Consolidated Stone Company v. Ellis

• Citation: 91 N.E. 1095,46 Ind.App. 80
• Decision Date: 01 June 1910
• Docket Number: 7,035
• Parties: CONSOLIDATED STONE COMPANY v. ELLIS
• Court: Indiana Appellate Court

91 N.E. 1095

46 Ind.App. 80

CONSOLIDATED STONE COMPANY v. ELLIS

No. 7,035

Court of Appeals of Indiana

June 1, 1910

From Monroe Circuit Court; James B. Wilson, Judge.

Action by Clarence Ellis against the Consolidated Stone Company. From a judgment on a verdict for plaintiff for $ 1,500 defendant appeals.

Affirmed.

Duncan & Batman, for appellant.

Cyrus E. Davis and R. L. Morgan, for appellee.

OPINION

RABB, J.

Appellee sued appellant to recover damages for personal injuries alleged to have been caused by appellant's negligence. Appellant's demurrer to the complaint was overruled, the cause put at issue and a jury trial had resulting in a general verdict for appellee. With the general verdict, the jury returned answers to interrogatories. Appellant's motions for judgment on the answers to interrogatories and for a new trial were overruled, and judgment was rendered in favor of appellee on the verdict.

The errors assigned call in question the sufficiency of the complaint to withstand a demurrer, and the action of the court in overruling appellant's motions for judgment on the answers to interrogatories and for a new trial.

Appellee was injured while at work in the service of appellant in appellant's stone-quarry, by the dumping on him, by one of his fellow servants, of a wheelbarrow load of broken stone from the top of a ledge or cliff of stone beneath which he was engaged at work.

The facts averred in the complaint, and established by the general verdict and by the answers to the interrogatories returned by the jury are, in substance, that appellant had in its service a number of men engaged in quarrying stone. The place in which appellee was required to work when the injury complained of was received was not inherently dangerous, but was temporarily rendered so by the manner in which the work was managed. It became necessary to make a bed of stone spalls for a cut of stone to be turned onto, and it was the duty of appellee and other servants to arrange this bed of spalls. While appellee was engaged in this work appellant's foreman, to provide the spalls required, directed other servants of appellant to wheel them to the top of a cliff and dump them over, so that appellee and others engaged in making the bed were required to take the material from the place where it was being dumped over the cliff, while that work was being done by the men above, and there was danger to the men below of injury from the falling stone. To guard against this, appellee was required to keep a close watch on the men so engaged in dumping the spalls. Under these circumstances, appellee was directed by the foreman to divert his attention from the men at work with the wheelbarrows, and give it exclusively to his work in making the bed of spalls, promising, at the same time, to give appellee necessary warning of the danger arising from the work being done by the wheelbarrow men. Appellee obeyed the foreman's order, and while engrossed in his work, and through the negligence of the foreman in failing to give him warning, a wheelbarrow load of stone was dumped on him from the top of the cliff, causing the injury complained of. The failure of the foreman to give warning constitutes the negligence relied upon by appellee to fasten liability for the injury on appellant.

The same question presented on appellant's demurrer to the complaint arises on its motion for judgment on the answers to interrogatories. The points made by appellant are, that it appears from the facts averred in the complaint and from those established by the answers to the interrogatories (1) that the negligent act causing appellee's injury was not that of appellant, but that of appellee's fellow servant; that appellant's foreman, whose failure to warn appellee of the danger from the dumping of the spalls over the cliff, and appellee were at the time engaged in the performance of a duty which each owed to his common master; (2) that the injury complained of arose from a danger not inherent in the working place furnished by appellant to appellee, but from a transitory danger occasioned by the manner in which the work was done by appellant's servants, and which appellant was under no duty to guard appellee against.

There are certain well-established rules governing the relation of master and servant, among which is the rule that, in the absence of controlling statutory provisions, the master is not liable to the servant for injuries sustained by him while engaged in the master's service, caused by the negligence of a fellow servant, and that the master, having furnished his servants with a safe place in which to work, and safe appliances with which to work, is not liable for injuries to them resulting from transitory dangers arising in the progress of the work, produced by the manner in which the servants discharge the duties they owe to the master. There is also a well-recognized rule governing this relation, that the master owes the servant the duty to exercise reasonable care to furnish him a safe place in which to work, and to exercise the same care to keep the place safe, and when the work to be done by the servant is complicated or dangerous, and peril to the servant in the performance of the work can be minimized by adopting some practical system for conducting it, it is the duty of the master to adopt such system. To illustrate: If the master's work requires the cooperation of a number of servants, some of whom are required to handle material or appliances in such manner that others will be in danger therefrom, unless timely warned, and timely warning will eliminate such danger, it is the duty of the master, under such circumstances, to make provision for such warning. Upon these general rules, there is no discord in the authorities, and to them appellant and appellee each appeal to support their respective contentions--appellant insisting that the facts fall within the rules that exonerate the master from liability for injury to a servant occasioned by the negligence of his fellow servants, or that resulted from a transitory peril arising in the progress of the work, and caused by the manner in which it was carried on, and appellee insisting that the facts bring the case within the rules requiring the master to furnish the servant a safe place in which to work, to adopt rules for safely conducting the business, and to give warning to servants of dangers arising from the manner in which the work is conducted.

These rules must each be construed with reference to the other. While it is true that a master is not liable for the negligent acts of a fellow servant, yet it is also true that one occupying the position of servant of a common master may also be entrusted by the master with the performance of masterial duties, and the exercise of a master's prerogative. So it is not the title or rank of the person whose alleged negligent acts are being considered, but the nature of the act itself that must determine whether it was the negligence of the master or that of a fellow servant. The line of demarkation that separates the duties of the master from those of the servant is by no means clearly defined and easy to follow; nor is it always easy to determine when a given state of facts are within the rule requiring the master to adopt safe methods for conducting the business, or within the rule exonerating the master from liability because the injury complained of arose out of a transitory peril caused by the manner in which the servants carried on their master's work.

It is sometimes said that the character of the duty, whether masterial or otherwise, is to be determined by considering whether it is a duty of construction, preparation or repair on the one hand, or of operation on the other. Chicago, etc., R. Co. v. Barker (1908), 169 Ind. 670, 17 L. R. A. (N. S.) 542, 83 N.E. 369, and cases cited.

While this formula is undoubtedly correct as applied to the cases of the character there under consideration, it will not fit every state of facts. If the act in question was the exercise of the prerogative of the master, or if it was the performance of a duty of the master, whether in construction, preparation or repair, or in carrying on the work in hand, it is the master's act. It is a master's right to direct what work his servants shall do, and when and how it shall be done. And in directing the manner in which his work shall be done, it is the master's duty not to expose the servants to unnecessary peril in carrying it on.

In giving the direction to appellee to divert his attention from the men engaged in dumping stone over the cliff, and to give it to his own work, the foreman was clearly not performing any duty a servant owes to his master; he was exercising a masterial right, and therein he represented the master, and thereby imposed upon the master the duty to protect the appellee, by proper warning of the danger, which but for the exercise of this master's prerogative, this direction to the servant in the performance of his work, the appellee's own vigilance would have furnished.

In the case of Taylor v. Evansville, etc., R. Co. (1889), 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. 372, 22 N.E 876, the court said in deciding the case: "The obligation to make safe the...