E. Van Winkle Gin & Machine Co. v. Brooks
| Decision Date | 11 July 1911 |
| Citation | 116 P. 908,29 Okla. 351,1911 OK 256 |
| Parties | E. VAN WINKLE GIN & MACHINE CO. v. BROOKS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In order to constitute a foreman or boss of a gang of laborers employed by a corporation in the construction of a water tank in connection with an oil mill a "vice principal," for whose negligence in the management of that part of the work the corporation will be liable for personal injuries to any of those employed under him and who were subject to his discretion and control, the master must confer upon such boss or foreman the entire and absolute management of the entire department, retaining no oversight and exercising no discretion of its own as to the conduct of such department except that it is the positive duty of the master to use reasonable care in providing safe tools, machinery, and appliances to work with, a safe place to work in, safe materials to work on, and safe fellow servants and coemployés, and, if the work is such as to require it, to require safe and proper rules and regulations for conducting the same. Negligence in the performance of any of these positive duties will render the master liable without regard to the standing or authority of the employé through whose fault the injury is occasioned. If the injury is not the result of an omission to perform one of these positive duties of the master, but is occasioned by the negligence of such foreman, such foreman will be deemed a "fellow servant" with the person injured, even though he has power to oversee the men and direct the work directly under his charge, unless his authority in his department is entire and absolute. If he is subject to the control of one or more over him in the management of his department, he is a fellow servant with those under him.
Where a corporation uses reasonable effort and precaution to furnish a safe place for its servant to work, and fit and proper tools and appliances to work with, and reasonable care is taken to provide competent coemployés, it is under no duty to notify such servant of transitory dangers arising out of the performance of mere detail of the work, which may be caused by acts of a fellow workman.
Error from District Court, Comanche County; J. T. Johnson, Judge.
Action by James M. Brooks against the E. Van Winkle Gin & Machine Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.
McElhoes Ferris & Rhinefort, for plaintiff in error.
J. B. Phillips and Stevens & Myers, for defendant in error.
This was an action to recover damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, prior to statehood. For convenience the parties hereafter will be called plaintiff and defendant, respectively. It seems that the defendant, a Georgia corporation, undertook to furnish the labor and material and to construct an oil mill at the city of Lawton; that in pursuance of said undertaking it employed the plaintiff to work on and about said oil mill as a common laborer; that at the time of the injury the plaintiff was working under the immediate superintendence of one Capt. Lewis, who, it was alleged, was a vice principal of the defendant, and was engaged in the erection of a water tank which was included in the general undertaking of the defendant; that the tower supporting the tank was being erected in sections, each section being about 12 feet in length; that the first, second, and third sections had been erected and sections of a ladder were fastened to the first two sections of the tower by bolts in the ordinary way, when Lewis ordered the plaintiff to descend to the ground and assist another workman who was already there to hoist the third section of the ladder to its proper place on the tower for the purpose of fastening it above the sections that had been put in place and bolted to the tower. The specific acts of negligence complained of are stated in the petition as follows: "That after this plaintiff had gone to the ground as aforesaid, the defendant, by and through the direction and order of its vice superintendent, then in charge of said work, knowingly, willfully and negligently, and without care or caution on their part, removed the stay bolts which had been placed in position to, and which did in fact hold the upper end of the said second section of the said ladder, and did by the removal of the stay bolts aforesaid render the ladder aforesaid unsafe, hazardous, and dangerous; that the defendant, well knowing that the said ladder was dangerous and unsafe, and well knowing that its then condition was wholly unknown to plaintiff, did, negligently, willfully, wantonly, and knowingly, without the exercise of reasonable care and caution, fail to notify this plaintiff that the stay bolts aforesaid had been removed, and did wantonly, knowingly, negligently, and without the exercise of reasonable care and diligence permit the plaintiff to attempt to return to his work upon the aforesaid scaffold over the iron ladder aforesaid." The answer put in issue all the allegations of the petition, except the fact of incorporation, and further invoked the doctrine of fellow servants and assumption of risk. Upon trial to a jury, there was a verdict for the plaintiff in the sum of $8,500, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.
On the question of "fellow servants," the evidence shows that John William Taylor was the general western manager for the defendant, and had general charge of the erection of the mill, with full power to furnish instrumentalities, and was present in person on the morning of the injury; that G. L Blanchard was next in authority, and next to him. One McDonald had charge of all the mechanical work. The workmen were organized into gangs or crews, each crew being in direct charge of a foreman or boss, who worked with the men; Lewis being foreman or boss of the gang to which the plaintiff belonged. Mr Blanchard employed the plaintiff and had charge of the construction of the water tank for about a half hour after they started to work upon it, whereupon, according to the testimony of the plaintiff, All of these bosses or foremen were subject to the control of the above-named officers who ranked in authority in the order named above. The defendant contends that the plaintiff and Capt. Lewis were fellow servants, and that as there were no allegations that defective instrumentalities were furnished, that said tower was not being erected in the most approved, modern, and scientific manner, or that Lewis was not a thoroughly competent man to perform the duties for which he was employed; that his failure to warn the plaintiff of the removal of the bolts, admitting that was negligence, cannot be charged against the defendant--whilst the plaintiff contends that it was the duty of the master to warn its employés of dangers arising during the progress of the work which were known to it, but unknown to the employé; that this duty arises out of the obligation to furnish the employé a reasonably safe place to work, and to use reasonable care to keep it in a safe condition. Boiled down to its last analysis, then, the question is whether the negligence charged is the neglect of a primary and absolute duty of the master to the servant. The distinction between negligence that is to be imputed to the master and that which is to be considered as the negligence of a fellow servant is clearly drawn by Mr. Justice Brewer in Baltimore & O. Ry. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772, who, after a full discussion of the subject, draws the following deductions: If we keep in mind the conclusions reached by Justice Brewer and particularly that the question of liability turns rather on the character of the act than the relations of the employés to each other, we will have no difficulty in placing this cause in the class to which it belongs. The duty to instruct and warn servants, especially where they are youthful or inexperienced, and the work is dangerous, as to permanent or constantly recurring dangers, is generally held to be nondelegable, and an employé upon whom the duty is imposed is not a fellow servant, whilst the duty to instruct and warn as to dangers arising from the execution of the general details of the work is held to...
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