Anderson v. Bennett

• Decision Date: 05 November 1888
• Citation: 16 Or. 515,19 P. 765
• Parties: ANDERSON v. BENNETT.
• Court: Oregon Supreme Court

19 P. 765

16 Or. 515

ANDERSON v. BENNETT.

Supreme Court of Oregon

November 5, 1888

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action for damages by August Anderson against Nelson Bennett. From a judgment for plaintiff defendant appeals.

(Syllabus by the Court.)

The general doctrine that a master is not liable for injuries caused by the negligence of a fellow-servant in the same common employment is now regarded as settled law. The reason assigned for this exemption is that, by his contract of employment, the servant assumes the risks incident to it, and that both he and his employer had them in contemplation in fixing the compensation. ^[1]

The general rule, as declared in Farwell v. Railroad Co., 4 Metc. 49, that all servants employed by the same master and working under the same control and in a common employment, are fellow-servants, has been the subject of much dispute as to its proper limitations, and in many of the states has been relaxed and modified in consequence of the hardships and injustice growing out of its too general application.

So that the later current of judicial decision, as well as legislative action, indicates a marked departure from that rule, and a disposition to so limit and restrict it as shall make the master answerable for his just share of responsibility to his servant for injuries sustained in his employment. ^[2]

A marked change from the old rule is taking place in the law as to servants clothed with partial authority only, such as a foreman or superior servants, and the principle upon which such change is based is that when a master delegates any duty which he owes to his servants, he is liable for its proper performance. ^[3]

Guided by this principle, several tests have been applied in determining the line of demarcation between the representative of the master and the mere servant, and among them is the ruling that the master is chargeable for any act of negligence in so far as the servant is charged with the performance of the master's duty to his servants, such as the selection of competent servants, the furnishing of suitable tools and instrumentalities, the providing of a reasonably safe place in which to work, and the observance of such care as will not expose the servant to hazards and perils which may be guarded against by proper diligence etc.; and to the extent of the discharge of these duties which the master owes to his servant by the middle man or vice principal, the latter stands in the place of the master. ^[1]

It is therefore a duty which the master owes to every servant to provide a reasonably safe place at which to work, having reference to the nature of the undertaking, or the exigency of the situation, and although he is not an insurer he is bound on the same principle by the law to exercise due and proper care in this regard as he is in hiring competent servants, or in supplying reasonably safe machinery or other appliances for the use of his servants. ^[2]

As the defendant was not personally present and did not promulgate or establish any suitable or needful rules and regulations for the safe and proper conduct of the work, and as the direct management or execution of the work during his turn was placed in charge of C., there necessarily devolved upon him the duties in this particular which the defendant owed to his servants; and as a consequence it became the duty of C to provide for the safety of the servants under his control and subject to his commands, by the exercise of such care in the management and conduct of the undertaking intrusted to him as would render reasonably safe the place at which the employees must apply the machinery and do their work.

C. was this not only the foreman to direct the work of the hands under him, but the person above all others to provide that they should have a reasonably safe place at which to work consistent with the exigencies of the situation; and in this view it is of no importance by what name C. be called, whether a middle-man, superintendent, or foreman.

When therefore C. ordered the plaintiff to set up the machinery, and drill holes at the place where the injury occurred, without having taken any care, or at least adopted some precautionary measures to discover whether there were holes charged with giant powder which had failed to explode, and to guard against the danger of the drills penetrating them, etc., he committed a negligent or wrongful act, and exposed the plaintiff to a serious danger not contemplated by his contract of service.

H.Y. Thompson and Geo. H. Williams, for appellant.

Geo. W. Yocum and F. Clarno, for appellee.

LORD J.

This is an action to recover damages for personal injuries caused by the alleged negligence of the defendant, his servants and agents. The complaint, in effect, is that the defendant was engaged in constructing the tunnel on the line of the Northern Pacific Railroad Company, and that the plaintiff was engaged in his service for hire as a common laborer during the time therein mentioned; that Thomas Cosgrove was the foreman, manager and superintendent of said work, and that plaintiff was directly under his control and authority, and that by reason of his negligence he was greatly injured and his eye-sight destroyed. The substance of the evidence is that the defendant was a contractor for the construction of a tunnel for the Northern Pacific Railroad Company, and that S.J. Bennett was his chief superintendent and M.B. Turner was his assistant at the west end of the tunnel, where the plaintiff was engaged at work, and that Cosgrove was the foreman of the gang or shift of men to which the plaintiff belonged; that in the prosecution of this work there were two shifts or gangs of men, working alternately by day and night; that in performing this work they would clear up so much of the broken rock and debris as would make a clean place for them to operate their drills, which bored holes, horizontally and perpendicularly, in the benches of the tunnel, then charge them with giant powder and explode it, when that gang or shift would retire to be succeeded by the other, who would go through, in their turn, a like routine of labor; that the materials and appliances for doing the work were furnished by Bennett, the superintendent; that Cosgrove was a man of skill and experience in the business of tunneling, and that in the management of the work of blasting, during his turn, he acted upon his own judgment, directed and controlled the use of the explosives as well as the use and location of the machinery and drills, commanded the movements of the men under his control, and ordered them when and where and what to do, and how to do it; that he had hired and discharged men under his control, although his authority to do so was denied and contradicted, but not the fact that he had done so; that on the day of the accident the plaintiff was ordered by Cosgrove to drill a perpendicular hole in a certain rock in the tunnel, and that Cosgrove placed the drill on the spot, and ordered and directed the plaintiff to drill the hole, which he was engaged in doing when the explosion occurred that caused the injury; that the injury was occasioned by his boring into a missed or unexploded hole which was not discoverable by reason of the neglect of the foreman to remove the debris and broken rock. In respect to this point one witness testified "that until a good deal of work in cleaning up had been done, that it was impossible for any one to tell whether there was any missed or unexploded holes; that they did not work long in cleaning up before they started drilling; that the missed hole which exploded and done the injury to the plaintiff was covered up with loose rock, and no one could see whether there were any missed holes or not." And again: "There was no chance to examine for missed holes until the rock was cleaned off. Nobody could tell there was any missed holes, because there was so much rock and debris." And when the inquiry was made why it was not cleared off so as to find out whether there were any missed or unexploded holes, the witness answered: "Because we did not have time. The foreman would not give us time; he was pushing us ahead all the time,--hurrying us up." This evidence, in substance, is fully corroborated by others. It is further testified to that "the first thing we did when we got in was to clean off the benches, and get ready for drilling;" that before putting the drills to boring it was necessary to have a clean place, and as soon as this was done the drilling began. As to the condition of the tunnel, Cosgrove testifies when he went in that "he looked the tunnel over to see if it was safe; supposed it was safe; that the lower part you could not tell anything about it, as it was all covered with rock." He further testified that there was a rule for the men to look after missed holes, and to report them to him; and the evidence shows that the plaintiff complied with this regulation. In this particular it may be well to note what he testifies: "When I was drilling the first hole, I discovered an unexploded hole, and called the foreman's attention to it. This hole I discovered was about ten or twelve inches from the hole I was drilling, maybe a little one side. I asked the foreman if he thought there was any danger for me to work in that place. He told me there was no danger; 'go ahead and work.' When the hole was finished I called the foreman's attention again, and asked him in what place he wanted me to drill the next hole, and the foreman took hold of the drill with his hand and set the hole in a perpendicular place and ordered me to drill. This was from four to five feet from the hole I had just drilled. I was drilling a perpendicular hole. When...