Coulston v. Dover Lumber Co.

• Court: Idaho Supreme Court
• Writing for the Court: SULLIVAN, C. J.
• Citation: Coulston v. Dover Lumber Co., 28 Idaho 390, 154 P. 636 (Idaho 1916)
• Decision Date: 15 January 1916
• Parties: CHARLES H. COULSTON, Respondent, v. THE DOVER LUMBER CO., a Corporation, Appellant

154 P. 636

28 Idaho 390

CHARLES H. COULSTON, Respondent, v. THE DOVER LUMBER CO., a Corporation, Appellant

Supreme Court of Idaho

January 15, 1916

PERSONAL INJURIES-NEGLIGENCE OF MASTER-SAFE PLACE TO WORK-PROMISE TO REPAIR-ASSUMED RISK - VICE-PRINCIPAL-FELLOW-SERVANT.

1. Where an employee has full knowledge of the unsafe condition of the premises or appliances in and with which he has to work, he is deemed to have voluntarily assumed the special risk incident to such employment, subject, however, to the exception that in case the servant notifies the master of such unsafe condition and objects to continue working under the special risk incident thereto, but is induced to continue working under such risk by a promise of the master to remove the danger within a reasonable time, the servant does not thereafter assume the risk during such time.

[As to assumption of risk in the case of saws, see note in Ann.Cas 1913C, 125.]

2. In such cases the servant is deemed to have no cause of action unless he prove that his reliance upon the promise of the master was the moving consideration for his consent to continue subjecting himself to such special risk.

3. Held, under the evidence in this case that the alleged defective guide of a band-saw was not the proximate cause of the injury.

4. If the act of one employee that caused an injury to another was an act pertaining to the duty owed by the master to a servant, the master is responsible for the manner of its performance, irrespective of the rank or grade of the servant or employee to whom it was intrusted; but if it was an act pertaining only to the duty of an operative under such employment, the employee performing such act is a fellow-servant of his coemployees, whatever his rank or grade may be, and in the latter case the master is not liable for an injury caused by the negligence of such employee. (Larsen v. Le Doux, 11 Idaho 49, 81 P. 600, cited and followed.)

5. Under the facts of this case, held, that the sawyer was a fellow-servant of the plaintiff and not a vice-principal.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robert N. Dunn, Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

H. H Taylor and James A. Williams, for Appellant.

There is no evidence showing that respondent continued at his work in reliance upon the alleged promises to repair; that must have been alleged and proved in order to have brought him within the terms of the exception. (Notthoff v. Los Angeles Gas & Electric Co., 161 Cal. 93, 118 P. 436 438-441; 1 Labatt on Master and Servant, sec. 418, p. 1184; Roy v. Hodge, 74 N.H. 190, 66 A. 123; 26 Cyc. 1211, 1212; Gulf C. & S. F. R. Co. v. Garren, 96 Tex. 605. 97 Am. St. 939, 74 S.W. 897.)

The act of the sawyer, if it were a negligent act, could no more be attributed to the appellant than could the carriage crew's failure to withdraw the dogs. As to such acts, every member of the crew was to every other member a fellow-servant. (Snyder v. Viola Mining & Smelting Co., 3 Idaho 28, 26 P. 127; Sartin v. Oregon Short Line R. Co., 27 Utah 447, 76 P. 219; Larsen v. Le Doux, 11 Idaho 49; 81 P. 600.)

Idaho, California, New York and a majority of the states repudiate the superior servant rule. (26 Cyc. 1307; Ongaro v. Twohy, 57 Wash. 668, 107 P. 834; Wood v. Potlatch Lumber Co., 213 F. 591, 130 C. C. A. 171; Zienke v. Northern P. R. Co., 8 Idaho 54, 66 P. 828; Bokamp v. Chicago & A. R. Co., 123 Mo.App. 270, 100 S.W. 689.)

Nondelegable duty has no place in this case; the sawyer was not in performance of a duty imposed upon the master personally. The machinery was safe, every member of the crew was experienced and competent; no criticism of the plan or usual method of operation is made; and it is not claimed that supervision was necessary. It is not a case where a dangerous agency was put in operation without warning those occupying a place of danger. (26 Cyc. 1318-1320; Lepan v. Hall, 128 Mich. 523, 87 N.W. 619; Doerr v. Daily News Pub. Co., 97 Minn. 248, 106 N.W. 1044; Small v. Allington & Curtis Mfg. Co., 94 Me. 551, 48 A. 177; McDonald v. Buckley, 109 F. 290, 48 C. C. A. 372; Beck v. International Harvester Co., 85 Wash. 413, 148 P. 35; Vanordstrand v. Northern Pacific Ry. Co., 86 Wash. 665, 151 P. 89.)

George D. Lantz and Wm. J. Costello, for Respondent.

There was in this case a defective part of a machine, the guide, the existence of which defect was likely to cause serious consequences unless repaired. Complaint was made to the master resulting in a promise to repair, thus bringing him within the rule laid down by this court in the case of Harvey v. Alturas Gold Min. Co., 3 Idaho 510, 31 P. 819. (Beach on Negligence, sec. 140; Eureka Co. v. Bass, 81 Ala. 200, 60 Am. Rep. 152, 8 So. 216; Gibson v. Minneapolis, St. P. etc. Ry. Co., 55 Minn. 177, 43 Am. St. 482, 56 N.W. 686; Texas & N. O. Ry. Co. v. Bingle, 9 Tex. Civ. 322, 29 S.W. 674; Smith v. E. W. Backus Lumber Co., 64 Minn. 447, 67 N.W. 358.)

The later cases decided by the supreme court of the state of Washington clearly show that the rule laid down by the courts of that state for determining who are and who are not vice-principals is identical with that adopted by Idaho.

"In the states of both Washington and Idaho, the character of the act is the criterion or rule for determining who are fellow-servants and who are vice-principals." (Jackson v. Danaher Lumber Co., 53 Wash. 596, 102 P. 416; McDonough v. Great Northern Ry. Co., 15 Wash. 244, 46 P. 334; Hammarberg v. St. Paul & Tacoma Lumber Co., 19 Wash. 537, 53 P. 727.)

"The rule has been frequently announced by this court that it is not the rank of the servant but the character of the act which determines the relationship of coemployees." (Jacobsen v. Rothschild, 62 Wash. 127, 130, 113 P. 261.)

It follows that the decisions of the state of Washington will be in point in determining the relationship which existed between respondent and the head sawyer, Doe. (King v. Page Lumber Co. 66 Wash. 123, 119 P. 180; Comrade v. Atlas Lumber & Shingle Co., 44 Wash. 470, 87 P. 517; Westerlund v. Rothschild, 53 Wash. 626, 102 P. 765; St. John v. Cascade Lumber etc. Co., 53 Wash. 193, 101 P. 833.)

The head sawyer, when charged with the nondelegable duty of a master, becomes, and is, a vice-principal. (Eidner v. Three Lakes Lumber Co., 45 Wash. 323, 88 P. 326; Maloney v. Stetson & Post Mill Co., 46 Wash. 645, 90 P. 1046; Evans v. Louisiana Lumber Co., 111 La. 534, 35 So. 736; Hunt v. Desloge Consol. Lead Co., 104 Mo.App. 377, 79 S.W. 710; Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145, 69 N.E. 12; Illinois Southern R. Co. v. Marshall, 210 Ill. 562, 71 N.E. 597, 66 L. R. A. 297.)

The giving of orders with respect to work by subordinates was one of the master's duties. (Labatt, Master & Servant, sec. 541; Coffeyville Vitrified Brick & Tile Co. v. Shanks, 69 Kan. 306, 76 P. 856; Dixon v. Union Iron Works, 90 Minn. 492, 97 N.W. 375.)

SULLIVAN, C. J. Budge and Morgan, JJ., Concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover $ 50,000 damages for personal injuries sustained while working in appellant's sawmill. It is alleged in the complaint that the defendant company who is appellant here, owns and operates a certain sawmill, and for the purpose of manufacturing lumber, a certain appliance or apparatus, commonly known as a carriage, was used to hold in place the log which is being sawed; that said carriage is operated and moves back and forth upon a track by means of steam power; that on said carriage there are blocks or knees which are used to hold, follow up and push forward the log as it is being sawed and as each board is sawed from the log to push the log forward toward the saw that the next board may be sawed therefrom; that said carriage was operated by a head sawyer in the employ of the defendant company, who had the control and direction of the men employed in and around said carriage, which men consisted of a head sawyer, a setter, a rider and a tail sawyer or off-bearer; that plaintiff was the tail sawyer; that in the operation of said carriage, the head sawyer's orders are given to and obeyed by the tail sawyer, rider and setter, and at the time of the happening of the injuries complained of, they were working under the orders and directions of said head sawyer; that the defendant maintained over said saw a certain sliding or adjustable gauge or guide which is used to keep the saw steady and keep it from jumping from side to side, which gauge or guide is adjustable to conform to the thickness of the log being sawed; that it was the duty of the tail sawyer to adjust said guide to the size of the log; that on the 30th of July, 1912, the plaintiff was employed as tail sawyer and had been so employed from about the first of June, 1912; that for some time prior to the accident said gauge had been in a defective condition, and that it had not stayed in place but kept sliding down, of which defective condition plaintiff had notified the defendant company through its foreman, who informed the plaintiff that he would look after it, but he failed to do so; that because of the defective condition of said gauge plaintiff was compelled to and was giving his almost constant attention to keep said gauge in place in order to avoid an accident; that on the 12th day of July, 1912, the plaintiff being engaged as the tail sawyer, and while exercising due care and caution in the performance of his duties and with his attention fixed on said defective gauge or guide, the last board of a log which had just been sawed struck plaintiff on the left leg and caused the injuries...