rep. 266; Portance v. Coal Co., 101 Wis. 574, 579, 77 N. W. 875, 70 Am. St. Rep. 932; Donovan v. Ferris, 128 Cal. 48, 60 Pac. 519, 79 Am. St. Rep. 25; Hartvig v. Lumber Co., 19 Or. 522, 25 Pac. 358; The Harold (D. C.) 21 Fed. 428; Hermann v. Mill Co. (D. C.) 71 Fed. 853; The Pioneer (D. C.) 78 Fed. 606; Martin v. Railroad Co., 166 U. S. 399, 403, 17 Sup. Ct. 603, 41 L. Ed. 1051. For other cases to...