Brown v. Peoples Gaslight Co.

• Decision Date: 30 October 1908
• Citation: 71 A. 204,81 Vt. 477
• Parties: BROWN v. PEOPLES GASLIGHT CO.
• Court: Vermont Supreme Court

71 A. 204

81 Vt. 477

BROWN

v. PEOPLES GASLIGHT CO.

Supreme Court of Vermont. Rutland.

Oct. 30, 1908.

Exceptions from Rutland County Court; Loveland Munson, Judge.

Action by Charles A. Brown against the People's Gaslight Company. From a judgment for plaintiff, defendant brings exceptions. Reversed and rendered.

E. H. O'Brien and O. M. Barber, for plaintiff.

Butler & Maloney, for defendant.

POWERS, J. Among the nondelegable duties which a master owes his servant is that of providing and maintaining a reasonably safe place in which to work. But this rule does not require the master to supervise the merely executive details of the work as it goes along. These are acts of service, and are within the proper range of the servant's duties. They may be delegated to a competent co-servant, and, when so delegated, negligence therein, though resulting in injury, will not support an action against the master. And it matters not whether the offending servant be a foreman, overseer, superintendent, or a mere fellow workman; the result is precisely the same—the master is not legally responsible—for it is the character of the act in question which determines. So it is that when a master provides his servant with suitable materials and instrumentalities to make safe the place, and a competent foreman to use and apply them, he fully discharges his legal duty, and the negligence of the foreman in the manner in which the appliances are used, or in failing to make use of them at all, will not establish liability on the part of the master. Many cases support this rule and illustrate its application. Thus in Davis v. So. Pac. Co., 98 Cal. 19, 32 Pac. 708, 35 Am. St. Rep. 133, the plaintiff's intestate was a sectionman on the defendant's railroad, and was acting under a foreman named Bresnaban. By direction of the latter he ran a hand car onto a siding to clear the main line for an approaching train; Bresnahan setting the switch for that purpose. Bresnahan having failed to close the switch, the train took the siding, collided with the hand car, and killed the intestate, who was at work under the car making some unimportant repairs. It was held that it was the duty of the company to provide a suitable switch, and competent servants to operate it, and that, when it had done so, its duty toward the intestate was fully performed; that the duty violated did not relate to the place of work, but to the negligent use of an appliance or instrumentality which was proper and suitable for the purpose for which it was furnished; and that such use of it was simply a detail of the work or management of the business, and that Bresnahan was a fellow servant. A recovery against the company was denied. Again, in Kelly v. New Haven Steamboat Co., 74 Conn. 343, 50 Atl. 871, 57 L. R. A. 494, 92 Am. St. Rep. 220, it was held that a shipowner who had furnished a proper fender to be used, when necessary, in making the boat fast to the wharf, was not liable to one of the crew for the negligence of the mate in failing to use the fender, whereby he was injured, and that it was not a personal duty of the company to see to it that the fender was actually made use of. The same rule was applied in Tilley v. Light & Power Co., 74 N. H. 316, 67 Atl. 946. There the plaintiff was engaged in cleaning out a gas main under the direction of a foreman who had charge of the defendant's gas department. The main was provided with valves which, if closed, would cut off the flow of gas through the main. Through the neglect of the foreman to close these valves, an explosion occurred which injured the plaintiff. It was held that the operation of the valves was an act of service purely, and the negligence that of a fellow servant. The court says: "The defendant, having provided proper appliances for securing safety to their employés, was not chargeable with the nondelegable duty of properly operating them. They were at liberty to intrust the operation of the appliances to any one of their employés, provided only they exercised ordinary care in selecting the employé; and it is not contended that they failed in this respect in this instance. At best, so far as appears by the testimony, the acts required to secure safety of the place were mere acts of service which the defendants might properly delegate to their employés. The plaintiff's position is not strengthened to any degree by attributing his injury to want of safety in the place, for such course leads to the same result, namely, that the negligence was that of a co-employé of the plaintiff, for which the defendants are not responsible."

Cases much like the one in hand are not wanting. In Zeigler v. Day, 123 Mass. 152, the defendant was a contractor engaged in the construction of a sewer through the streets of Cambridge. The plaintiff was at work for him excavating a trench through soil more or less sandy, under the direction of one Winning, who had charge of the work as superintendent, and whose skill and competency were admitted. For the safety of the men in the trench it was necessary in some places to shore up the sides. The necessity for this, as well as the proper mode of applying the safeguards was from the nature of the case left to be determined by the superintendent as the work progressed. There was no evidence that the defendant failed to furnish sufficient and suitable material for the construction of the required safeguards, or that he was chargeable with any specific personal neglect or knew of the cause of this injury, though he was occasionally present as the work went on. In granting a nonsuit, the court said: "In the case at bar the work was committed to the supervision of a skillful and competent superintendent. It required for the protection of the men the frequent use of temporary structures, the location and erection of which, as the digging progressed, was a part of the work in which the superintendent and the men under him were alike employed, and for the preparation of which, as in case of the scaffold of the mason or the carpenter, the master is not liable, unless there is something to show that he assumed it as a duty independent of the servant's employment." In Floyd v. Sugden, 134 Mass. 563, the plaintiff was engaged in uncovering a penstock belonging to the defendant under the direction of one Gilman, who had full charge and control of the premises and the work. A trench had been opened up to get at the penstock, and while at work therein, at the bottom of the trench and on the top of the penstock, the latter gave way, and the sides of the trench caved in upon him, and caused the injuries complained of. It appeared that the trench was dug in very sandy soil, and the evidence tended to show that the sides ought to have been shored up. No shoring was used, and none specifically furnished. But the evidence tended to show that there was an abundance of suitable materials belonging to ...