Warehime v. Huseby
| Decision Date | 12 November 1917 |
| Citation | 165 N.W. 502,38 N.D. 344 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Williams County, Honorable Frank E. Fisk, Judge.
Affirmed.
Palmer Craven, & Burns, for appellants.
The plaintiff and others employed by defendants in the same line of work were fellow servants. "The negligence of a foreman of a gang, in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow servant, although the foreman had authority to employ and discharge plaintiff and the plaintiff was under his superintendence and control in doing the work in the performance of which they were engaged." Ell v. Northern P. R. Co., 1 N.D 336, 12 L.R.A. 97, 26 Am. St. Rep. 621, 48 N.W. 222.
The negligent performance or omission to perform a duty which the master owes to his employees is, at common law, the negligence of the master, whatever the grade of the servant who is in that respect careless. The negligence of the servant engaged in the same general business with the injured servant is the negligence of a fellow servant, whatever position the former occupies with respect to the latter, as to all acts which pertain to the duties of mere servants, as contradistinguished from the duties of the master to his employee. Lang v. Bailes, 19 N.D. 582, 125 N.W. 891; Ness v. Great Northern R. Co., 25 N.D. 572, 142 N.W 165; Jackson v. Chase, 26 N.D. 367, 144 N.W. 235; American Bridge Co. v. Seeds, 11 L.R.A. (N.S.) 1041 75 C. C. A. 407, 144 F. 605; Stevens v. Chamberlin, 51 L.R.A. 513, 40 C. C. A. 421, 100 F. 378; Kern v. De Castro & D. Sugar Ref. Co., 125 N.Y. 50, 25 N.E. 1071; Casey v. Pillsbury Flour Mill Co., 122 Minn. 474, 142 N.W. 726; Corey v. Joliet Bridge & Iron Co., 151 Mich. 558, 115 N.W. 737; Richter v. Union Lime Co., 153 Wis. 261, 140 N.W. 1126; Baltimore & O. S.W. R. Co. v. Hunsucker, 33 Ind.App. 27, 70 N.E. 556.
If there are two known ways of performing an act, one of which is safer than the other, it is contributory negligence to voluntarily adopt the more dangerous method because it is the most convenient. Rohlfs v. Fairgrove Twp. 174 Mich. 555, 140 N.W. 908; Allen v. Green Bay Mfg. Co., 150 Wis. 545, 137 N.W. 766; Lynch v. Saginaw Valley Traction Co., 153 Mich. 174, 116 N.W. 983; Hussey v. Coger, 112 N.Y. 614, 3 L.R.A. 559, 8 Am. St. Rep. 787, 20 N.E. 556; Tedford v. Los Angeles Electric Co., 54 L.R.A. 117, note.
"The general rule is that a master is not responsible for the errors which a servant of superior grade may commit in regard to the choice of methods for carrying out the work intrusted to his management." Morgridge v. Providence Teleph. Co., 20 R. I. 386, 78 Am. St. Rep. 879, 39 A. 328; Knutter v. New York & N. J. Teleph. Co., 67 N.J.L. 646, 58 L.R.A. 808, 52 A. 565, 12 Am. Neg. Rep. 109; Tedford v. Los Angeles Electric Co., 54 L.R.A. 109, note; Petaja v. Aurora Iron Min. Co., 106 Mich. 463, 32 L.R.A. 435, 58 Am. St. Rep. 505, 64 N.W. 335, 66 N.W. 951; Bell v. Lang, 83 Minn. 228, 86 N.W. 95.
Here the plaintiff and Elwell Ellithorpe were fellow servants, and the releasing of the "cage" was but a detail of the work as to which the master owed no duty. Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440, 4 S.Ct. 433; Perry v. Rogers, 157 N.Y. 251, 51 N.E. 1021, 5 Am. Neg. Rep. 68; Capasso v. Woolfolk, 163 N.Y. 472, 57 N.E. 760; Vogel v. American Bridge Co., 180 N.Y. 375, 70 L.R.A. 725, 73 N.E. 1, 17 Am. Neg. Rep. 689; Morgan Constr. Co. v. Frank, 86 C. C. A. 168, 158 F. 964; Goddard v. Interstate Teleph. Co., 56 Wash. 536, 106 P. 189; Broderick v. St. Paul City R. Co., 74 Minn. 163, 77 N.W. 28; Saxton v. Northwestern Teleph. Exch. Co., 81 Minn. 314, 84 N.W. 109.
There is no joint liability shown in this case, and there is no right of recovery on such basis. Fergason v. Chicago, M. & St. P. R. Co., 63 F. 177; Schlosser v. Great Northern R. Co., 20 N.D. 406, 127 N.W. 502; 1 Jaggard, Torts, p. 281.
Wm. G. Owens and E. R. Sinkler for respondent.
Negligence, contributory negligence, and assumption of risk are primarily questions for the jury in this jurisdiction. Johnson v. Fargo, 15 N.D. 525, 108 N.W. 243, 20 Am. Neg. Rep. 460; Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676: Solberg v. Schlosser, 20 N.D. 307, 30 L.R.A. (N.S.) 1111, 127 N.W. 91; Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; Umsted v. Colgate Farmers' Elevator Co., 18 N.D. 316, 122 N.W. 390; Webb v. Dinnie Bros. 22 N.D. 377, 134 N.W. 41; Hollingshead v. Minneapolis, St. P. & S. Ste. M. R. Co., 20 N.D. 642, 127 N.W. 993; Jackson v. Grand Forks, 24 N.D. 601, 45 L.R.A. (N.S.) 75, 140 N.W. 718; Messer v. Bruening, 32 N.D. 515, 156 N.W. 241.
Elwell Ellithorpe was a vice principal of the other two defendants here, and therefore any negligence of his which was the proximate cause of the injury is the negligence of the other two defendants, or of the partnership. Swanson v. Schmidt-Gulack Elevator Co., 22 N.D. 571, 135 N.W. 207; Webb v. Dinnie Bros. 22 N.D. 377, 134 N.W. 41; 28 Cyc. 1115.
"It is well settled by all the authorities that the master must provide his servant with a safe place in which to work, and must furnish him with suitable machinery and appliances with which to work, and to keep such machinery in good repair." 26 Cyc. 1115, and cases cited; Fink v. Des Moines Ice Co., 84 Iowa 321, 51 N.W. 155.
The rules of law, applicable to principal and agent, must apply in such cases. Shearm. & Redf. Neg. 4th ed. 194, 204; Lang v. Bailes, 19 N.D. 582, 125 N.W. 891.
The law will not excuse the master from liability where a "cage" falls into a mine by reason of defective brakes. The brake is one of the important instruments in such work, which the master must see and keep safe. Myers v. Hudson Iron Co., 150 Mass. 125, 15 Am. St. Rep. 176, 22 N.E. 631; Texas & P. Coal Co. v. Daves, 41 Tex. Civ. App. 289, 92 S.W. 275; 26 Cyc. 1097, 1104.
It was the master's duty when he gave plaintiff orders to go upon the car, to know that the car and the brake were safe. Webb v. Dinnie Bros. 22 N.D. 377, 134 N.W. 41; Haas v. Balch, 6 C. C. A. 201, 12 U. S. App. 534, 56 F. 984; O'Brien v. Nute-Hallett Co., 177 Mass. 422, 59 N.E. 65; 4 Labatt, Mast. & S. 3913.
The doctrine of assumption of risk is based upon contract and the relationship of master and servant. One cannot assume that which he does not know. Umsted v. Colgate Farmers' Elevator Co., 18 N.D. 316, 122 N.W. 390.
A servant cannot be paid to assume a risk when he acts in obedience to orders of his master or of orders of the master's agent. Webb v. Dinnie Bros. 22 N.D. 377, 134 N.W. 41; Choctaw, O. & G. R. Co. v. Jones, 7 Ann. Cas. 435, note; Haas v. Balch, 6 C. C. A. 201, 12 U. S. App. 534, 56 F. 984; 4 Labatt, Mast. & S. pp. 3928, 3936, 3960, 3965, 3967; Miller v. Bullion-Beck & C. Min. Co., 18 Utah 358, 55 P. 59; McKee v. Tourtelotte, 167 Mass. 69, 48 L.R.A. 542, 44 N.E. 1071; Brown v. Lennane, 155 Mich. 686, 30 L.R.A. (N.S.) 453, 118 N.W. 581; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N.E. 876.
Whether plaintiff acted recklessly in obeying orders, or whether he acted as a reasonably prudent person should act, are questions of fact for the jury, and the jury having passed on them, they are settled. 4 Labatt, Mast. & S. pp. 3960 to 3974; Graham v. Newburg Orell Coal & Coke Co., 38 W.Va. 273, 18 S.E. 584; Harder & H. Coal Min. Co. v. Schmidt, 43 C. C. A. 532, 104 F. 282, 9 Am. Neg. Rep. 227; Bradbury v. Goodwin, 108 Ind. 286, 9 N.E. 302; Lake Superior Iron Co. v. Erickson, 39 Mich. 492, 33 Am. Rep. 433, 10 Mor. Min. Rep. 39; Stomme v. Hanford Produce Co., 108 Iowa 137, 78 N.W. 841; Gundlach v. Schott, 192 Ill. 509, 85 Am. St. Rep. 348, 61 N.E. 332; Shadford v. Ann Arbor Street R. Co., 121 Mich. 224, 6 Am. Neg. Rep. 579, 80 N.W. 30; Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298, 55 N.E. 998.
The plaintiff brings this action for personal injury. He recovered a verdict and judgment for $ 2,500, and defendant appeals.
The complaint is that defendant John Huseby and Clarence Ellithorpe are partners, engaged in the operation of a lignite coal mine in Williams county, and the other defendant is the foreman of the partners. That on February 22, 1915, and prior thereto, plaintiff was in the employ of said partnership, under the supervision and direction of said foreman. That for carrying on the operations of the mine the defendants owned and operated a hoisting engine and apparatus, consisting of pulleys, lifts, tracks, scales, etc., which machinery was under direct supervision of said foreman. That on February 22, 1915, they allowed the hoisting apparatus to get out of repair so the same became dangerous and the part known as the tipple became disarranged and broken; that pursuant to the direction of the defendants the plaintiff climbed upon the works to make necessary repairs and to replace the hoisting cable onto the pulley from which it had slipped, and that while at work on the same, under the immediate direction of the foreman, the car fell with him to the bottom of the shaft, by which he sustained injury to the amount of $ 10,000.
By answer defendants claim that the injuries to plaintiff was due to his own negligence and want of care, and that he virtually assumed the risk of his dangerous employment, and that he was guilty of contributory negligence.
The law of the case is this:
Comp Laws, § 5948. Every person is responsible for an injury occasioned to another by his want of ordinary care and skill in the management of his property, except...
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