Renlund v. Commodore Min. Co.

• Decision Date: 27 February 1903
• Citation: 89 Minn. 41,93 N.W. 1057
• Parties: RENLUND v. COMMODORE MIN. CO.
• Court: Minnesota Supreme Court

89 Minn. 41

93 N.W. 1057

RENLUND

v.COMMODORE MIN. CO.

Supreme Court of Minnesota.

Feb. 27, 1903.

Appeal from district court, St. Louis county; Homer B. Dibell, Judge.

Action by Alex. Renlund, as administrator of John Erickson, deceased, against the Commodore Mining Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Syllabus by the Court

1. In an action to recover damages for the death of a laborer in a mine, caused by the negligence of the master in controlling its skip cars, held, the capacity in which the foreman was acting, and the question of his negligence, were proper questions for the jury, and the evidence reasonably tended to support the verdict.

2. Nonresident aliens who are next of kin are entitled to the benefits conferred by section 5913, Gen. St. 1894. John G. Williams, for appellant.

Adams & Miller, for respondent.

LEWIS, J.

This action was commenced under section 5913, Gen. St. 1894, for the benefit of the next of kin of the deceased, who lost his life while working in the defendant's mine. The accident occurred as follows: There was a shaft 372 feet deep, at an angle of about 27°, in which were operated two skip tracks, separated by timbers about 4 feet apart. On these tracks two skip cars were arranged to balance each other, so that when one was going up, the other would be going down. The skips were run by an engine at the upper end of the shaft. On the right side of the shaft was a stairway running parallel with it, and extending from the surface to within a few feet of the bottom. The second and third levels were being operated, the latter being at the bottom of the shaft. In going out of the mine the men on the third level were compelled to go up the skip track a certain distance until they reached the stairway. On the evening of the accident the men gathered at the foot of the shaft, waiting for a signal to go up. The charge of negligence is based upon the claim that the skip boss, who was in charge of the men on the third level, while acting in the capacity of vice principal, assumed control of the skip, and directed the men to go upon the skip track, in order to reach the stairway, and that, while the deceased was going up, the right-hand skip car was rung down, and caught and killed him before he reached the ladder. The assignments of error present two questions: Whether there was evidence reasonably tending to establish negligence of defendant? Any whether any recovery can be maintained in this action, for the reason that the beneficiary under the statute, the mother of the deceased, is a nonresident alien?

1. The question of negligence turns upon whether the skip boss, Jacobson, at the time he directed the men to pass up the righthand skip track, and gave the signal for the movement of the skip car, was a fellow servant of the deceased, or whether he was acting in the capacity of a vice principal. The evidence is quite conclusive that the men were directed by Jacobson in the manner stated, and, according to his own statement, he gave the signal for the skip car upon the right-hand side to go up, but for some reason it came down. In respect to what capacity Jacobson was acting, the court instructed the jury that it was the duty of defendant to exercise reasonable care to provide a reasonably safe and suitable place in which its servants might perform the duties assigned them, including suitable means of egress from the mine, and to keep and maintain such place in a reasonably safe and suitable condition, and to see that the work was carried on in a manner reasonably safe to its employés; that the employer could not delegate to another the performance of such duties, and thereby escape liability; and that the person to whom such duties were delegated was the vice principal of the master, and for his negligence in their performance the master was liable. The court also instructed the jury that a foreman, mining captain, or superintendent might, in respect to some specific work, be a fellow servant, and in other respects be a vice principal; that if the method of carrying on the work required that the master exercise reasonable care in directing the movements of the men as they were leaving the mine, and if the master delegated such duty to the shift boss, and he was negligent in the performance thereof, then such negligence was the act of the master. The trial court here laid down very concisely and accurately the principles of law governing the case, and no exceptions were taken thereto. But it is claimed that it conclusively appears from the evidence that the skip boss, Jacobson, was acting in the capacity of a fellow servant. In our judgment, the court was correct in submitting this question to the jury. It will be admitted that if the skip boss had no authority as a general foreman or superintendent, and it was not a part of his duty to assume charge of and direct the movements of the men as they passed out of the mine, then, if he assumed to perform an act which was beyond the scope of his duty, and attempted to direct the men and control the skip, such act of negligence would not be attributable to the master. It will also be conceded that if it was the duty of the skip tender, Johnson, to control the movements of the car at the time the men made egress from the mine, and, being otherwise engaged at this particular moment, he permitted Jacobson, who had no authority to thus interfere, to perform that duty for him, and the accident occurred by reason of his negligence, in that case the master cannot be held liable. But if, in addition to his duties as skip boss, there was conferred by the master upon Jacobson the additional duty of general supervision and control of the men in that shaft during the absence of the captain or superintendent, and it was a part of such duty to see that the men made a safe exit from the mine, and he was in the exercise thereof at the time in question, then his acts were not those of a fellow servant, but were in pursuance of the duty imposed upon him as a vice principal. There was some conflict in the testimony as to the nature of Jacobson's duties, but there was evidence tending to show that it was his custom to assume general charge of the men, and direct their movements in a general way while in the shaft, including the method and manner of going out of the mine. It does not conclusively appear that this duty was imposed upon the skip tender, Johnson, and, under the evidence, it was a question for the jury to determine in what capacity Jacobson was acting,...