Anderson v. Pittsburg Coal Co.

• Decision Date: 23 July 1909
• Parties: ANDERSON v. PITTSBURG COAL CO. et al.
• Court: Minnesota Supreme Court

108 Minn. 455

122 N.W. 794

ANDERSON

v.PITTSBURG COAL CO. et al.

Supreme Court of Minnesota.

July 23, 1909.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by Gust Anderson against the Pittsburg Coal Company and others. Verdict for plaintiff. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, the Coal Company appeals. Affirmed.

Syllabus by the Court

Plaintiff, engaged as a coal heaver in unloading the hold of defendant's boat, was knocked down by a coal bucket operated by a crane, which had acquired ‘too much swing.’ The hatch tender signaled the hoister to stop it and drop it down. He did not warn plaintiff, as his duty and custom required. The hoister dropped the bucket. It struck plaintiff, and produced the injuries for which recovery is sought. It is held:

(1) Whether the proximate cause of the injury was the dropping of the clam shell upon plaintiff or the previous swinging of the bucket was a question of fact for the jury.

(2) The failure of the hatch tender to give plaintiff the customary warning before the bucket was lowered was the negligence of a vice principal, and not of a fellow servant.

(a) The value of a particular decision as a precedent is to be determined by reference, not only to identity of its facts with the facts in issue, but also to identity of the principle upon which that decision is based with the pertinent rules established in the jurisdiction in which the controversy is pending. Decisions of other courts that under given circumstances a servant is a fellow servant of another are not persuasive in this court, unless the criterion by which the relationhip is determined is the same as in this jurisdiction, namely, that a fellow servant is one to whom the master has not intrusted the performance of some absolute nonassignable duty. Portance v. L. H. Co., 101 Wis. 574, 77 N. W. 875,70 Am. St. Rep. 932;Ocean S. S. Co. v. Cheeney, 86 Ga. 278, 12 S. E. 351;Id., 92 Ga. 726, 19 S. E. 33,44 Am. St. Rep. 113;Hermann v. Mill Co., 71 Fed. 853, distinguished.

(b) Subject to restrictions arising under particular circumstances, the general rule is ‘that the delegation to an employé of the duty of taking such measures as are within the power of the master to protect employés against danger while at work cannot relieve the master from liability if the employé to whom such duty is imputed does not exercise reasonable care in its discharge.’

(c) While duty of the master to warn the servant of impending danger, as distinguished from the duty to instruct a youthful or inexperienced servant, may not under all circumstances be absolute and nonassignable, the general rule is that, when an employé is at work in a place safe in itself, but which by virtue of some independent work done for the master's purposes becomes dangerous unless prior warning of impending danger be given, and when the master has required such warning to be given, or has customarily assumed to give such warning by an employé, the person charged with that duty is a vice principal.

(3) A verdict of $8,000 for plaintiff's injuries, whereby his leg was shortened about three inches, a curvature of the spine was produced, and a permanent inability to do hard work resulted, in addition to other injuries, is held not to have been so excessive as to justify a new trial. E. C. Kennedy, for appellant.

John Jenswold, Jr., for respondent.

JAGGARD, J.

Plaintiff and respondent, a coal heaver, was engaged in unloading defendant's boat, loaded with coal. Clam shells. or buckets, four feet wide and seven feet long when closed, were lowered into and raised out of hatchways by means of wire cables running over sheaves at the end of booms which were projected over the vessel. The boat being unloaded was provided with an upper and a middle deck. At the time of the accident here involved the coal was being taken from the hold. The machinery was operated by a man known as a ‘hoister,’ who received, from a man on deck known as a ‘hatch tender,’ signals by which his actions were governed in controlling the movements of the clam shell. Immediately before the accident the clam shell had been lowered and was swung by plaintiff to a place in the hold of the boat. The clam shell was closed under the coal. Plaintiff was steadying it. The clam shell caught a part of the floor of the boat. Additional power was put on the hoisting apparatus. When the bucket was raised it carried along a part of a board. It swung against plaintiff, and knocked him down on the coal in the hold, but did not injure him. The bucket was ‘swinging too far away. It had acquired too much swing, so the hatch tender signaled the hoister to stop it, and shouted, ‘Down the bucket!’ The hoister dropped it on plaintiff's right hip while he was lying on the coal and before he could get away. The hatch tender did not give the signal or warning required by his prescribed duty and the custom then current. The bucket was raised, when some one ‘hollered,’ and was swung over to the other side. It then swung back to the place where plaintiff was, and hit him again on his left leg above the knee. The clam shell lay on the top of him a minute or so, and then was moved to the center of the hatch and was lowered down. According to the plaintiff's testimony the hatch tender could have seen plaintiff while he was lying on the coal after having been struck by the clam. The hatch tender testified that he looked at the hoister when he gave the signal to lower the bucket. He did not look down where the plaintiff was. He had, however, seen the plaintiff take hold of the clam when it descended through the hatchway and push it to one side. The testimony as to whether he saw plaintiff when the clam shell was swinging is not clear. The jury returned a verdict of $8,000. This appeal was taken from the order of the trial court denying defendant's alternative motion.

1. Whether the proximate cause of the injury was the dropping of the clam shell upon plaintiff or the previous swinging of the bucket was a question of pure fact. The jury was entitled to believe the plaintiff's version. Its finding for him should not be disturbed because of this question.

2. The principal contention of defendant is that under the rules laid down by the authorities it had performed its absolute duty to plaintiff, that the failure of the hatchman to give warning was a mere detail of the work, and that therefore he and plaintiff were fellow servants.

(1) The rules of law as to how far the master may delegate his duty to his servant appear in a measure to have been rather rendered uncertain than to have been definitely determined by the mass of decision on this subject. The opinion has been frequently expressed as in Brabbitts v. Railway Co., 38 Wis. 289-299 (1875): ‘It would be monstrous to allow [the master] to relieve himself of all liability for a breach of duty [to the servant] by simply charging one of [his] inferior officers or servants with the performance.’ This principle has been reiterated times without number by the Wisconsin court and by almost every court in the country. An especially clear statement. of the master's duty to protect in fact-to actually do what circumstances require, and not merely to employ another to do for him-will be found in Toledo Co. v. Bosch, 101 Fed. 530, 41 C. C. A. 482. And see 2 Labatt, §§ 552, 553, 556. To universally apply this principle to the master's duty concerning a safe place would necessarily impose liability on the master in the great majority of cases, and, it has been thought, would practically eliminate the doctrine of fellow servant. Courts have properly refused to go to this extent. In consequence such application has been restricted, usually with reason, but sometimes to an unjustifiable extreme. Thus it has even been held that ‘the positive, personal, and nondelegatable duty of a master to provide a reasonably safe place in which, and reasonably safe supplies with which, to work out a reasonably safe method of doing the work, is a duty of construction and provision, and not of operation.’ Kinnear Co. v. Carlisle, 152 Fed. 933, 82 C. C. A. 81. And see Penn. Co. v. Fishack, 123 Fed. 465, 59 C. C. A. 269.

The authorities as to when and how far the master may by selection of proper servants and by adequate directions to them to warn, as distinguished from instructing other servants of danger, secure exoneration from harm inflicted on such other servants by such other failure in fact to warn, are certainly not in harmony. 26 Cyc. 1337. In Western Elec. Co. v. Hanselmann, 136 Fed. 564-566, 69 C. C. A. 346, 70 L. R. A. 765, Townsend, J., expresses the opinion that they are in ‘irreconcilable conflict.’ The decisions which have refused to hold that the giving of signals is a duty which cannot be delegated will be found collected in 2 Labatt, M. & S. 607. Many other cases in which failure to warn servants as to danger arising from the execution of the details of the work was held to be the wrong of a fellow servant will be found collected in a note by Mr. Labatt. 54 L. R. A. 120.

Defendant's contention is that this case is supported, moreover, not only by a considerable group of these more general authorities, but also by a number of cases which involved facts substantially identical with those in the case at bar. Thus it was held in Portance v. L. H. Co., 101 Wis. 574, 77 N. W. 875,70 Am. St. Rep. 932, that the workman and the hatchman were fellow servants, because the master who properly selects and instructs a man to give notice to the other employés of the movements of the apparatus in unloading coal from a vessel is not responsible for his failure to give warning. To the same effect, see Ocean S. S. Co. v. Cheeney, 86 Ga. 278, 12 S. E. 351;Cheeney v. Ocean S. S. Co., 92 Ga. 726, 19 S. E. 33,44 Am. St. Rep. 113;Hermann v. Mill Co. (D. C.) 71 Fed. 853. Defendants refer us also to cases decided by this court...