Engen v. Rambler Copper and Platium Company
| Decision Date | 15 March 1912 |
| Docket Number | 667 |
| Citation | 20 Wyo. 95,121 P. 867 |
| Parties | ENGEN v. RAMBLER COPPER AND PLATIUM COMPANY |
| Court | Wyoming Supreme Court |
Rehearing Denied May 6, 1912, Reported at: 20 Wyo. 95 at 137.
ERROR to the District Court, Albany County; HON. CHARLES E CARPENTER, Judge.
Action by Erling J. Engen against the Rambler Copper and Platinum Company, a corporation, for damages for personal injuries received while employed in the defendant's mine. A verdict was directed in favor of the defendant, and judgment was rendered thereon. The plaintiff prosecuted error. The material facts are stated in the opinion.
Judgment reversed and cause remanded.
M. C Brown and C. P. Arnold, for plaintiff in error.
The motion of defendant for an instructed verdict in its favor was based upon the theory that the proximate cause of the injuries received by the plaintiff was the negligence of an alleged incompetent fellow servant of the plaintiff, and that plaintiff's evidence fails to show that said fellow servant was incompetent, or that the defendant knew of any incompetency of such servant or that there was any defect in the machinery. It is here contended on behalf of the plaintiff that there was sufficient evidence to be submitted to the jury concerning the lack of care exercised by the defendant in the selection of the hoistman who allowed the cage containing the plaintiff and other workmen to drop down the shaft of the mine.
The plaintiff claimed that the company was negligent in that it had not provided proper appliances to lower its workmen down the shaft, that the accident was caused by machinery which had been improperly installed and carelessly maintained. The court refused to allow the plaintiff to show what the condition of the machinery was at any time prior to the date of the accident or after that time and confined the proof as to such condition to the day of the accident. This was error. (Shea v. Pac. Power Co., (Cal.) 79 P. 373; 2 Ency Ev. 924.) The court erroneously held that the hoistman who was entrusted with the machinery and the responsibility of keeping it in repair, and who allowed a leaking valve to drop water upon the brake so that ice was formed thereon, and allowed the plaintiff and other workmen to step on the cage and drop down the shaft was a fellow servant of the plaintiff. They were not engaged in a common employment. The work of one lay above the ground, that of the other underground. It was the employer's duty to exercise a reasonable degree of care in lowering the plaintiff to his place of work. It was his business and duty to know that there was a leaking valve in the machinery. The evidence shows that he did know it. If he selected one to inspect the machinery and keep it in repair the carelessness of the one so selected was the employer's carelessness. The employer was liable for failure to either inspect or to provide for inspection. This question of primary obligation of the employer does not depend upon the grade of the servant selected to perform, but by the act performed. The plaintiff had nothing to do with selecting the method of going to his place of work. The machinery provided by the company for that purpose was not under his control.
The duty which devolved upon the defendant to furnish the plaintiff with a safe place to work could not be delegated so as to relieve it from liability on the ground that the negligence was the act of a fellow servant. (Kankola v. Mining Co., (Mich.) 124 N.W. 596; Baldwin on Personal Injuries (2nd Ed.) 386.) The rule is illustrated in the case of platforms, scaffolds, runways and the like, and it is held that where the appliance is furnished by the employer as a completed instrumentality for the use of the employes who are to work thereon, the fellow servant rule does not apply. (Lumber Co. v. Ligas, 172 Ill. 315, 50 N.E. 225, 64 Am. St. 38; 26 Cyc. 1332, 1333.) The cases which hold that if the master exercises due care in selecting a competent servant to inspect and repair such servant is a mere fellow servant while in the performance of that duty are opposed to the clear weight of authority. The master's duty to furnish reasonably safe machinery and appliances is a continuing one requiring him to provide for the inspection and repair thereof. The mere fact that it would have been safer for workmen to use ladders instead of the hoist by reason of a defect not apparent to the eye does not make them negligent as a matter of law in using the hoist. (Boyle v. Columbian F. Co., 182 Mass. 93, 64 N.E. 726; Spring Valley Coal Co. v. Buzis, 115 Ill.App. 196, 72 N.E. 1060; Sullivan v. Foundry Co., (Mass.) 93 N.E. 576.) Where an elevator is customarily used by persons accompanying freight, they do not assume the dangers arising from the negligence of the owner. (Orcolt v. Bldg. Co., 201 Mo. 424, 99 S.W. 1062.) An employer controlling the operation of an elevator used by employes is required to exercise great care and caution, both in construction and operation, so as to render it as free from danger as careful foresight and reason may reasonably dictate. (16 Cyc. 1117; Wise v. Ackerman, 76 Md. 375, 25 A. 424; Frolich v. Cranker, 11 O. C. C. 592; McDonough v. Lanpher, 55 Minn. 501, 27 N.W. 152, 43 Am. St. 541.) It is the master's duty to exercise ordinary and reasonable care and diligence to discover and correct any deficiency that may arise in an elevator from use or the lapse of time. (Wilson v. Wooden Ware Co., 116 N.W. 198.) A servant does not assume a risk unless he knows it, or the circumstances are such that in the exercise of ordinary care he ought to know it. (Gierczac v. N.W. Fuel Co., 142 Wis. 207.) From the mere fall of a timber constituting part of a building or structure, if in a place in which employes are to work, there arises a reasonable inference that the owner, the employer, has failed in his duty either to make it safe, or to exercise reasonable care to keep it safe. (Lepsky v. Coal Co., 136 Wis. 307.) Where heavy timbers are being handled in the winter season, the fact that they are so exposed as to be covered with ice and snow, and when handled might slip and injure the servant, should be reasonably anticipated by the master or his foreman in charge. (Harsen v. R. Co., 139 Wis. 186.) An agent entrusted with maintaining safe machinery is not a fellow servant of other employes. (10 Ency. L. 958; Corcoran v. Holbrook, 59 N.Y. 517.)
In the case at bar it appears that the pipes around the hoist were so carelessly arranged that a valve was above the brake, and water from the valve would fall upon the brake. The night before the accident was cold. The valve leaked which resulted in ice upon the brake. It was clearly error under these circumstances to hold that the fellow servant doctrine applied. If a reasonable rule had been adopted for testing the machinery of the hoist and cage before the men went to work, the accident could not have happened. A rule for so testing the machinery and cage would have been proper and reasonable. This is disclosed by the evidence. No such rule was adopted, and on this ground alone it was error to give the peremptory instruction. (Johnson v. Coal Co., 28 Utah 46, 76 P. 1089; Barrows on Neg., sec. 40.) Failure to adopt such reasonable rule was negligence on the part of the employer. (Wood on Master's Liability, sec. 403; Eastwood v. Min. Co., 86 Hun, 91; Mather v. Rillston, 156 U.S. 391.) Whether such a rule ought to have been adopted was a question of fact for the jury. (2 Brickwood's Sackett on Inst. 296.) Such duty could not be delegated. (26 Cyc. 1340.) The verdict having been directed the appellant is entitled not only to the most favorable inferences from the evidence, but all the disputed facts are to be considered as established in his favor. (Koehler v. N. Y. Steam Co., (N. Y.) 75 N.E. 538.) A directed verdict is erroneous when a material question of fact arises upon the evidence for the jury to determine. (Riner v. Ins. Co. , 9 Wyo. 81; Kahn v. Ins. Co., 4 Wyo. 419; Boswell v. Bank, 16 Wyo. 202.)
H. V. S. Groesbeck, for defendant in error.
No reply was filed to the affirmative defenses which were retained in the answer, and therefore every allegation of such new matter in the answer must be taken as true. It is only after a contest on the merits, as if new matter were denied, that the want of reply will be waived. No presumption arises of a trial as if a reply was filed unless there is something in the record from which a waiver can be inferred. (1 Bates Pl. & Pr. 398; Ames v. Parrott, 61 Neb. 847.)
However the affirmative defenses were established by the evidence. The plaintiff did not make out the semblance of a case. There is nothing in the evidence to show that the hoistman was incompetent, or that the defendant knew or had the slightest knowledge that he was incompetent, hence the plaintiff cannot recover on the ground of the incompetency of the hoistman. The occasional negligence of a fellow servant is one of the ordinary risks assumed by the contract of employment. (Hannaman v. Bridge Co., 127 Wis. 550, 106 N.W. 1081.) The master would not be liable for the incompetency of the...
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Engen v. Rambler Copper and Platinum Company
...COPPER AND PLATINUM COMPANY No. 667Supreme Court of WyomingMay 6, 1912 20 Wyo. 95 at 137. Original Opinion of March 15, 1912, Reported at: 20 Wyo. 95. Rehearing H. V. S. Groesbeck, for defendant in error. (On petition for rehearing.) The case was tried below as if there had been no reply. C......