Peschel v. Chi., M. & St. P. Ry. Co.

• Citation: 21 N.W. 269,62 Wis. 338
• Parties: PESCHEL v. CHICAGO, M. & ST. P. RY. CO.
• Decision Date: 06 November 1884
• Court: United States State Supreme Court of Wisconsin

62 Wis. 338

21 N.W. 269

PESCHEL

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Jefferson county.

Harlow Pease, for respondent.

John W. Cary, and D. S. Wegg, for appellant.

COLE, C. J.

The learned counsel on both sides concede that this court, in repeated decisions, has decisively settled these propositions of law: (1) That it is a duty which the master owes his servant to furnish such servant with reasonably suitable and safe machinery, means, and appliances for doing the work which the servant is required to do, as well as a reasonably safe working place; that this duty being one which the master is positively bound to perform, in the first instance, he cannot be excused from its performance by intrusting it to an agent clothed with the power and charged with the duty to make performance for him, but who neglects to discharge that duty. The master is under obligation also to use due diligence in keeping the machinery furnished in proper repair, and to provide competent and skillful fellow-servants to aid in the performance of the work required to be done. Where an agent is charged by the master with the duty of supplying suitable and safe machinery and appliances in the first instance, and of keeping them in repair, also a safe working place, such agent is not to be regarded as a fellow-servant of those who are engaged in operating the machinery, and in doing the work, for pro hac vice the agent represents the master in that regard, and is charged with the master's duty; and (2) if the master furnishes the servant with adequate machinery, means, and appliances, and a safe working place; uses reasonable care in keeping them in order and proper repair; provides suitable fellow-servants,--then he is not responsible to one servant for the negligence of another servant in the management and use of the machinery and appliances furnished for carrying on and performing his work. If an injury then results to one servant through the negligence of a fellow-servant while doing the work, this is deemed a risk which is incident to the employment, and the master is not liable for such negligence. The decisions of this court furnish many illustrations of the application of these propositions of law under a great variety of circumstances.

Now, how do these principles of law bear upon and affect the main question which is raised upon this record? It appears from the evidence that the defendant company was engaged in August, 1882, in building a water-tank and windmill for the use of its road at Platteville, Wisconsin. This depart, ment of work was under the supervision of Amos Bennett, master carpenter, whose headquarters were at Watertown, who had charge of about 900 miles of road, and from 16 to 18 gangs of men, each gang under a foreman, distributed over the road, in Bennett's charge. Bennett prepared plans for the work to be done, made estimates of and supplied all material and appliances, and forwarded them to the proper place. In this case the men detailed to do the work consisted of a foreman, Brooks, a gang of carpenters and masons, and section-men. The plaintiff was a mason in the employ of the defendant, and was directed to go to Platteville and do whatever Brooks told him to do. This was in the line of plaintiff's employment, and he aided the men as he was directed by the foreman, Brooks, who had control of the work and the entire gang of men. The water-tank consisted of a large tub, which was supported by upright timbers resting on stone walls or piers. The windmill was to be mounted on a high frame-work, which consisted of four posts about 40 feet high, held together by cross-girths, and set upon a stone wall or piers near the tank. On the morning of the injury the work had so far progressed that the tank was in its place, and the plaintiff was on the top of it preparing to do some plastering. The bents for the frame-work of the windmill were ready to be raised to their proper position. The hoisting apparatus provided for raising the bents consisted of a windlass or crab, three tackle blocks, two ropes, the tank itself, and an anchor-post set in the ground 60 feet distant from the tank, opposite to and in line with the bents. One tackle block was fastened to the upper end of the bent, one to the bed-timber at the lower end of the bent, and one to the top of the tank. One of the ropes used, called the anchor line, was fastened with one end to the tackle block on the tank, and then carried over and across the top of the tank and down to and fastened around the post set in the ground. There were two carpenters, and a man who was assisting the plaintiff, on the tank, when they were all ordered down by Brooks to aid in raising the bents.

On the special finding we must assume it as a verity in the case, though the fact is denied by some of the defendant's witnesses, especially by Brooks himself, that the plaintiff took his position to lift upon the frame where Brooks directed him to; and that he was not guilty of any negligence which contributed to the injury he received. After the bent had been raised a few feet, the anchor-post, which was sunk in the ground, to which the anchor-line was attached, suddenly pulled out of the ground, and the bent fell, crushing the plaintiff, who was lifting under it. The jury found that the post was set in the ground only three feet, and that, in view of the use to be made of it, it was not properly and safely set, but should have been set in solid soil to the depth of four feet in order to resist the force which was to be applied to it in raising the bents. They further found that Brooks was guilty of negligence or want of ordinary care in fixing and adjusting the machinery and appliances for raising the bents, including the setting of the anchor-post,--a necessary part of such machinery and appliances.

Now the contention of plaintiff's counsel is that the whole contrivance for raising the bents, including the anchor-post, constituted in fact and truth one machine by which power was to be applied and transmitted to produce the desired effect. He insists that the evidence shows, as the jury found, that the proximate cause of the injury to the plaintiff was the defective, insufficient, and unsafe machinery which the defendant, in the person of its foreman, Brooks, provided for raising the bents. Consequently, he claims that the case comes fully within the principle of our decisions which hold the master responsible for an injury occasioned by unsafe and defective machinery furnished the servant to do his work. To this argument it is answered, on the other side, that the defendant did furnish through its master carpenter, Bennett, adequate material of all kinds, stone and wood, and skillful co-servants; that all the appliances, ropes, pulleys, crab, and other tools and implements used in and about the work were proper and perfect; that if the anchor-post was insecurely set in the ground, this was not a defect for which the company is liable. Counsel says the defendant was not bound to furnish all these appliances in an adjusted condition, and so placed as to be ready to hoist the bents; that from the nature of the work to be done it is absolutely impossible to do this; and it was usual and necessary to furnish the appliances detached, to be placed in their proper position afterwards by the men themselves. He says when the defendant had furnished proper appliances so detached it had fulfilled its duty to the plaintiff. It then became a part of the contract of service for the men who were to use the machinery to take it in its detached condition and adjust it for such use. The work of the servants in adjusting the detached machinery for use was a common employment which they were hired to do and for which they were paid. Therefore, he says, if Brooks, in placing the anchor-post in the ground was guilty of negligence the defendant is not liable for that negligent act.

I see no escape from this reasoning, which appears logical and sound. It seems to me the error in the argument on the other side is in assuming that the defendant was under obligation to furnish the machinery and appliances for raising the bents, including the anchor-post, ready for use. Did the law impose upon the defendant that duty? “Whether a particular structure or appliance is one for which the master is responsible to his servant may depend upon circumstances, including the nature and scope of the employment of those engaged in its preparation and use. It may depend upon the question whether the direction and charge of the work is confined to the workmen or some of them, or retained by the employer, or left unprovided for. If the employer directs his workmen to do certain work, leaving it to them to provide the structures and appliances required for its prosecution, he may be responsible only for care in selection of the men and material assigned for it. But if he simply employs them to work under his direction, giving them no charge or responsibility in regard to the result to be accomplished, or the appliances to be used, that responsibility remains with him. The negligence of fellow-workmen, for which the master is held to be exempt from responsibility, is negligence in respect to that which the workmen undertook, or were set to do.” WELLS, J., in Arkerson v. Dennison, 117 Mass. 407-412. So, for example, where the master undertakes to build a staging, or have it built under his direct personal supervision, he is liable for any defect or insufficiency in the structure which due care on his part would have avoided or made good. This is the principle which rules Arkerson v. Dennison, supra; Behm v. Armour, 58 Wis. 1;S. C. 15 N. W. REP. 806; and Manning v. Hogan, 78 N. Y. 615. These cases affirm the doctrine, if the master has charge of the work himself, he is guilty of negligence if defective appliances are furnished, or the structure...