Longpre v. Big Blackfoot Milling Co.
| Decision Date | 11 January 1909 |
| Citation | 99 P. 131,38 Mont. 99 |
| Parties | LONGPRE v. BIG BLACKFOOT MILLING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; F. C. Webster, Judge.
Action by Philip Longpre against the Big Blackfoot Milling Company. From a judgment for plaintiff, defendant appeals. Reversed and new trial ordered.
Marshall & Stiff, for appellant.
Hall & Patterson, for respondent.
The plaintiff was in the employ of defendant in its logging camp as a common laborer. He was required in the course of his work to assist in handling and moving logs to get them in readiness for transportation to defendant's mill. For this purpose he and his co-employés used cant hooks furnished by defendant. It frequently happened that the wooden stocks or levers of these implements would be broken, and it became necessary to have them replaced by new ones. The new stocks were also furnished by the defendant, and the fitting was done at the blacksmithshop of defendant, usually by the blacksmith's helper, who was also a "woodworker." The defendant kept on hand in its warehouse a supply of these stocks in unbroken bundles or crates, just as they were received from the manufacturer. From time to time, as necessity required, the blacksmith or his helper would obtain the key to the warehouse from defendant's manager or purchasing agent and would take out a crate for use. On or about October 18, 1905, the plaintiff left the cant hook used by him at the shop to be fitted with a new stock. On going to work on the following morning, the implement was returned to him by the helper, the latter having in the meantime fitted it with a new stock. During the afternoon of the same day, while plaintiff was using it to move a log along a skidway to logging trucks, the stock broke, precipitating him onto the skidway, with the result that he had his leg broken below the knee, and was otherwise bruised and hurt. Hence this action for damages. The ground of recovery alleged in the complaint is that the cant hook furnished to plaintiff was defective, in that the new stock with which it had been fitted was unsound insufficient, and unsafe; that of this fact the defendant had knowledge, or, by the exercise of ordinary care, should have had knowledge; that the condition of the cant hook was not known to the plaintiff; and that, therefore, the defendant through its negligence in this behalf, failed to use ordinary care to furnish the plaintiff a reasonably safe appliance with which to do his work. The answer denies all the allegations contained in the complaint, except the corporate capacity of the defendant, and that the plaintiff was in its employ as alleged. It is then alleged that, if the plaintiff received the injury complained of, it was the result of his own contributory negligence. Upon this allegation there was issue by reply. The trial resulted in a verdict for plaintiff for $800. From the judgment entered thereon, and from an order denying it a new trial, the defendant has appealed. It makes the contention that the evidence is insufficient to justify the verdict, and that the court erred to its prejudice in its rulings upon questions of evidence and in instructing the jury.
It is insisted that the evidence shows conclusively that the defect in the stock of the cant hook was open and obvious to any person making reasonable use of his senses, and that, for this reason, the verdict of the jury should have been in favor of the defendant, because there was a clear assumption of risk of any danger resulting from its use by the plaintiff. It is sufficient answer to this contention to say that this issue was nowhere made in the pleadings. According to the current of authority, the defense of assumption of risk is affirmative in character, and must be pleaded specially before it can be availed of by the defendant. Coulter v. Union Laundry Co., 34 Mont. 590, 87 P. 973; Nord v. Boston & Mont. Con. C. & S. Min. Co., 33 Mont. 464, 84 P. 1116, 89 P. 647; 1 Thompson on Negligence, § 368; 6 Thompson on Negligence, § 7625; 20 Cyc. 133. A like contention is made that the evidence conclusively shows that the injury was the result of the negligence of the helper, a fellow servant. This defense is of the same nature as that of assumption of risk. It is based upon the principle that one entering upon the service of another assumes the ordinary risks of the employment, among which is included the risk of injuries caused by the negligence of fellow servants. Goodwell v. Montana Central Ry. Co., 18 Mont. 293, 45 P. 210; Mielke v. Chicago, etc., Ry. Co., 103 Wis. 1, 79 N.W. 22, 74 Am. St. Rep. 834; Baltimore & Ohio R. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772. It must logically follow, then, that in those jurisdictions, as in Montana, where the rule has been adopted that the defenses of contributory negligence and assumption of risk must be availed of, if at all, by special allegation, the defendant must in like manner avail himself of the defense that the negligence charged was that of a fellow servant. Duff v. Williamette Steel Works, 45 Or. 479, 78 P. 363, 668; East Tennessee & P. Ry. Co. v. Collins, 85 Tenn. 227, 1 S.W. 883; Laying v. Mt. Shasta Mineral Spring Co., 135 Cal. 141, 67 P. 48; Ell v. Northern P. Ry. Co., 1 N. D. 336, 48 N.W. 222, 12 L. R. A. 97, 26 Am. St. Rep. 621; Norfolk, etc., R. R. Co. v. Hauchins, 95 Va. 398, 28 S.E. 578, 46 L. R. A. 359, 64 Am. St. Rep. 791. The general rule applicable to the defense of contributory negligence, as above stated, is subject to the limitation that, if the facts alleged in the complaint show that the servant is at fault, the pleading is open to objection by demurrer. So, also, if the facts proven by plaintiff at the trial raise a presumption of contributory negligence on his part, he may be nonsuited; and this whether the defense is pleaded or not. Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 P. 940, and cases cited. By analogy, the rule requiring assumption of risk and negligence of a fellow servant to be alleged specially is subject to the same limitation.
Without reference to the question as to how the issue of contributory negligence must be presented, to say that negligence of a fellow servant may be proved as a defense under defendant's denials, while the assumption of the risk of other dangers must be pleaded specially as new matter, is to make an illogical and unwarranted exception in the application of the general principle that the servant upon entering the particular employment assumes all the ordinary risks incident to it. This question of pleading has never been definitely settled in this jurisdiction. In many cases, of which Goodwell v. Montana Central Ry. Co., supra, is an example, the defense has been invoked and considered, though no issue on the subject was made in the pleadings. In none of these cases, however, was the attention of the court directed to this condition of the pleadings; all of them having been submitted to this court upon the theory upon which the trial was had in the court below. No case has been called to our attention in which the subject was given attention. It was referred to in State ex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37, 79 P. 546, but this court refused to decide it because it was not pertinent to the matter involved. A consideration of it is pertinent to this case, because of the contention of counsel for plaintiff that, though the trial court submitted instructions authorizing the jury to find upon the issue, it was not presented by the pleadings, and therefore that the contention of defendant with reference to it cannot avail it in this court. While we think the contention of counsel for plaintiff is correct in the abstract, yet for the reason that the district court, without protest from counsel, adopted the theory that the issue was properly presented by the denials in the answer, it is proper to consider the matter so far as it presents the question of pleading. Since, however, the judgment and order must be reversed for error in the instructions, we shall not consider the contention of defendant further than to say that it was a question for the jury to determine, upon the whole of the evidence, whether it discharged its duty to plaintiff in furnishing a suitable appliance. If it did, of course, it cannot be held liable for any negligence of which the blacksmith's helper was guilty in failing to notify the plaintiff of the alleged defective condition of the cant hook stock.
The same disposition must also be made of the contention that the evidence shows conclusively that the plaintiff was guilty of contributory negligence. There was evidence tending to show that the plaintiff in attempting to move the log upon which he was working subjected his cant hook to unusual and unnecessary strain, and that the breaking would not have occurred but for his negligence in this regard. Upon this point the evidence is conflicting, and was properly submitted to the jury.
Some contention is made, also, that, since the evidence shows that the defendant purchased its supply of stocks from a reputable manufacturer and as of first-class material, the presumption that it had fully performed its duty in respect of furnishing the plaintiff with a suitable appliance must obtain, and that a new trial should have been granted on that ground. As pointed out by Mr. Labatt in his work on Master and Servant (volume 1, § 153), it is the general rule that, if an appliance of an approved pattern has been obtained from a reputable maker, this fact is prima facie evidence that the defendant was not negligent in requiring his employé to use it. Some cases, as appears from the citations in the notes to this work, go so far as to hold this fact conclusive,...
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