Craesafulli v. Winston Bros. Co.

• Citation: 108 P. 740,18 Idaho 158
• Parties: JOE CRAESAFULLI, Respondent, v. WINSTON BROTHERS COMPANY, Appellant
• Decision Date: 29 April 1910
• Court: United States State Supreme Court of Idaho

108 P. 740

18 Idaho 158

JOE CRAESAFULLI, Respondent, v. WINSTON BROTHERS COMPANY, Appellant

Supreme Court of Idaho

April 29, 1910

INJURY TO EMPLOYEE-NEGLIGENCE OF MASTER-FELLOW-SERVANT-ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE.

(Syllabus by the court.)

1. Held, under the facts of this case that it was the duty of master to see that the scaffold from which the defendant fell and was injured was safely erected.

2. Held, that the fellow-servant doctrine, assumption of risk and contributory negligence rules are not applicable to the facts of this case.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.

Action to recover damages for an injury alleged to have occurred because of the negligent manner in which appellant had erected a scaffold for the purpose of timbering a tunnel. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Kerns &amp Ryan, for Appellant.

The burden of proof is on the plaintiff, where an employee sues for personal injuries alleged to be caused by defective appliances, to prove the employer's failure to exercise the reasonable care required of him by law with respect to such appliances and machinery, and if the appliances are of such common use and not of the character that are used by skilled laborers or workmen, but such as every person is supposed to be familiar with, the same degree of care, if any, is not required. (Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 P. 940; Baltimore etc. R. Co v. Jones, 95 U.S. 439, 12 L.Ed. 506; 20 Am. & Eng. Ency of Law, 86, 87, and cases cited; Labatt on Master and Servant, sec. 832; State v. Malster, 57 Md. 287; A. T. & S. R. Co. v. Ledbetter, 34 Kan. 326, 8 P. 411.)

If the circumstances relied upon to show negligence are consistent with ordinary care on the part of the master, the charge of negligence will fail for want of proof. (20 Am. & Eng. Ency. of Law, 87, 88; Kincaid v. O. S. L. R., 22 Ore. 35, 29 P. 3.)

The defendant had the right to use any sort of appliances it saw fit, and if there was any defect in the appliances, the plaintiff assumed the risk by continuing to work therewith. (O'Rourke v. U. P. Ry. Co., 22 F. 191; Alcorn v. Chicago Ry. Co., 108 Mo. 81, 18 S.W. 191; Baltimore etc. Ry. Co. v. State, 75 Md. 152, 32 Am. St. 372, 23 A. 310; Gibson v. Erie Ry. Co., 63 N.Y. 453, 20 Am. Rep. 552.)

There is nothing to show that the shift boss did not direct that the ladder and plank be erected in the usual and best manner. We have a right to presume, in the absence of any evidence to the contrary, that he did so.

"Where the evidence shows that the acts complained of resulting in the injury were attributable to a fellow-servant, the employer cannot be held to respond in damages for such injury." (Zienke v. N. P. Ry. Co., 8 Idaho 54, 66 P. 828; Larsen v. Le Doux, 11 Idaho 49, 81 P. 600.)

"Before a servant can recover he must show that the injury did not arise from a defect obvious to himself or which by the exercise of ordinary care he might have known; and he must show it was not from hazard incident to the business." (Minty v. U. P. R. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361, 363.)

"A shift boss in charge of a gang of men whose duty it is to direct the men when, where and how to work, to supervise them in their labor and to see that they properly perform it . . . . is a fellow-servant of the men on his shift, the risk of whose negligence they assume." (Weeks v. Scharer, 111 F. 330, 49 C. C. A. 372; Anderson v. Winston, 31 F. 528.)

Where it appeared that plaintiff was injured by the falling of a plank, but there was no evidence as to how it happened to fall, there could be no recovery. (McGowan v. Nelson, 36 Mont. 67, 92 P. 40.)

Where the place that an employee is to work is a room in a coal mine or other mine, or tunnel, the place is provided in the progress of the work by the employees themselves. It is made secure or otherwise by the way in which they perform their respective duties. It is just like the scaffold upon which painters or builders stand in prosecuting their work. (Shaw v. Min. Co., 31 Mont. 138, 77 P. 515; Cummings v. Reduction Co., 26 Mont. 434, 68 P. 852.)

"A mere foreman or boss of a gang of men working in a mine, employed in the same department of business and under a common head, is a fellow-servant with them, whether he has or has not authority to engage and discharge the men under him." (Alaska Treadwell Gold Min. Co. v. Whelan, 168 U.S. 86, 18 S.Ct. 40, 42 L.Ed. 390; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 773; Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L.Ed. 612.)

Featherstone & Fox, and Gray & Knight, for Respondent.

There is a duty devolving upon the master to furnish a servant with a reasonably safe place in which to work. This is a positive duty and cannot be delegated, and if the master attempts to delegate that duty to any person of whatsoever rank, the acts of such a person in this respect are the acts of the master, and the master consequently responsible. (Mather v. Rillston, 156 U.S. 391, 15 S.Ct. 464, 39 L.Ed. 470, 18 Morr. Min. Rep. 165; Norman v. Wabash R. Co., 62 F. 728, 10 C. C. A. 617; Railway Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; Western Coal Co. v. Ingraham, 70 F. 219, 17 C. C. A. 71; Rowden v. Schoenherr Mining Co., 136 Mo.App. 376, 117 S.W. 695; Crist v. Wichita Gas etc. Co., 72 Kan. 135, 83 P. 200; Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 87 P. 998, 10 Ann. Cas. 1.)

It is the absolute duty of the master to furnish safe scaffolds, unless by the contract of employment the servant has assumed such duty. The master is not absolved from the consequences attendant upon his failure to do so by having merely furnished sufficient suitable material. (Metcalf Co. v. Nystedt, 203 Ill. 333, 67 N.E. 765; Chicago etc. Ry. Co. v. Maroney, 170 Ill. 526, 62 Am. St. Rep. 396, 48 N.E. 953; McBeath v. Rawle, 192 Ill. 626, 61 N.E. 847, 69 L. R. A. 697; Donahue v. Buck & Co., 197 Mass. 550, 83 N.E. 1090, 18 L. R. A., N. S., 476; Thompson v. Bartlett, 71 N.H. 174, 93 Am. St. 504, 51 A. 633; Kansas City Car & Foundry Co. v. Sawyer, 7 Kan. App. 146, 53 P. 91; Blackman v. Thompson etc. Co., 102 Ga. 64, 29 S.E. 120; Bloomquist v. Chicago etc. Ry. Co., 60 Minn. 426, 62 N.W. 818; Carlson v. Northwestern Tel. Exchange, 63 Minn. 428, 65 N.W. 914; Lindvall v. Wood, 41 Minn. 212, 42 N.W. 1020, 4 L. R. A. 793; McNamara v. Macdonough, 102 Cal. 575, 36 P. 941; Withiam v. Tenino Stone Quarry, 48 Wash. 127, 92 P. 900.)

The servant does not assume all of the risks of his employment, but only such as are usual, ordinary and remain so incident after the master has taken reasonable care to prevent or remove them, or, if extraordinary, such as are obvious and expose him to danger so imminent that an ordinarily prudent man would anticipate injury as so probable that he would not enter upon or remain in the employment. (Malott v. Hood, 201 Ill. 202, 66 N.E. 247; Clark v. Wolverine Portland Cement Co., 138 Mich. 673, 101 N.W. 845; Revolinski v. Adams Coal Co., 118 Wis. 324, 95 N.W. 123; Drake v. San Antonio & A. P. Co., 99 Tex. 240, 89 S.W. 409.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover damages in the sum of $ 1,975 for injuries alleged to have been sustained by the plaintiff on or about the 2d day of December, 1908, while in the employ of the appellant corporation, by reason of his having fallen from a scaffolding when engaged in holding a plumb-line for the purpose of plumbing a post used in timbering a tunnel. The appellant at the time of the injury was engaged in driving what is known as the St. Paul Pass Tunnel on the Chicago, Milwaukee & St. Paul Railway through the Bitter Root mountains, which mountains form the dividing line between the states of Montana and Idaho. The accident occurred on the Montana side of the dividing line.

It appears from the record that said tunnel was driven in substantially the following manner:

There was what is known as the heading, which was the upper or forward section; below this and several hundred feet behind the face of the heading was the bench or lower portion. This tunnel was permanently timbered as near up to the face of the bench or lower portion of the tunnel as practicable; sometimes within a few feet of the breast of the bench. The permanent timbers were set from two to four feet apart, as the exigencies of the case demanded, and were erected as follows: First, a permanent foot block or mud fill was placed on the floor of the tunnel. Upon this was set what is known as the plumb-post or permanent timber 12x12 in. square. The post was raised and driven in at the top under the wall-plate by the use of hammers. In order then to plumb the post a scaffold or staging was erected along the sides of the tunnel as follows: A piece of lagging was nailed between two plumb-posts on each side of the tunnel, and on this was placed what is known as a spreader or cross-piece (a piece of timber 4x6 inches) crosswise of the tunnel. Against the face or breast of the bench a ladder was placed, and from this spreader a plank (4x6) was placed, resting one end upon the spreader and the other on a rung of the ladder. Upon the staging a man was sent with a plumb-line which he would hold up against the wall-plate while the other men would hammer the post into line.

Supervising the entire construction of the tunnel was a shift boss, who had authority to hire and discharge men working in said tunnel. The men were classified as machinemen, helpers muckers, steam shovel engineers, cranemen, skinners,...