Ed. Maloney v. Winston Bros. Company

• Decision Date: 07 December 1910
• Citation: 111 P. 1080,18 Idaho 757
• Parties: ED. MALONEY, Respondent, v. WINSTON BROS. COMPANY, Appellant
• Court: Idaho Supreme Court

111 P. 1080

18 Idaho 757

ED. MALONEY, Respondent, v. WINSTON BROS. COMPANY, Appellant

Supreme Court of Idaho

December 7, 1910

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Modified and affirmed, with costs in favor of the respondent.

Briefs filed on behalf of Appellant by Edgar Wilson, A. G. Kerns, and F. M. Dudley.

Briefs filed on behalf of Respondent by Gray & Knight, and John H. Wourms.

AILSHIE, J. Sullivan, C. J., concurs.

OPINION The leading authorities cited by counsel on points decided are referred to in the opinion of the court.

AILSHIE J.

A rehearing was granted in this case, and the matter was argued exhaustively orally, and four separate briefs by different counsel have been filed on behalf of appellants, in which the questions of fact involved are discussed and the authorities bearing on the case have been exhaustively analyzed and considered. The chief argument on behalf of appellant has been directed to two propositions: first, that in a case like this the master is under no obligation to furnish the servant with a safe place in which to work, that at the most "the master is only liable to the exercise of reasonable care to furnish the servant with a reasonably safe place in which to discharge the work for which he is employed." Second, it is insisted that the mere happening of an accident does not imply that the master has been negligent, but that the master's negligence must be alleged and proven.

We will first briefly notice these questions before dealing with the other questions to which less importance has been attached. It is both impracticable and impossible for the court to review and consider the multitude of authorities cited in this case. We may say, however, in the outset, that we have no serious fault to find with either of the propositions above stated for which appellant contends. To say that the master is under the duty of exercising "reasonable care" in order to make a place "reasonably safe" in which his servant is to work is substantially the same as to say "the master must furnish the servant a reasonably safe place in which to work." To say that there is any material or substantial difference between the two propositions is only a legal refinement and a theoretical distinction which is not distinguishable by a jury of practical men in drawing the line between duty and negligence. The master must use reasonable care in each instance, and that is true whether he is to furnish a "reasonably safe place" in which the servant shall work or the servant himself is employed to make the place in which he shall work. In no event is the master relieved from the exercise of "reasonable care" for the safety and protection of his employee. In the one case, however, the employee may not be able to recover because of his assumption of risk or his contributory negligence, and in another case he may be free from fault himself and the master is liable on account of his failure to exercise reasonable care. In other words, the failure of the master to discharge his legal duty by the exercise of reasonable care does not always subject him to liability in damages, for the reason that other intervening circumstances sometimes relieve him of liability. (Longpre v. Big Blackfoot M. Co., 38 Mont. 99, 99 P. 131.)

Under the second proposition advanced by counsel for appellant, particular stress is laid upon the following sentence found in the original opinion, which succeeds a statement of the reciprocal duties and liabilities of the master and servant: "The law assumes that when these reciprocal duties have been faithfully discharged no injury of which the law takes cognizance will occur, but the moment an accident does occur, the presumption arises that either the master or servant has been negligent, or that both have contributed to the injury." We apprehend that the objection to the foregoing quotation arises either out of a failure to observe it closely or read it in connection with the balance of the opinion. As an abstract proposition, we think there can be no doubt as to its correctness. The presumption which it is stated arises on the happening of an accident does not, in the absence of proof, identify the party guilty of the negligence. It is stated, and we think correctly too, that as an abstract proposition the happening of an accident "of which the law takes cognizance" at once implies an act of negligence on the part of someone. It is not the law anywhere, so far as we are aware, that the mere happening of an accident is of itself proof that the master has been negligent and is liable for the injury and damage sustained. The happening of the accident, however, must be proven before there is any occasion for proving negligence on the part of the master. The fact of the accident and injury established, circumstances and physical conditions may be resorted to for the purpose of determining on whom the responsibility for the accident rests and to whom the negligence is imputable. In the original opinion we said:

"The evidence does not show either that an inspection was or was not made prior to the accident. Respondent testified that it looked safe so far as he could see when he went to work, but appellant does not show that any inspection had been made. The rock and earth which fell on respondent appears to have come from the roof of the tunnel, and the witnesses say that if the roof had been sounded, that it is reasonably certain that the accident would have been averted. They testify as to the nature of the formation and probability of a sounding having located this danger and enabled the men to bar it down before commencing to muck. . . . Under the facts of this case and the circumstances under which the injury occurred, the nature of the place and the attendant circumstances as shown by the witnesses, we think there was sufficient evidence before the jury from which they might fairly conclude that the master who was represented by the shift boss was negligent in the discharge of his duty in inspecting and examining or failing to inspect the place where respondent was set to work, and in not giving such directions as were necessary in order to have rendered the place safe and thereby avoided the injury which resulted." (See, also, Norman v. Wabash R. Co., 62 F. 727, 10 C. C. A. 617; Central Coal & Coke Co. v. Williams, 173 F. 337, 97 C. C. A. 597; Haynie v. Tenn. Coal, Iron & R. Co., 175 F. 55.)

In this case the servant was not primarily engaged in making the place safe in which he worked. In this respect the case differs materially from Thurman v. Pittsburg & Montana Copper Co. (Mont.), 41 Mont. 141, 108 P. 588, on which appellant relies. There the servant was charged with the special duty of making the place safe. Here the servant was under the direction and control of the shift boss. It was his duty when directed by the shift boss to assist in making the place safe. The determination, however, as to what should be done and when it was necessary to perform an act looking toward the making of the place safe rested with the shift boss, and it was the duty of the shift boss to make the inspection before setting the men to work. In this case it does not appear whether an inspection was made or not. The defendant produced no evidence to that effect, and the plaintiff did not know. He did know, however, that subsequent events demonstrated that the place was not safe. He furnished proof of the physical conditions and the attendant circumstances, from which it might well be concluded that the inspection had either not been made, or if made had been negligently made.

Three days prior to the filing of the original opinion in this case, the court of appeals of the state of Kentucky had under consideration a case involving a very similar state of facts in Williams Coal Co. v. Cooper (Ky.), 138 Ky. 287, 127 S.W. 1000. The court said in that case:

"It is argued that, if it was the duty of the coal company to keep the room reasonably safe, this duty was performed, as the 'loader' whose business it was to examine the roof and put it in a reasonably safe condition performed this service; at any rate, exercised his best judgment in attempting to do so. And it is said that, as the 'loader' believed after inspection that the room was reasonably safe, his judgment is conclusive of the question that the master furnished a reasonably safe place. But with this argument we cannot agree. In the opinion of the 'loader' the room may have been reasonably safe, but the fact that the roof fell soon after his inspection demonstrates that it was not reasonably safe. . . . It is a question for the jury to say from the evidence whether or not the place was reasonably safe. And in considering this question they had the right to give such weight as they deemed proper to the statement of the inspector. They may or may not believe from it that the master discharged his duty in furnishing a reasonably safe place."

The same court as late as June 1st of this year again had the same question under consideration in Huddleston's Admr. v. Straight Creek Coal & Coke Co. (Ky.), 138 Ky. 506, 128 S.W. 589, and after considering an argument very much like that made in this case, said:

"We cannot give our approval to a doctrine like this. The jury have the right to hear and consider, not only the evidence from the mouths of witnesses as to what they did and what was done, but they have also the right to hear and consider other evidence from witnesses who are qualified to testify as to the physical condition of the place and appliance before, at the time, and immediately after the accident and the jury may from the facts and circumstances thus...