Maloney v. Winston Bros. Co.

• Citation: 18 Idaho 740,111 P. 1080
• Parties: ED. MALONEY, Respondent, v. WINSTON BROS. COMPANY, Appellant
• Decision Date: 09 May 1910
• Court: United States State Supreme Court of Idaho

111 P. 1080

18 Idaho 740

ED. MALONEY, Respondent, v. WINSTON BROS. COMPANY, Appellant

Supreme Court of Idaho

May 9, 1910

INSTRUCTIONS-PERSONAL INJURY-HAZARDOUS UNDERTAKING-ASSUMPTION OF RISK-DUTY OF MASTER-DUTY TO MAKE PLACE OF WORK SAFE-PROOF OF NEGLIGENCE-SUFFICIENCY OF EVIDENCE-EXCESSIVE DAMAGES.

(Syllabus by the court.)

1. Instructions examined, considered and held not to be erroneous,

2. Where a laborer seeks and obtains employment at a hazardous and dangerous task and which must necessarily be prosecuted in a dangerous place, he thereby assumes the ordinary risks incident to the employment and attendant on the place where the work is prosecuted, but he does not thereby assume any additional burden of risk superimposed by reason of the master's neglect of the duty that rested upon him to have the place inspected and maintained in a reasonably safe condition, as a place of the kind should be maintained in which employees are to prosecute their work.

3. In the case of a hazardous work like driving a railroad tunnel through the mountain, an increased risk is assumed and an increased duty is imposed by law on both the master and servant proportionate to the dangers of the place and the risks of the employment-on the master to exercise increased care and diligence in maintaining the place in as safe a condition as the nature of the work will permit, and upon the servant to either assume or avoid patent and obvious dangers and those necessarily incident to the work and the place in which the work is being prosecuted.

4. It is the established rule of law that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not upon the grade or rank of the employee or fellow-servant to whom the negligent act is traceable.

5. In an action for personal injuries received by and on account of the negligence of the master, negligence must be shown, and this may be done by positive testimony of the commission of a wrongful act by the master or the neglect by him to discharge a positive duty, or it may be shown by proof of the conditions of the place in which the master placed the servant or the attendant circumstances surrounding the occurrence and the happening of the thing which caused the injury.

6. Where the servant is under the immediate direction of a superior employee or a vice-principal and performs each task or duty at the time and in the manner directed by his superior, and the servant has no discretion in the matter of inspecting or making safe the place in which he is to work he has a right to assume that the superior or vice-principal has examined and inspected the place in which he is set to work and has found it in a reasonably safe condition, and in such case the servant is only chargeable with the duty of taking notice of conditions as he sees them and those dangers that are patent and obvious.

7. Where the master is engaged in driving a railroad tunnel and has a large number of men engaged in drilling, blasting and shoveling away the rock and earth, it is the duty of the master to take reasonable precaution for the safety of the men, and to that end to have some person intrusted with the duty of examining and inspecting the place after shots have been fired, directing the manner and method of removing loose rock or earth from the walls and roof, and making the place reasonably safe for the men who are to work therein.

8. Where an injury has been received by the servant on account of the negligence of the master, damages should be computed and ascertained and awarded on the basis, as nearly as possible, of compensating the servant for the pain, suffering and loss he has sustained and will sustain in the future on account of the injury; and he should be placed, as nearly as it is possible to estimate, in as good a position as he was before the injury was inflicted.

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

Action by the plaintiff for damages for personal injury. Judgment for plaintiff and defendant appealed. Judgment modified and affirmed.

Modified and affirmed, with costs in favor of respondent.

Kerns &amp Ryan, for Appellant.

There is absolutely no evidence to show that anyone was negligent and that it was not one of those accidents incident to any business which cannot with reasonable prudence be foreseen. The plaintiff must make his case. He has failed to do so. ( Reino v. Montana Mineral Land Devel. Co., 38 Mont 291, 99 P. 853; Hardesty v. Largey Lumber Co., 34 Mont. 157, 86 P. 29; Holt v. Spokane R. Co., 4 Idaho 443, 40 P. 56; Birsch v. Citizens' Electric Co., 36 Mont 574, 93 P. 940.)

It is incumbent on him to show affirmatively all the elements of a right to recover, to prove all the facts which constitute or make apparent the alleged negligence of the master, and that it was the proximate cause of the injury. (Labatt, Master and Servant, sec. 832; Hamelin v. Malster, 57 Md. 287; A. T. & S. R. Co. v. Ledbetter, 34 Kan. 326, 8 P. 411; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Stearns v. Ontario Spinning Co., 184 Pa. 519, 63 Am. St. 807, 39 A. 292, 39 L. R. A. 842; 20 Am. & Eng. Ency. of Law, 87, 88; Kincaid v. O. S. L. Ry. Co., 22 Ore. 35, 29 P. 3; Alcorn v. Chicago Ry. Co., 108 Mo. 81, 18 S.W. 188; Baltimore etc. Ry. Co. v. State, 75 Md. 152, 32 Am. St. 372, 23 A. 310; Gibson v. Erie Ry. Co., 63 N.Y. 449, 20 Am. Rep. 552; Minty v. U. P. R. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409; Woelflen v. Lewiston-Clarkson, 49 Wash. 405, 95 P. 493.)

Where the place that an employee is to work is a room in a mine, or tunnel, the place is provided in the progress of the work by the employees themselves. It is made secure or otherwise by the way in which they perform their respective duties. ( Waddell v. Simoson, 112 Pa. 567, 4 A. 725; Shaw v. Mining Co., 31 Mont. 138, 77 P. 515; Cummings v. Reduction Co., 26 Mont. 434, 68 P. 852; Axtell v. Northern P. Ry. Co., 9 Idaho 392, 74 P. 1075; Zeinke v. N. P. Ry. Co., 8 Idaho 54, 66 P. 828.)

The master is not required to provide a safe place in cases in which the very work upon which the servant is engaged is of a nature to make the place where it is done temporarily insecure, but in such cases the servant assumes the increased hazard. (Gulf, C. & S. F. Ry. Co. v. Jackson, 65 F. 48, 12 C. C. A. 507; McDonald v. Buckley, 109 F. 290, 48 C. C. A. 372; Davis v. Trade Dollar Cons. Min. Co., 117 F. 122, 54 C. C. A. 636; Larsson v. McClure, 95 Wis. 533, 70 N.W. 662; Russell Creek Coal Co. v. Wills, 96 Va. 416, 31 S.E. 614; Petaja v. Aurora Iron Min. Co., 106 Mich. 463, 58 Am. St. 505, 64 N.W. 335, 66 N.W. 951, 32 L. R. A. 435; Floyd v. Sugden, 134 Mass. 563.)

"The foreman of a gang of laborers employed by a contractor is a fellow-servant of one of the gang." (Anderson v. Winston, 31 F. 528; McDonald v. Buckley, 109 F. 290, 48 C. C. A. 372; Armour v. Hahn, 111 U.S. 318, 4 S.Ct. 433, 28 L.Ed. 440; Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598, 32 N.E. 857; Beesley v. F. W. Wheeler Co., 103 Mich. 196, 61 N.W. 658, 27 L. R. A. 266; Alaska Treadwell M. Co. v. Wheelan, 168 U.S. 36, 18 S.Ct. 40, 42 L.Ed. 390; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 773; Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L.Ed. 612.)

Gray & Knight, and John H. Wourms, for Respondent.

It is the absolute duty of the master to provide a reasonably safe place in which the servant shall work, having regard to the kind of work, and the conditions under which it must necessarily be performed. (Bunker Hill & Sullivan M. & C. Co. v. Jones, 130 F. 813, 65 C. C. A. 363; Union P. Ry. Co. v. Jarvi, 53 F. 65, 3 C. C. A. 433; Western Coal Min. Co. v. Ingraham, 70 F. 219, 17 C. C. A. 71; Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 773; Mather v. Rillston, 156 U.S. 391, 15 S.Ct. 464, 39 L.Ed. 464; Rowden v. Schoenherr-Walton M. Co., 136 Mo.App. 376, 117 S.W. 695; Cinkovitch v. Thistle Coal Co. (Iowa), 121 N.W. 1036; Westerlund v. Rothschild, 53 Wash. 626, 102 P. 765; Peirce v. Kile, 80 F. 865, 26 C. C. A. 201; Trihay v. Brooklyn Lead Min. Co., 4 Utah 468, 15 Morr. Min. Rep. 535, 11 P. 612; Ross v. Shanley, 185 Ill. 390, 56 N.E. 1105.)

The master is liable for the negligence of an employee who represents him in the discharge of his personal duties to his servants, and beyond that he is liable only for his own personal negligence. (Larsen v. Le Doux, 11 Idaho 49, 81 P. 600; McKinney on Fellow-servants, sec. 23; Bunker Hill & Sullivan Min. & Con. Co. v. Jones, supra; Hough v. Texas & P. Ry. Co. , 100 U.S. 213, 25 L.Ed. 612; Ford v. R. Co., 110 Mass. 240, 14 Am. Rep. 598.)

The facts in this case show that there was nothing to indicate to the plaintiff from such inspection as he could or was permitted under the rules and practice of the tunnel to make that he was assuming any such danger as the accident showed existed. (Texas & P. Ry. Co. v. Archibald, 170 U.S. 665, 18 S.Ct. 777, 42 L.Ed. 1188; Choctaw & R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; Union P. Ry. Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766; Texas & P. Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905; Texas & P. R. Co. v. Swearingen, 196 U.S. 51, 25 S.Ct. 164, 49 L.Ed. 382; Choctaw etc. Co. v. Holloway, 191 U.S. 334, 24 S.Ct. 102, 48 L.Ed. 207; Chicago, Great Western R. Co. v. McDonough, 161 F. 657; Harvey v. Texas & P. Ry. Co., 166 F. 385; Central Coal & Coke Co. v. Williams, 173 F. 337; Island Coal Co. v. Risher, 13 Ind.App. 98, 40 N.E. 158; Diamond Block Coal Co. v. Cuthbertson, 166 Ind. 290, 76 N.E. 1060.)

A miner does not assume the risk of the caving in of the roof of a mine. (Bunker Hill etc. Co. v....