Lucey v. Stack-Gibbs Lumber Co.

• Decision Date: 12 April 1913
• Citation: 23 Idaho 628,131 P. 897
• Parties: PATRICK LUCEY, Respondent, v. STACK-GIBBS LUMBER CO., a Corporation, Appellant
• Court: Idaho Supreme Court

131 P. 897

23 Idaho 628

PATRICK LUCEY, Respondent, v. STACK-GIBBS LUMBER CO., a Corporation, Appellant

Supreme Court of Idaho

April 12, 1913

PERSONAL INJURIES - MASTER AND SERVANT-DANGEROUS PREMISES-CUSTOM-DUTY TO WARN-DELEGATION OF.

1. Plaintiff was employed by the appellant lumber company and was engaged in constructing a bridge of poles for a turnout and while so engaged was struck and injured by a tree felled by other employees. No warning was given by the choppers who felled the tree. Plaintiff was not a boss and had no control over the choppers. Held, that the negligence of the choppers to give the proper signal was not the neglect and carelessness of a fellow-servant, but was the neglect of a duty devolving upon the employer, for which it was liable.

2. It is a general rule of law that when a master is engaged in a complex and hazardous business, he must promulgate and adopt such rules and regulations for the conduct of the business and the government of his servants as will afford reasonable protection to them, and such duty is a positive obligation imposed upon the master, and he is liable for the negligent performance thereof, whether he undertakes the performance personally or delegates it to another.

3. Where the place in which the servant is required to work is inherently dangerous and signals are required by order of the master or by common custom for the protection of the employees, and are relied upon by the employees as a means of saving themselves from harm, it becomes the absolute duty of the master to give them, and the failure to do so, though the failure be the neglect of an employee, renders the master liable to a servant who is injured in consequence of such neglect.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action to recover for personal injuries caused by the falling of a tree on plaintiff. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

F. T Post and James A. Wayne, for Appellant.

The rule contended for by the respondent would make the employer an insurer as to the safety of all employees working in the woods from all accidents from the falling of trees which are being cut down by other employees. To the contrary is the rule as laid down in the text-books and almost unanimously in the decisions of the courts. (2 Labatt, Master and Servant sec. 601.)

"In the absence of statute, the duty of giving such signals may be regarded as the duty of a fellow-servant, for the neglect to perform which the master will not be liable." (4 Thompson, Commentaries on the Law of Negligence, sec. 4067; Hermann v. Port Blakely Mill Co., 71 F. 853; Martin v. Atchison, Topeka & St. Fe. R. R. Co., 166 U.S. 399, 17 S.Ct. 603, 41 L.Ed. 1051; Martin v. Chicago etc. R. R. Co., 65 F. 384; Cooper v. Milwaukee etc. Co., 23 Wis. 668; Dahlke v. Illinois Steel Co., 100 Wis. 431, 76 N.W. 362; O'Neil v. Great Northern Ry. Co., 80 Minn. 27, 82 N.W. 1086, 51 L. R. A. 532; Hussey v. Coger, 112 N.Y. 614, 8 Am. St. 787, 20 N.E. 556, 3 L. R. A. 559; Maltbie v. Belden, 167 N.Y. 307, 60 N.E. 645, 54 L. R. A. 52; Donovan v. Ferris, 128 Cal. 48, 79 Am. St. 25, 60 P. 519; Long v. Coronado Co., 96 Cal. 269, 31 P. 170; Gallagher v. McMullen, 25 A.D. 571, 49 N.Y.S. 734; Portance v. Lehigh Valley C. Co., 101 Wis. 574, 70 Am. St. 932, 77 N.W. 875; New Pittsburgh Coal & Coke Co. v. Peterson, 136 Ind. 398, 43 Am. St. 327, 35 N.E. 7; Brynes v. Brooklyn Heights Co., 36 A.D. 355, 55 N.Y.S. 269; Yeaton v. Boston & Lowell R. R., 135 Mass. 418; Texas Ry. Co. v. Campbell, (Tex. Civ. App.), 39 S.W. 1104; Luebeke v. Chicago etc. Co., 63 Wis. 91, 53 Am. Rep. 266, 23 N.W. 136; Rex v. Pullman's Palace Car Co., 2 Marv. (Del.) 337, 43 A. 246; Lundquist v. Duluth St. Ry. Co., 65 Minn. 387, 67 N.W. 1006; MacNally v. Savannah F. & W. Ry. Co., 86 Ga. 262, 12 S.E. 351; Peterson v. Chicago & N.W. Ry. Co., 67 Mich. 102, 11 Am. St. 564, 34 N.W. 260; Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 49 P. 559; Graham v. Detroit G. H. M. Ry. Co., 151 Mich. 629, 115 N.W. 993, 25 L. R. A., N. S., 326; McLaine v. Head & Doust Co., 71 N.H. 294, 93 Am. St. 522, 52 A. 545, 58 L. R. A. 462.)

John P. Gray, Therrett Towles and Frank M. McCarthy, for Respondent.

In carrying on and conducting logging and lumbering operations, large numbers of men are put to work in the woods, felling timber. The safety of those men from injury depends upon the master exercising reasonable care to warn them when trees are about to fall in the vicinity of the places where they are working. Upon the reasonable performance of that duty by the master their safety and security must depend. It is not requiring too much of the master to promulgate and enforce rules for giving warning in the vicinity of the places where the servants are engaged. (Potlatch Lumber Co. v. Anderson, 199 F. 742; Cunningham v. Adna Mill Co. (Wash.), 127 P. 850; Belleville Stone Co. v. Mooney, 61 N.J.L. 253, 39 A. 764, 39 L. R. A. 834; Ondis' Admx. v. Great A. & P. Tea Co., 82 N.J.L. 511, 81 A. 856.)

"Such employees are not to be regarded in law as fellow-servants engaged in a common employment." (Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S.W. 481, 17 L. R. A., N. S., 292; Mihelich v. Mignery, 155 Mo.App. 325, 136 S.W. 722; Inland Steel Co. v. Smith (Ind. App.), 75 N.E. 852; Gould Steel Co. v. Richards, 30 Ind.App. 348, 66 N.E. 68; Curtin v. Clear Lake Lumber Co., 47 Wash. 260, 91 P. 956; Kempfert v. Gas Traction Co. (Minn.), 139 S.W. 145; Wiggin v. N.W. Paper Co., 119 Minn. 273, 137 N.W. 1113.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover for personal injuries alleged to have been sustained by reason of the carelessness in felling a tree which struck the plaintiff and broke his leg, while he was in the employ of appellant. The cause was tried by the court with a jury and the jury returned a verdict in favor of the plaintiff in the sum of $ 2,999. Thereupon a motion for judgment was made by the appellant non obstante veredicto, which was overruled by the court and a motion for a new trial was also denied. The appeal is from the judgment and said two orders.

The appellant is a corporation engaged in logging and lumbering in the state of Idaho. It is alleged in the complaint that the respondent was employed at what was known as Camp No. 1 of the appellant company, as a laborer, blowing out stumps, and on the 23d of August, 1911, was directed to cease work at that camp and was transferred to another camp known as Camp No. 2, and directed by the appellant, together with another man, to build a bridge across a small stream; that the superintendence and control of the work of building said bridge or turnout with other work done by the appellant was under the direction of a foreman, and that said foreman was in direct charge of the work of building said bridge; that it was the duty of plaintiff as a laborer to do such work in such place and in such manner as the foreman directed; that the duties of the foreman were to do whatever was necessary to determine whether the places where the employees were working were reasonably safe, and to direct the performance of said work in such a manner as was necessary to keep the same safe; that on August 25, 1911, the plaintiff was directed to go to work upon a bridge and to construct same in the manner directed by the foreman, and while the plaintiff was engaged in said service, deeply engrossed in his work, the appellant caused a large tree, about twelve inches in diameter and about 60 feet in length, to be cut and felled, so that the same struck the plaintiff and injured him; that the tree was cut and felled by an employee of the appellant working on the hill above where plaintiff was working; that no notice or warning was given that the tree was about to be felled or was falling until it fell and struck plaintiff; that plaintiff was deeply engrossed in his work, with his back in the direction in which the appellant was cutting the tree; that the plaintiff was unaware of the fact that the tree was being cut where the same might fall on him; that it was the duty of the appellant to give the plaintiff warning of the falling of a tree in order that he might seek a place of safety and thus protect himself; that no warning whatever was given and that no notice was given the plaintiff that the tree was about to be cut; that the employee who cut the tree was working under the direction and control of the foreman; that it was carelessness and negligence on the part of appellant to allow plaintiff to become engrossed in his work and at the same time direct another man to go on the hillside above him and cut a tree and permit the same to be felled without giving plaintiff any notice or warning, so as to permit him to escape to a place of safety and avoid danger when the tree was felled; that by reason of the injuries so received the plaintiff suffered a double compound fracture of both bones of his right leg between the ankle and the knee, and was severely injured, and from which he was still suffering at the time of the trial.

The appellant answered, denying practically all of the allegations of the complaint that would make appellant liable, and plead affirmatively contributory negligence and negligence of a fellow-servant and assumption of risk.

The evidence in the case was quite brief. The plaintiff testified that he had been working in Camp No. 1 under a boss named Mullen; that on August 23, 1911, Mullen told him to go to Camp No. 2, which was under the charge of a boss named Radigan; that at Camp No. 1 he had been engaged in blowing out stumps and clearing a right of way as a common laborer at $...