Boettger v. Mauran

• Decision Date: 08 April 1940
• Docket Number: No. 8072.,8072.
• Citation: 12 A.2d 285
• Parties: BOETTGER v. MAURAN.
• Court: Rhode Island Supreme Court

12 A.2d 285

BOETTGER

v. MAURAN.

No. 8072.

Supreme Court of Rhode Island.

April 8, 1940.

[Copyrighted material omitted.]

Exceptions from Superior Court, Kent County; Alberic A. Archambault, Judge.

Action of trespass on the case by Adolf Boettger against Julia Lippitt Mauran for injuries sustained by plaintiff while working for defendant as gardener and greenhouse man. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled in part and sustained in part, and case remitted to superior court for new trial unless plaintiff file a remittitur.

Roland E. Meunier, of West Warwick, and Carroll & Dwyer and Edward F. J. Dwyer, all of Providence, for plaintiff.

Edwards & Angell, Patrick H. Quinn, and William H. Edwards, all of Providence, for defendant.

BAKER, Justice.

This is an action of trespass on the case for negligence in which, after a trial in the superior court, a jury returned a verdict for the plaintiff for $4,500. The case is now before us on a bill of exceptions duly prosecuted by the defendant after the trial justice had denied her motion for a new trial.

The principal facts of the case are not in serious dispute. In general it appeared from the evidence that, after some negotiations, the plaintiff, an experienced gardener and greenhouse man, started to work for the defendant, on April 13, 1937, on the latter's farm in Cranston, in this state. At this time the defendant, as a hobby, maintained on her farm a greenhouse which was under her personal direction and control. Attached to the greenhouse proper was a potting shed from which direct entry was had into the boiler shed and pit. The boiler shed floor, which was a step or two below the level of the floor of the potting shed, consisted of a platform, so called, constructed of matched spruce boards resting for support upon an iron pipe and joists. From this platform, which did not run the full length of the boiler shed, access was had to the boiler pit itself by means of a short flight of steps. This pit, part of which extended under the platform above referred to, was three feet eight inches below the level of the platform and contained, among other things, the boiler which furnished heat for the greenhouse. One of the plaintiff's duties was to tend the fire in this boiler so that the proper temperature might be maintained in the greenhouse.

The steps just mentioned, four or five in number, descended at a rather steep pitch from the platform to the floor of the pit. They were constructed of wood with treads but no risers and had no handrail. The lower part rested on the cement floor of the boiler pit and the upper end against the edge of the platform. This flight of steps was not secured, fastened or attached in any way. On April 24, 1937, between 4 and 4:30 o'clock, p. m., the plaintiff started to go down the steps in question in order to tend the fire in the boiler. While he was on the steps, facing forward, they suddenly fell or slipped to the floor of the boiler pit, thereby causing him to be thrown lengthwise upon his back onto such steps, which, after the fall, were underneath him. As a result of this accident the plaintiff's back was in jured.

His declaration contains several counts. For present purposes the important allegations therein are, in substance, a failure on the part of the defendant to provide for the plaintiff a reasonably safe place in which to work, particularly in relation to the steps in question, and also a failure to warn him of the alleged dangerous and unsafe condition of such steps. It is admitted that the workmen's compensation act has no application in the instant case, and that the defendant has the right to avail herself of all common-law defenses proper in a case between master and servant.

The defendant contends that the trial justice committed error when he denied. her motion for a directed verdict. This motion was based upon two grounds: First, that the evidence showed that, as a matter of law, the plaintiff assumed the risk in going upon the steps in question; second, that if the proximate cause of the accident was the negligence of any person, it was the negligence of a fellow servant. Upon consideration, we are of the opinion that the defendant's contention cannot be supported on either ground, and that the trial justice ruled correctly when he denied the defendant's motion.

Her claim that, under the facts appearing in evidence, the plaintiff, as a matter of law, assumed the risk when he used said steps is based largely on the decision of this court in Sheridan v. Gorham Manufacturing Co., 28 R.I. 256, 66 A. 576, 13 L.R.A.,N.S., 687. In that case, however, it appeared that the instrumentality, the use of which caused the plaintiff's injuries, was a ladder, which was held by the court to be an ordinary hand tool, knowledge of the obvious imperfections of which was chargeable to the servant and to the master equally. The above-cited case is clearly distinguishable on its facts from the instant case. The evidence before us shows that the steps, while movable, were not constructed or used as a ladder. They had been adjusted so as to make them suitable for permanent placement in the boiler pit and were being used there. They could not, in our judgment, properly be held, as a matter of law, to be a hand tool similar to an ordinary ladder, so as to cause the application, in the present case, of the above rule of law that a servant assumes the risk of obvious imperfections when he uses such a tool.

As bearing upon the defendant's contention that the evidence shows, as a matter of law, that the proximate cause of the plaintiff's injury was the negligence of a fellow servant, the following undisputed facts appearing in evidence are pertinent: Some time prior to the happening of the occurrence involved herein the steps in question had been obtained by the defendant from a dismantled greenhouse on another estate. After being kept by her in storage for some time, they were later set up in the boiler pit in her greenhouse, following a fire therein. They were placed there, about a year before the accident took place, by one Smyth, the defendant's foreman, assisted by a carpenter who fitted them into position. The cement floor of the boiler pit was uneven, and a drain about an inch deep ran along the floor close to where the steps stood.

Smyth, who ordinarily did not have oversight of the greenhouse work, the plaintiff being directly under the defendant's control, apparently installed the steps on his own initiative and not at anyone's suggestion, and he and the defendant did not discuss the fact that the steps were unattached. However, he showed the plaintiff around the greenhouse and the boiler pit when the latter entered the defendant's employment. About a week before that date Smyth had taken the steps down for a short time, in order to go underneath the platform, but had replaced them in the same position in which they had stood since they were originally set up, and apparently they so remained until the accident happened. There was no evidence that anyone else moved the steps or changed their position.

This court has held that the character of the act, and not the position held by the servant, is the criterion of fellow service. In Hanna v. Granger, 18 R.I. 507, at page 512, 28 A. 659, at page 661, the following language from another case is approved as setting out the correct rule: "Those cases which preserve the fellow-servant rule in its full integrity bring the facts of each case to the test, not of the rank of the negligent servant, but of the character of the negligence from which damage results. Did the master owe to his servant a duty as master? Answer the inquiry in the affirmative, and he cannot escape a careless discharge of that duty by shifting the burden to the shoulders of a servant, however inferior his position may be. It is the negligence of the master himself, because that was carelessly done which he was bound to have carefully performed." See also Crandall v. Stafford Mfg. Co., 24 R.I. 555, 54 A. 52; Clavin v. William Tinkham Co., 29 R.I. 599, 73 A. 392; 132 Am.St.Rep. 836.

In conformity with the above general rule, it has been held that the duty of furnishing a servant a reasonably safe place in which to work is an obligation which is imposed upon the master and which he cannot delegate to another. If the performance of this duty is entrusted to an employee, the latter stands in the place of the principal and will not be regarded as a fellow servant if another employee is injured by reason of the breach of such duty. Burke v. National India Rubber Co., 21 R.I. 446, 44 A. 307; Vartanian v. New York, N. H. & H. R. R. Co., 25 R.I. 398, 56 A. 184. 18 R.C.L. 735. The same rule is applicable in connection with the duty of a master to warn his servant as to dangers which are not obvious, and of which the former had or should have had knowledge. 18 R.C.L. 732. The case of Frawley v. Sheldon, 20 R.I. 258, 38 A. 370, cited by the defendant, is not contrary to the principles of law above set out. In that case the act of negligence complained of, the careless dropping of a hook by a foreman, was stated by the court to be an act "into which the element of his superiority as a servant did not enter".

Assuming that there was evidence in the present case which tended to support the contention that Smyth was guilty of negligence in placing or setting up the steps in question, it is clear that, under the holdings above referred to, such negligence was not the negligence of a fellow servant which could be set up by way of defense against the plaintiff's claim. This is so because such negligence, if any, related to the furnishing of a reasonably safe place in which to work, or to the warning of dangers not obvious, duties which the defendant could not delegate.

In our opinion, therefore, under the evidence submitted, the question of the negligence of a fellow servant does not...