Mast v. Kern

• Decision Date: 07 November 1898
• Citation: 34 Or. 247,54 P. 950
• Parties: MAST v. KERN.
• Court: Oregon Supreme Court

54 P. 950

34 Or. 247

MAST v. KERN.

Supreme Court of Oregon

November 7, 1898

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Action by W.L. Mast against Daniel Kern. This action is brought to recover damages for an injury alleged to have been sustained through defendant's negligence. At the time of the accident which caused his injury, the plaintiff was, and for some months prior thereto had been, working for the defendant in a stone quarry at Coos Bay, engaged with other employés in excavating and removing rock by blasting, under the direction and supervision of one West, who was the superintendent and manager, with power to hire and discharge employés. On the day of the accident the plaintiff and a fellow workman had drilled a hole in the rock, preparatory to putting in a blast; but, before loading it, the superintendent dropped in the hole two or three sticks of giant powder, which he caused to be exploded for the purpose of drying it out. After waiting a few minutes for any fire which the powder might leave in the hole to expire, West inquired of plaintiff whether he thought it was ready to load, and the plaintiff replied, "I don't know whether it is or not." West then said, "I guess it is all right; we will try it," and poured some powder into the hole; and, as it did not take fire, he said he thought it was safe, and directed the plaintiff and his fellow workman to put in the black powder; and while they were engaged in doing so an explosion occurred, by which plaintiff received the injury for which he brings this action. The ground of recovery alleged in the complaint is that West was negligent in not waiting a sufficient length of time for the hole to cool after the giant powder had been exploded therein, and in not ascertaining whether there was any fire remaining in the hole, before directing the plaintiff and his fellow workman to put the black powder in. The court below directed a nonsuit, and plaintiff appeals. Affirmed.

E.B. Watson, for appellant.

BEAN J. (after stating the facts).

The motion for nonsuit was, it is stated in the briefs allowed on the ground that when the plaintiff, with full knowledge of the situation, without protest or objection undertook to load the hole as directed by West, he knowingly and voluntarily assumed the risks of a premature explosion and we are not prepared to say at this time that the court was in error in so ruling. Brown v. Lumber Co., 24 Or. 315, 33 P. 557. But, however that may be, the judgment of nonsuit must be sustained for the reason that the negligence of West, if any, was, under the circumstances, the negligence of a co-servant, for which the defendant is not liable. 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 the courts differ somewhat as to who is a fellow servant, within the meaning of this rule. There are practically two lines of decisions upon the question. On the one hand it is held, adopting the superior servant criterion that when the master has given to an employé 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. This is known in the books as the "Ohio doctrine," and was adopted in effect by the supreme court of the United States in Railway Co. v. Ross, 112 U.S. 377, 5 Sup.Ct. 184; but that case has been very much modified, if not in effect practically overruled, by the subsequent case of Railroad Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914. Under this rule the liability of the master is made to depend upon the rank or grade of the person whose negligence caused the injury. On the other hand, the rule, and the one now unquestionably established and supported by the great weight of authority both in this country and in England, is that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not the grade or rank of the negligent employé. 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 employé to whom it is intrusted; but, if it is one pertaining only to the duty of an operative, the employé performing it is a fellow servant with his co-laborers, whatever his rank, for whose negligence the master is not liable. McKinney, Fel.Serv. § 43 et seq.; Bailey, Mast.Liab. 226 et seq.; Wood, Mast. & S. § 438; 24 Am.Law Rev. 175; 25 Am.Law Reg. 481; Crispin v. Babbitt, 81 N.Y. 516; McCosker v. Railroad Co., 84 N.Y. 77; ...