Larsen v. Doux

• Citation: 11 Idaho 49,81 P. 600
• Parties: LARSEN v. LE DOUX
• Decision Date: 15 May 1905
• Court: United States State Supreme Court of Idaho

81 P. 600

11 Idaho 49

LARSEN v. LE DOUX

Supreme Court of Idaho

May 15, 1905

MASTER'S LIABILITY-INJURY TO SERVANT-FALLING OF SCAFFOLD-VICE-PRINCIPAL-FELLOW-SERVANT-NEGLIGENCE.

1. The appellants were contractors engaged in the erection of what is known as the Elk's Temple, Moscow. The respondent was employed with one K. to furnish mortar and brick to the bricklayers. One B. was the manager and in immediate charge of the construction of said building for the appellants. After the brick work on the northerly side of the building was completed it was necessary to erect a scaffold across the west end of the building for the use of the bricklayers. B directed K. to erect such scaffold, and in doing so it was necessary for him to put in place two joists or cross-pieces on which to lay the floor of the scaffold. From a lot of material furnished for that purpose, he selected two pieces and one of the brick masons nailed the ends thereof in place. Thereafter B. and K. laid some boards on said scaffold and thereafter the respondent assisted K. in completing the erection thereof. B. directed K. to lap the ends of the floor across the joist, which he neglected to do. Thereafter the respondent and K. placed a considerable quantity of mortar and bricks on said scaffold and the section supported by one of said cross-pieces fell the cross-piece having broken, and in the fall the respondent was injured. Held, that if there was negligence or carelessness in placing a defective cross-piece in said scaffold, it was the negligence and carelessness of a fellow-servant and the appellants are not liable therefor.

2. If the act or omission that caused the injury was one pertaining to the duty the master owed to his servant, he is responsible for the manner of its performance without regard to the rank of the servant or employee to whom it is intrusted. But if it is one pertaining to the duty of an operative, the employee performing it is a fellow-servant with his colaborers whatever his rank, for whose neglect the master is not liable.

3. The true test in all cases by which it may be determined whether the negligent act causing the injury is chargeable to the master or is the act of a coservant is, Was the offending employee in the performance of the master's duty in reference to the particular act causing the injury, an act done in the performance of a duty that the master owed his servant? If so, his negligence is that of the master and liability follows; if not, he was a mere coservant engaged in the common employment with the injured servant without reference to his grade or rank or his right to employ or discharge men, or to his control over them. In this case the master furnished sufficient safe material for the erection of said scaffold, and B. having directed K. and the respondent to construct said scaffold, and cautioned K. to construct it safely, the appellants were not liable for the carelessness of K. in constructing the same.

(Syllabus by the court.)

APPEAL from the District Court of Latah County. Honorable Edgar C Steele, Judge.

Action to recover damages received in the fall of a defective scaffold. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to appellants.

Forney & Moore, for Appellants.

From the facts in this case it appears that the plaintiff assisted in the construction of the scaffold; had a thorough knowledge of its defects, if any; in brief, had a better knowledge than his employers; made no objection whatever to its construction and then he and his fellow-laborers began hauling brick and mortar upon it to such an extent that the scaffolding fell--not a faulty construction, but from the increased weight placed upon it by the plaintiff and his colaborers. In his work on Fellow-servants, McKinney, at page 77, says: "Where a workman is injured by falling from a scaffold negligently constructed by himself and his colaborers, the master is clearly not liable." (Allen v. Galveston etc. Ry. Co., 14 Tex. Civ. App. 344, 37 S.W. 171.) There is another principle of law which it seems to us leads to the same result. Ordinarily, the master owes his servant the duty of inspection or reasonable care in furnishing him safe and suitable means for performing his work. This rule has no reference to the safety and condition of the thing the servant is employed to repair or complete. (Carlson v. Oregon Short Line etc. Ry. Co., 21 Or. 497, 28 P. 497; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Gulf etc. Ry. Co. v. Jackson, 12 C. C. A. 507, 65 F. 48; Marsh v. Herman, 47 Minn. 537, 50 N.W. 611; Seesley v. F. W. Wheeler & Co., 103 Mich. 196, 61 N.W. 658, 27 L. R. A. 266; Hogan v. Field, 44 Hun, 72; Benzing v. Steinway, 101 N.Y. 547, 5 N.E. 449; Brick v. Rochester etc. R. R. Co., 98 N.Y. 211.) A servant is not a mere machine employed to drive a nail here, or a spike there, where directed by the master or some one representing him. Many things involving the exercise of judgment may properly be left to the servant. Hence it has been held, where the master employs competent workmen and provides suitable material for staging, and intrusts the duty of erecting the staging to the workmen, as a part of the work which they are engaged to perform, that he is not liable to one of the workmen for injuries resulting to one of them from the falling of the staging. The negligence in such cases resolves itself into negligence of a fellow-servant; and the principle has been applied under a variety of circumstances. (Kelley v. Norcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Peschel v. Ry. Co., 52 Wis. 338, 21 N.W. 269; Davis v. Trade Dollar Min. Co., 117 F. 122, 54 C. C. A. 636. In the case at bar, evidently overloading the scaffold by brick and mortar caused it to break. The defendants were not present and were not required to be present to inform the plaintiff and his fellow-workers as to the excessive weight placed upon the scaffold. This was a risk the plaintiff assumed. It was his own act and that of his fellow-workman in overloading the scaffold and causing it to break. (Richmond Locomotive Works v. Ramsey, 131 F. 200; McDonald v. Buckley, 109 F. 290, 48 C. C. A. 372.)

W. W. Griffith and Stewart S. Denning, for Respondent.

It is familiar law that a servant assumes, as one of the incidents of his employment, all risks of injury from the negligence of a fellow-servant, because the master cannot, by the exercise of the utmost care and caution, guard against such negligence. But there are practically two lines of decisions in this country as to who is a fellow-servant within the rule. On the one hand we have what is known as the Ohio doctrine, which adopts the superior servant criterion; that is, it is held that when the master has given to an employee supervisory control and management of his business, or some particular department thereof, such person, while so acting stands in the place of the master, as to those under his direction and supervision, and for his negligence the master is liable. The courts of Ohio, Washington, Missouri, Maine, Michigan, Kentucky and other states recognize this rule to a greater or less extent. On the other hand, we have the rule obtaining in a large number of states, that the master's liability depends upon the character of the act in the performance of which the injury arises, and not the grade or rank of the negligent employee. If the act is one pertaining to the duty the master owes to his servant, he is responsible for the manner of its performance, without regard to the rank of the servant or employee to whom it is intrusted; but if it is one pertaining only to the duty of an operative, the employee performing it is a fellow-servant with his colaborers, whatever his rank, for whose negligence the master is not liable. (Mast v. Kern, 34 Or. 247, 75 Am. St. Rep. 580, 54 P. 950; Allen v. Bell, 32 Mont. 69, 79 P. 582.) Respondent contends that, whichever rule may be adopted or followed by this court, Burke was a vice-principal and not a fellow-servant with respondent. The agent, to whom the control of the work is given by the master, together with the power of hiring and discharging employees, and of superintending the work, whose orders the servants are bound to obey, stands in the place of the master, and is not a fellow-servant within the meaning of the rule as applied to laborers and servants. (Brothers v. Cartier, 52 Mo. 372, 14 Am. Rep. 424; Zintek v. Stimson Mill Co., 6 Wash. 178, 32 P. 997, 33 P. 1055, 9 Wash. 395, 37 P. 340; McDonough v. Great Northern Ry. Co., 15 Wash. 244, 46 P. 334; Brabbits v. Chicago etc. Ry. Co., 38 Wis. 289; Baltimore etc. R. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 921, 37 L.Ed. 772; Allend v. Spokane Falls etc. Ry. Co., 21 Wash. 324, 58 P. 244; Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 P. 273; Cunningham v. Union P. Ry. Co., 4 Utah 206, 7 P. 795; Beeson v. Green Mountain etc. Min. Co., 57 Cal. 20; Consolidated Coal Co. v. Wombacher, 134 Ill. 57, 24 N.E. 627; Mullan v. Philadelphia etc. Steamship Co., 78 Pa. 25, 21 Am. Rep. 2; Malone v. Hathaway, 64 N.Y. 5, 21 Am. Rep. 573.) The master should not direct the servant to work in a place which he knows, or, by the exercise of reasonable care and diligence might know, to be dangerous, within the rule. (Bailey on Masters' Liability for Injuries to Servants, 36; Consolidated Ice Co. v. Kiefer, 26 Ill.App. 466; Johnson v. First Nat. Bank, 79 Wis. 414, 24 Am. St. Rep. 722, 48 N.W. 712; Meier v. Morgan, 82 Wis. 289, 33 Am. St. Rep. 39, 52 N.W. 174: Cook v. St. Paul etc. Ry. Co., 34 Minn. 46, 24 N.W. 311; Noyes v. Smith, 28 Vt. 59, 65 Am. Dec. 222; Hutchinson v. Ry. Co., 5 Ex. 343; Gibson v. Railway Co., 46 Mo. 163, 2 Am. Rep. 497; ...