Wiesner v. Bonners Ferry Lumber Co.

Citation160 P. 647,29 Idaho 526
PartiesADOLPH J. WIESNER, Respondent, v. BONNERS FERRY LUMBER COMPANY, a Corporation, Appellant
Decision Date24 March 1916
CourtIdaho Supreme Court

On Rehearing, Oct. 24, 1916.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.

Action to recover for personal injuries. Judgment for plaintiff. Reversed.

Judgment of the trial court reversed and a new trial granted. Costs awarded to appellant.

Cannon & Ferris and H. H. Taylor, for Appellant.

The theory of the law of master and servant is not that the master is an insurer of the safety of the place where the servant works, or the appliance furnished, but, on the contrary, the master has performed his full duty toward the servant when he has used reasonable care to furnish a reasonably safe place and reasonably safe appliances, and used reasonable care to keep them reasonably safe. (Armour Co. v. Russell, 144 F. 614, 75 C. C. A. 416 6 L. R. A., N. S., 602; Alaska Mining Co. v. Whelan, 168 U.S. 86, 18 S.Ct. 40, 42 L.Ed. 390; City of Minneapolis v. Lundeen, 58 F. 525, 7 C. C. A. 344; Donovan v. Ferris, 128 Cal. 48, 79 Am. St. 25, 60 P. 519.)

"Frequent attempts have been made to bring the negligence of servants deputed to give signals within the scope of the principle that the duty to maintain a safe place of work is nondelegable. But this contention is rejected (except in Washington, where a servant who has been designated to give signals which control the movements of machinery, is while so acting, held to be doing the work of the master)." (4 Labatt, Master & Servant, 2d ed., 1537; Grady v. Southern Ry. Co., 92 F. 491, 34 C. C. A. 494; Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 49 P. 559; Northern P. Ry. v. Charless, 162 U.S. 359, 16 S.Ct 848, 40 L.Ed. 999; American Bridge Co. v. Seeds, 144 F. 605, 75 C. C. A. 407, 11 L. R. A., N. S., 1041; Maine etc. Corp. v. Hachey, 173 F. 784, 97 C. C. A. 508; McDonald v. Buckley, 109 F. 290, 48 C. C. A. 372.)

The evidence of Stewart was not rebuttal evidence, and the court erred in admitting it over appellant's objection. Respondent having testified himself as to what the rule was and that they did not at any time notify him that there was going to be a blast, he is bound by his own testimony, and could not dispute himself by the deposition of Stewart. (Stearns v. Chicago etc. Ry., 166 Iowa 566, 148 N.W 128; Holmes v. Leadbetter, 95 Mo.App. 419, 69 S.W. 23; Feary v. Metropolitan Ry., 162 Mo. 75, 62 S.W. 452; Virginia etc. Co. v. Godsey, 117 Va. 167, 83 S.E. 1072; California etc. Works v. Finck, 47 F. 583; Durham v. Carbon etc. Co., 22 Kan. 232; Coit v. Waples, 1 Minn. 134; Atwater v. Edwards etc. Co., 147 Mo.App. 436, 126 S.W. 823; Shea v. Seelig, 89 Mo.App. 146.)

John P. Gray and Allen P. Asher, for Respondent.

This court has definitely and deliberately adopted the doctrine that the duty to warn is the nondelegable duty of the master, and that negligence in the giving of warning or in the failure to warn where it is necessary is not the negligence of a fellow-servant, but the negligence of the master. (Lucey v. Stack-Gibbs Lbr. Co., 23 Idaho 628, 131 P. 897, 46 L. R. A., N. S., 86; Potlatch Lbr. Co. v. Anderson, 199 F. 742, 118 C. C. A. 180; Cunningham v. Adna Mill Co., 71 Wash. 111, 127 P. 850; Belleville Stone Co. v. Mooney, 61 N.J.L. 253, 39 A. 764, 39 L. R. A. 834; Ondis v. Great Atlantic & Pacific Tea Co., 82 N.J.L. 511, 81 A. 856, 46 L. R. A., N. S., 777; Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S.W. 481, 17 L. R. A., N. S., 292; Kempfert v. Gas Traction Co., 120 Minn. 90, 139 N.W. 145; Elenduck v. Crookston Lbr. Co., 121 Minn. 53, 140 N.W. 125.)

The decision in the Lucey case is in harmony with the modern principles which the courts all over the land are adopting and enforcing, and is supported by the many cases cited in the opinion, and has at least once since that time been favorably cited. (Browning v. Smiley-Lampert Lbr. Co., 68 Ore. 502, 137 P. 777-781. Also approved in Barter v. Stewart Min. Co., 24 Idaho 542, 135 P. 68.)

The rules relating to the order of introducing evidence are for the most part mere rules of practice; they are under the control of the court and subject to be varied in the exercise of a sound judicial discretion; so that a departure from the ordinary rules or a refusal to grant indulgence to a party cannot be made a ground of error. (5 Jones on Evidence, p. 67; Barkley v. Copland, 74 Cal. 1, 5 Am. St. 413, 15 P. 308, 310; Mutual Life Ins. Co. v. Thomson, 94 Ky. 253, 22 S.W. 87; Devonshire v. Peters, 104 Mich. 501, 63 N.W. 973; Willard v. Pettitt, 153 Ill. 663, 39 N.E. 991; Hart v. United States, 84 F. 799, 28 C. C. A. 612; Blewett v. Gaynor, 77 Wis. 378, 46 N.W. 547; Baer v. State, 59 Neb. 655, 81 N.W. 856.)

BUDGE, J., MORGAN, J. Sullivan, C. J., Morgan, J., and Budge, J., concurring.

OPINION

BUDGE, J.

This is an action to recover for personal injuries alleged to have been sustained by respondent while in the employ of the appellant. The cause was tried by the court with a jury, which resulted in a verdict and judgment in favor of the respondent for the sum of $ 12,000.

The facts, briefly stated, are: The respondent was employed by the appellant corporation to assist in the construction of a logging roadway. While so engaged he received the injuries complained of, which were caused by the explosion of dynamite used by his coemployees in blowing out stumps along the roadway under construction. At the time respondent received these injuries he was assisting in the sawing of trees lying along this roadway, for the purpose of facilitating their removal. A gang of his fellow-workmen had preceded him and was removing the brush, and another gang, engaged in the blowing out of the stumps, was following at some distance.

It is charged in the complaint that no proper warning or notice was given respondent immediately prior to the discharge or explosion of the dynamite which resulted in his being struck by quantities of wood or other hard substances, causing his injuries; that the discharge of such a large quantity of explosive in the vicinity of where respondent was employed constituted a new and increased danger at the time and place where he was working of which he had no knowledge, and changed the dangers and risks of the place where he was working without his knowledge and without warning to him; that it was the duty of appellant to give him warning that such explosive would be set off and discharged in the vicinity of where he was working, so that he could have an opportunity of saving himself from injury; that appellant was negligent in permitting said explosive to be discharged near where respondent was working without giving him warning of the danger he was in, and that by the exercise of reasonable care on the part of appellant, such warning could have been given and respondent could have escaped; and that appellant did not adopt any rules or regulations for the conduct of its business so as to afford reasonable or any protection to respondent, or that if it did adopt any such rules, it did not use reasonable care to see that they were enforced or complied with. The complaint also sets out the earning capacity of respondent, the nature and result of the alleged injury, the age of respondent, his life expectancy, and the invalidity of the settlement in satisfaction of the injury.

Appellant assigns and relies for a reversal of this case upon eleven specifications of error, but for convenience discusses all of these assignments under the following subdivisions, and in our determination of this case we will, as far as necessary, pursue this order of discussion:

First: Appellant is not liable for the alleged negligence of the powderman in failing to give the usual warning signal.

Second: The evidence establishes conclusively that appellant used reasonable care to enforce the giving of the warning signal.

Third: The court erred in admitting the deposition of Stewart.

Fourth: A new trial must be granted because the birth record was false in a material part.

Fifth: The verdict is excessive in view of respondent's prior condition.

It is first contended that the record shows conclusively that appellant had adopted a reasonably safe method of conducting its blasting operations; that reasonable care had been used to enforce such blasting methods; that the man in charge of the blasting was a thoroughly competent man, with years of experience in that class of work; and that the court instructed the jury that this powderman was competent. Whether or not the powderman gave the warning signal is a disputed fact, but it is contended by appellant that even if there was no evidence that it was in fact given, the case should not have been submitted to the jury, for the reason that the negligence of the powderman in failing to give the signal would not in law be the negligence of the master. In other words, the master having furnished a competent servant to give the signals, having adopted a reasonably safe signal system, and having used reasonable care to see that the signal system was enforced, its nondelegable duties were complied with, and the giving of the signal was a mere detail of the work which could be delegated to a competent servant.

Counsel for appellant in support of their contention that appellant is not liable for the alleged negligence of the powderman in failing to give the usual warning signal cite the case of Armour Co. v. Russell, 144 F. 614, 75 C. C. A. 416 6 L. R. A., N. S., 602. This was an action by a servant against his master for damages for negligence in the construction and maintenance of elevators and shaft in which they operated. At the close of the evidence counsel for defendant reque...

To continue reading

Request your trial
5 cases
  • Brayman v. Russell & Pugh Lumber Co.
    • United States
    • Idaho Supreme Court
    • December 27, 1917
    ...Defendant having provided that the warning should be given, had fully complied with the obligations placed upon it by law. ( Wiesner v. Bonners Ferry Lbr. Co., supra.) of those engaged in the master's service in effecting a common purpose are to be deemed fellow-servants, notwithstanding th......
  • Wilson v. Joe Boom Co., Ltd.
    • United States
    • Idaho Supreme Court
    • July 30, 1921
    ... ... one purpose, and that is to prejudice the jury. ( Steve v ... Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; ... Iverson v. McDonnell, ... the operation of such a place or machinery. ( Wiesner v ... Bonners Ferry Lumber Co., 29 Idaho 526, 160 P. 647, L ... R. A ... ...
  • Selhaver v. Dover Lumber Co.
    • United States
    • Idaho Supreme Court
    • January 4, 1918
    ... ... the nature and extent of the hazard." (Crawford v ... Bonners Ferry Lumber Co., 12 Idaho 678, 87 P. 998, 10 ... Ann. Cas. 1; Chiara v. Stewart Min. Co., 24 ... the action. In the case of Wiesner v. Bonners Ferry ... Lumber Co., 29 Idaho 526, 160 P. 647, L. R. A. [31 Idaho ... 224] 1917C, ... ...
  • Warner v. Pittsburgh-Idaho Co., Ltd.
    • United States
    • Idaho Supreme Court
    • November 9, 1923
    ... ... (26 ... Cyc. 1196, par. 5; Selhaver v. Dover Lumber Co., 31 ... Idaho 218, 169 P. 1169; Smith v. Hecla Mining Co., ... 38 ... Alturas Gold Mining Co., ... 3 Idaho 510, 31 P. 819; Crawford v. Bonners Ferry Lumber ... Co., 12 Idaho 678, 10 Ann. Cas. 1, 87 P. 998; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT