New Omaha Thomson-Houston Electric Light Company v. Baldwin
| Decision Date | 19 June 1901 |
| Docket Number | 9,632 |
| Citation | 87 N.W. 27,62 Neb. 180 |
| Parties | NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY v. CHARLES BALDWIN |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Tried below before SLABAUGH, J. Affirmed.
AFFIRMED.
Charles Offutt and W. W. Morsman, for plaintiff in error.
Acheson & Adams and E. H. Scott, contra.
HASTINGS C. DAY and KIRKPATRICK, CC., concur.
As a large part of the discussion in this case will relate to instructions given and refused in which the plaintiff in error is called defendant and defendant in error is called plaintiff, the parties will be designated in the same manner here as at the trial below.
It appears that the plaintiff, Baldwin, in September, 1896, was employed by the defendant electric light company as a "lineman"; that he worked under the immediate supervision of a foreman, one James Brinkman, and that he was directed by such foreman on the morning of September 9, 1896 to remove the arc lamps on Sixteenth street, in Omaha, in connection with another workman, who is described as a "groundman." Plaintiff's duty was to ascend an extension ladder placed against the sustaining wire of the lamp, taking with him a rope, put the latter over the sustaining wire, attach it to the lamp, and the "groundman" let it down by paying out the rope. They had reached the point on Sixteenth street opposite the alley between Harney and Howard streets when the foreman, Brinkman, arrived, ordering the other workman to another service, and himself engaged in assisting plaintiff in the removal of the lamp. There is some discrepancy in the testimony as to the precise occurrence, plaintiff's evidence indicating that Brinkman assisted in bringing up the ladder and adjusting it for the removal of this last lamp, and Brinkman declaring that he came up after the ladder was adjusted and while plaintiff was in the act of loosening the lamp from the sustaining wire. Each statement is to some extent corroborated. Plaintiff's evidence is to the effect that he objected to the shortness of the ladder and asked that it be extended further, which could have been easily done, and was told by the foreman that it was high enough and directed by him to ascend; that he went up, carrying a rope, passed the rope over the sustaining wire to which the lamp hung, tied it to the lamp, loosened the lamp from its fastening and the foreman, Brinkman, standing below and holding the rope, let it down; that, when it reached the ground, Brinkman untied the rope, but neglected to keep his hold upon it, and by the taking off of the lamp's weight the wire to which it had hung was allowed to spring up past the end of the ladder, and plaintiff and the ladder were precipitated to the pavement, with resulting injuries to plaintiff. The "groundman" had been instructed by this very foreman to keep hold of both ends of the rope till the "lineman" reached the ground, to avoid exactly this danger. The negligence asserted is that Brinkman, by his refusal to extend the ladder and directing plaintiff to mount it, was negligent, and in untying the rope and leaving the end loose was again negligent, and that such negligence was the immediate cause of the injury. It is conceded that the evidence shows Brinkman to have been foreman. It was conceded on the argument that there is evidence of negligence on his part sufficient to uphold the verdict, if he is to be deemed throughout the transaction a vice-principal and responsibility for all his acts imputed to his employer. It is contended on the part of defendant that, while Brinkman in his general employment may have had some of the duties of a vice-principal, yet, so far as his connection with this injury is concerned, he was acting simply as a fellow servant, and for any negligence committed in that capacity defendant is not liable because plaintiff had assumed all such risks. The trial court, however, adopted the view, and so expressly instructed the jury, that Brinkman, being foreman and intrusted with the control and management of the work, in which plaintiff was employed, was so far identified with the defendant employer that his negligence was defendant's negligence. The giving of this instruction is the chief error complained of; the defendant asserting that it incorrectly states the law, because Brinkman, in his connection with this accident, was acting as a fellow workman, and because the question of whether or not he was a fellow servant is, at all events, not purely a question of law, but a mixed one of law and fact, and should have been submitted to the jury, as was specifically requested by defendant at the trial. The case seems to turn upon the question whether the court's view that Brinkman was a vice-principal throughout, and the sweeping instruction to that effect, can be sustained. In Union Pacific R. Co. v. Doyle, 50 Neb. 555, 70 N.W. 43, this is said to be not always a question of law, nor always a question of fact, but generally a mixed one, and, ordinarily, no set rule can be laid down. In this present case, however, there seems to have been no dispute in the testimony as to Brinkman's duties and authority. The plaintiff seems to have been contented to show that Brinkman was foreman, exercising general control and supervision over the work for which plaintiff was employed as lineman. Defendant admits he was foreman, and shows clearly by its evidence that he had authority to "superintend, direct and control" the work. It appears that he employed and discharged men, but usually on consultation with the manager. No statement of either party as to what his powers and duties were seems to be contradicted even inferentially by the other. Under such circumstances, it seems clear that it was the duty of the court to say whether the evidence made of Brinkman a vice-principal or a mere fellow servant. This responsibility the court took, and declared in the eighth instruction that he was not a fellow servant, and that defendant was chargeable with any negligence of his. Was this error?
Counsel say that to review all the cases on this question would be a useless and almost superhuman task. We shall not attempt it any more than they have. Judge Dillon, in his widely influential article in 24 American Law Review, 175, says that a commanding position and a telescope, and not a microscope, are what is needed to reach a correct rule in this matter. For our part, we would gladly use both, if they would lead to our better enlightenment. We think, however, that where the courts are widely disagreeing and the same courts changing views from time to time and legislatures frequently altering the rule, the safe course for us is to learn what our state has done and follow it if we can.
An examination of our own cases seems to justify the trial court. There are widely different views as to what renders an employee such a vice-principal as to take his acts out of the rule that an employee assumes the risk from negligence of his co-employees. The English cases seem to hold that there is practically no such doctrine of vice-principalship; that there are absolute duties resting upon the master whose non-performance, either by himself or by some one else, will render him liable. They are, apparently, a duty of providing reasonably safe materials and appliances, which is a continuing duty involving reasonably frequent inspections; the duty of providing a reasonably safe place to work and the duty of giving, or providing for, reasonable instructions to inexperienced employees placed in dangerous positions. These duties being discharged, any injury that arises in operation of the work out of negligence of employees imposes no liability upon the master. The English rule has been adopted in many of the states with the proviso that, where the performance of any of these absolute duties is delegated to third parties, those parties become, as to these duties, vice-principals, and their negligence in respect to such duties is the negligence of the principal. Of this view of the principal's liability the courts of Massachusetts have been strong exponents, manifestly under the influence of Chief Justice Shaw, in Farwell v. Boston & W. R. Corp., 4 Met. [Mass.] 49, and the English decisions. The courts of Ohio, however, early adopted a different view, deriving the liability for the acts of a vice-principal, not from the fact of absolute duties devolving upon him, but from the fact that he was given authority and control, and must be held in his actions to immediately represent the employer, and his negligence to be imputed to his principal. Little Miami R. Co. v. Stevens, 20 Ohio 415; Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St. 201; Whaalan v. Mad River R. & L. E. Co., 8 Ohio St. 249; Berea Stone Co. v. Kraft, 31 Ohio St. 287. This doctrine was, in the case of Chicago, St. P., M. & O. R. Co. v. Lundstrum, 16 Neb. 254, 20 N.W. 198, expressly adopted in this state. In that case the railroad company was held liable for the negligence of one Carnes, the conductor of a construction train, in sending his men into a cut to clear away snow without maintaining a suitable watch, or giving any signal of an approaching train. For his negligence in that respect resulting in injury to plaintiff's intestate, the railroad company was held liable. This holding has been uniformly adhered to.
In Burlington & M. R. R. Co. v. Crockett, 19 Neb. 138, 26 N.W. 921, Crockett had been ordered by the foreman in charge of a wrecking train to clear the dirt away around a car which had been derailed by a fall of earth from a high bank; no watch was kept to notify men shoveling below when a fall of dirt was likely, and for the foreman's negligence in that respect the company was held liable.
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