Galvin v. Pierce

Decision Date07 April 1903
Citation54 A. 1014,72 N.H. 79
PartiesGALVIN v. PIERCE.
CourtNew Hampshire Supreme Court

Transferred from Superior Court; Pike, Judge.

Action by Jeremiah Galvin against John Pierce. From an order directing a nonsuit at the close of plaintiff's case, plaintiff brings exceptions. Exceptions overruled.

The plaintiff's evidence tended to prove the following facts: The plaintiff, a man 29 years of age, was in the service of the defendant at the time of the injury complained of, and had been employed in the same labor between seven and eight months. His work was excavating earth and stones. His duty was to dig around rocks that were to be taken out, and attach chains thereto, so that they could be hoisted by a steam crane to a car upon which they were removed from the place. The defendant was a contractor, and one Rombeau had charge of the work as boss, which included the control of the men and the operation of the crane. He also had charge of the tools and of everything connected with the work, and had the general direction of the men as to the places of their work. March 14, 1901, the plaintiff, having dug the earth from about a stone, said to Rombeau that the chain he had was too large and awkward, and that he could not get it around the stone very well, and asked Rombeau to get him a smaller and handier chain with which to do the work. Rombeau attempted to find such a chain, but was unable to do so, and told the plaintiff he must get along with the one he had. The plaintiff then adjusted the chain. The stone being a long one and the chain a little slack, the load began to swing when it was hoisted by the crane. Rombeau gave instructions to the engineer to lower the stone in order to stop the swinging. The plaintiff then told Rombeau that the chain was not right on the stone, and that it was not safe, and asked Rombeau to wait until he fixed it. The plaintiff took hold of the chain, but Rombeau remarked to the engineer: "Go ahead. The chain is all right." The engineer raised the stone, and, in so doing, the chain caught the plaintiff's hand and injured it.

Simon P. Emery and Ernest L. Guptill, for plaintiff.

John Kivel and George T. Hughes, for defendant.

PARSONS, C. J. The plaintiffs duty was "to dig around rocks that were to be taken out, and to attach chains thereto, so that they could be hoisted by a steam crane." Rombeau had charge of the defendant's work as boss, "which included * * * the operation of the crane." At the time of the accident the plaintiff's duty had been performed. He had attached the chain. Rombeau was in the execution of his—the operation of the crane. The stone had been pulled out, and lowered to stop its swinging. The next operation in Rombeau's work was the raising of the stone. "The plaintiff then told Rombeau that the chain was not right on the stone—that it was not safe—and asked Rombeau to wait until he fixed it. The plaintiff took hold of the chain, but Rombeau immediately remarked to the engineer: 'Go ahead. The chain is all right.' The engineer hoisted on the stone, and the chain caught the plaintiff's hand and injured it."

If the defendant is liable for Rombeau's negligent operation of the crane, the plaintiff cannot recover without establishing Rombeau's negligence as the cause of the injury, and his own freedom from fault. Whether the case contains evidence upon which these propositions could reasonably be found in favor of the plaintiff may be open to doubt. But assuming that there was competent evidence for the jury upon these issues, a verdict might be found against Rombeau, or against the defendant if the defendant had personally performed the acts charged as negligence in Rombeau. The right of action in such case would not he affected by the fact that the plaintiff was a workman under Rombeau, or an employs of the defendant, but the action would be based upon the general duty resting upon every individual in the conduct of his lawful business to abstain from the careless injury of others. Nashua Iron & Steel Co. v! Railroad, 62 N. H. 159, 161. If the plaintiff were a stranger—an innocent third party injured by the negligent operation of the machine—it would be immaterial whether the actual operation was in the charge of the defendant in person, or in that of his employs or agent. The rule respondeat superior would apply. As to third persons', the act of Rombeau would be the act of the defendant. "Qui facit per alium, facit per se." But it appears from the plaintiff's case that both he and Rombeau were the defendant's servants. The plaintiff's action, therefore, is not founded upon the maxim respondeat superior, but upon an alleged breach of duty owed by the defendant, as master, to the plaintiff as his servant. The mutual rights and duties of the master and servant are usually regarded as flowing from the contract for service. Whether the reciprocal rights and duties of the relationship depend upon the stipulations of a contract, or upon rules of law adopted as matter of public policy upon grounds of reasonableness, is not material. The general principles governing the relationship are well settled. The master is bound to reasonable care to provide the servant with suitable instrumentalities for the work. This includes place, machinery, associates in the work, and, where necessary, suitable rules and regulations for its conduct. McLaine v. Head & Dowst Co., 71 N. H. 294, 52 Atl. 545, 58 L. R. A. 462.

Being guilty of no want of care in furnishing or maintaining these instrumentalities, the master is not liable if injury otherwise results to the servant. If to render the place safe it is reasonable a mechanical notice of intermittently recurring danger to the employs should be provided, it is the duty of the master to exercise care to provide and maintain some device for that purpose, as the bridge guard upon railways. If such care has been exercised, the master is not liable if for some other cause in a particular case the device fails to effect its purpose. Hardy v. Railroad, 68 N. H. 523, 41 Atl. 179. So if for the servant's safety it is reasonable that some person should be provided to give a warning from time to time, the master, having exercised care to provide a suitable person, is not liable if in a particular instance the warning is not given. McLaine v. Head & Dowst Co., supra. In short, the master is not an insurer of the servant's safety. One obligation of the master is to exercise care to provide reasonably competent persons to engage in the work. If tins duty has been performed, he is not liable if one servant is injured by the negligence of another servant engaged in the common work. Either because such a rule has been considered reasonable as governing the relationship of the parties, or because, in the absence of an express contract, the parties must be understood to have made a reasonable one, including the reasonable stipulation that the servant will assume the risk of injury from the negligence of his fellows engaged in the common work, such assumption of risk is now a settled rule of the law of master and servant. As the master, as the law is now settled, is not liable for an injury resulting to one servant from the negligence of a fellow servant in the course of their common employment, the question now arising for controversy in particular cases is whether the negligent person is to be regarded as a fellow servant of the one injured. In this jurisdiction "the responsibility of the master is determined by the nature of the act in question, and not by a difference in rank or grade of service between particular servants." McLaine v. Head & Dowst Co., 71 N. H. 294, 295, 52 Atl. 545, 58 L. R. A. 462. Accordingly it has been held that the master is liable where the negligent act in question was one which it was his duty to perform, although in fact performed by inferior servants (Jaques v. Company, 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824; Story v. Railroad, 70 N. H. 364, 368, 48 Atl. 288; Olney v. Railroad, 71 N. H. 427, 430, 52 Atl. 1097), while in McLaine v. Head & Dowst Co., supra, the master was held not liable for the negligent performance of a duty properly that of a servant, although the negligence in fact was the negligence of the foreman in charge of the work.

At the time of the injury, Rombeau was directing the operation of the crane. The operation of the crane was a part of his employment. The sole question presented by this branch of the case, therefore, is whether the operation of the crane was work which might be committed to a servant, or whether its safe operation was a nondelegable duty of the master, owed by him to the plaintiff, of which he could not divest himself by employing another to perform it for him. There is no claim of any defect in the machine itself, or of incompetency in the engineer or Rombeau. The claim is as to manner of operation by competent persons of a suitable machine, used for the purpose for which it was designed. It is elementary that the master's duty does not extend to the operation of suitable machinery furnished by him to his servants. Founder v. Company, 70 N. H. 629, 44 Atl. 104. "in working with a derrick, the foreman and his assistants are fellow servants, and the master is not responsible to any one of them for the negligence of any other in the use of the materials and implements which the master has supplied." McKinnon v. Norcross, 148 Mass. 533, 537, 20 N. E. 183, 3 L. R. A. 320. In this case the loading of the stone into the car by means of the derrick was the common employment in which the parties were engaged. If Rombeau had himself handled the levers of the engine, it probably would not be suggested that the parties were not fellow-servants. But it is claimed that because Rombeau did not himself control the valves of the engine, but orally directed the engineer when to raise and lower by the crane, such directions constituted a part cf the master's duty, because they...

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