Surman v. Cruse

• Decision Date: 16 February 1920
• Docket Number: 4085.
• Citation: 187 P. 890,57 Mont. 253
• Parties: SURMAN et al. v. CRUSE et al.
• Court: Montana Supreme Court

187 P. 890

57 Mont. 253

SURMAN et al. v. CRUSE et al.

No. 4085.

Supreme Court of Montana

February 16, 1920

Appeal from District Court, Lewis and Clark County; J. Miller Smith and W. H. Poorman, Judges.

Action by Dora Surman and others, as heirs at law of Stephen Surman deceased, against Thomas Cruse, in which Richard Cruse and others, as administrators with the will annexed of the estate of Thomas Cruse, were substituted as defendants after the death of the original defendant. From judgment for defendants and from order denying new trial, plaintiffs appeal. Order and judgment affirmed.

W. D Rankin, of Helena, for appellants.

Walsh Nolan & Scallon, of Helena, for respondents.

HOLLOWAY J.

Thomas Cruse in his lifetime owned and operated the Bald Mountain mine at Marysville. Stephen Surman was employed to work in the mine as a timberman, and while engaged in the discharge of his duties received injuries from which he died. This action was brought by his surviving widow and children to recover damages upon the theory that the death resulted from the employer's negligence. After the action was instituted Mr. Cruse died, and his personal representatives were substituted. The trial of the cause resulted in a general verdict for defendants, and from the judgment entered thereon and from an order denying a new trial, plaintiffs appealed.

The charging part of the complaint is to the effect that in a certain stope in the mine there was a large rock which had become loosened and was in a dangerous condition; that the danger was known to the employer but not known to Surman; that, notwithstanding these facts, Surman was ordered to place a sprag (a small stull) against the rock to hold it in place; that this method of procedure was unsafe and dangerous; that Surman undertook to execute the order, and while so engaged the rock fell upon him, causing the injuries which resulted in his death.

Paraphrased, the complaint charges negligence: (1) In ordering Surman into a known place of danger; and (2) in prescribing for his guidance a dangerous method of procedure. The first ground of negligence was eliminated by the evidence, which disclosed without controversy that Surman knew of the danger. This much is apparently conceded by counsel for plaintiffs in his supplementary brief, for he says that the action is based upon "the failure of the defendant [Cruse] to select and use a reasonably safe method of performing the work in question."

The court submitted to the jury 24 instructions. Exceptions were taken to only 2 of them, 13 and 16, which are as follows:

"(13) You are instructed that Mr. Cruse had the right to conduct his business in his own way, and had the right to require Mr. Surman, as timberman, to perform such dangerous work, if any, which is usually done by timbermen in mines, and you are instructed that defendants cannot be held liable for any injury resulting solely from the dangerous character of the work that Mr. Surman was performing at the time that he suffered death.

(16) You are further instructed that, if you find from the evidence in this case that the work which Mr. Surman was about to do in connection with making the place reasonably safe where the rock fell was work which he was required to do as timberman, and you further find from the evidence that the rock in the condition in which it was was likely to fall or was in a dangerous condition, and spragging of same was a reasonably safe way in which the danger of its falling could be prevented, and spragging in such a case was a method that was generally observed in order to prevent the rock from falling, in that event the risk of being injured by the falling rock was a risk which he assumed by virtue of his employment as timberman, and for the death of Mr. Surman under those circumstances no liability would arise."

1. It is elementary that the instructions are to be considered in the light of the issues and the evidence (Yoder v. Reynolds, 28 Mont. 183, 72 P. 417), that every paragraph is to be read with the context, and that the several instructions are to be considered together as constituting the single charge of the court (Brockway v. Blair, 53 Mont. 531, 165 P. 455).

Much adverse criticism is directed to the opening statement in instruction 13:

"Mr. Cruse had the right to conduct his business in his own way."

As an abstract rule of law, it is clearly correct. In Jarrell v. Coal Co., 154 Mo.App. 552, 136 S.W. 754, it is said:

"The right of an employer to conduct his own business in his own way is a rule pertaining to the relation of master and servant too well settled to call for discussion. But this right has its limitations."

Abstract rules of law ought not to be given to a jury (First Nat. Bank v. Carroll, 35 Mont. 302, 88 P. 1012), and that principle gains added emphasis in this instance, for, standing alone, the statement contains but half the truth. So long as injury does not result from the method employed, the master cannot be required to substitute for his own judgment the judgment of some one else, in the absence of statute prescribing a particular mode of procedure, but, whenever the master employs others to work for him, the law imposes upon him the duty to exercise reasonable care for their safety, and if his method is so far faulty that it can be said to be negligence to pursue it, and if the pursuit of that method results proximately in injury to the servant, the master is liable. Verlinda v. Stone & Webster Eng. Corp., 44 Mont. 223, 119 P. 573; Westlake v. Keating G. Min. Co., 48 Mont. 120, 136 P. 38.

As among several methods which might suggest themselves, Mr. Cruse had the right to choose spragging in preference to blasting or any other method, provided spragging was a reasonably safe method of accomplishing the desired end. He was not required to select the best method or the safest appliances. The question whether the particular method prescribed was proper was to be determined by actual conditions, and not by comparison with other methods which might have been in use. Forquer v. Slater Brick Co., 37 Mont. 426, 97 P. 843; 3 Labatt, sec. 931.

If the opening clause of instruction 13 stood alone, no one would contend seriously that it states a correct principle as applied to the facts of this case; but it does not stand alone. The court cannot be expected to state the law fully in one instruction (Frederick v. Hale, 42 Mont. 153, 112 P. 70), and it is now too well settled to be open to argument that, though an instruction is erroneous in the sense that it is incomplete, but is supplemented and made complete by other instructions given, the error becomes harmless (Fitschen v. Thomas, 9 Mont. 52, 22 P. 450). In Harrington v. Butte, A. & P. Ry. Co., 36 Mont. 478, 93 P. 640, this court said:

"It is a familiar rule that, in reviewing a charge of a trial court, it will be examined as a whole. While one or more paragraphs, standing alone, may be inaccurate or even prejudicially erroneous, yet, if these are qualified and explained by the other portions of the charge in pari materia, and, taken together with them and the rest of the charge, fully and fairly submit the case to the jury, the verdict and judgment should be sustained."

Do the instructions, considered in their entirety, correctly limit the right of the employer to carry on his own business in his own way? By instruction 3 the jury were told that, if they found "that said method of taking care of said rock (spragging) was a dangerous method and likely to cause injury to one so caring for said rock, *** then you will return your verdict in favor of plaintiffs and against the defendants." In instruction 16 the jury were told that if they found that placing...