Brayman v. Russell & Pugh Lumber Co. , 31 Idaho 140 ( 1917 )

MORGAN, J.

Respondent was employed by appellant as a teamster. His duties consisted in hauling logs from the place where they were skidded to where they were placed in a chute, whereby they were conducted into Lake Coeur d’Alene preparatory to delivery at the sawmill. While assisting the loaders in loading the logs on to a truck, respondent was struck by a falling tree and his arm broken. It appears that in the vicinity of the skidway where the logs were being loaded, sawyers were working, which fact was unknown to respondent; that they felled a tree which, in falling, struck a dead tree which, in turn, fell and struck respondent as above stated. Bespondent instituted this action to recover damages alleged to have been sustained by him on account of such injury, and based his claim upon the negligence of appellant in directing him to load logs at a place rendered unsafe by reason of the close proximity of the sawyers; in failing to give proper signals of warning before felling the tree, and in permitting the tree to be felled in the direction of the skidway. The case was tried before a jury, which rendered a verdict in respondent’s favor for $5,000, and judgment was entered accordingly. Appellant moved for a new trial, which motion was denied, and from the judgment and order denying the motion for a new trial this appeal has been taken.

Appellant contends that respondent was not acting within the scope of his employment, but was a volunteer, when injured. It is true respondent was employed as a teamster, or driver, and that immediately prior to the time he was injured he was on the top of his load helping the loaders, but there was evidence, contradicted, it is true, to show that it was the custom in appellant’s camp, and in similar camps, for the teamster, or driver, to .help the loaders load his truck in the manner in which respondent was engaged at the time of the accident.

The court instructed the jury that respondent could not recover if injured while performing work outside the scope of his employment, unless ordered so to do by the master, or unless such work was done with the master’s consent or acquiescence, and that if it was the custom for drivers to assist in top-loading, then appellant could not set up as a defense the fact that respondent was so engaged when injured. The jury must have found that it was a custom, acquiesced in by appellant, for the driver to assist in top-loading, and the evidence, though conflicting, is sufficient to sustain this finding.

The instruction above mentioned clearly states the law. The scope of the servant’s duties is to be defined by what he was employed to perform and by what, with the knowledge and approval of his employer, he actually did perform. (Robert Sherer & Co. v. Industrial Accident Com. (Cal.), 166 Pac. 318; 26 Cyc. 1088; Dresser’s Emp. Liability, sec. 103; Rummell v. Dilworlh, 111 Pa. St. 343, 2 Atl. 355, 363; Arkadelphia L. Co. v. Henderson, 84 Ark. 382, 105 S. W. 882; Hugo, Schmeltzer & Co. v. Paiz (Tex. Civ.), 128 S. W. 912; Belton Oil Co. v. Duncan, 60 Tex. Civ. 257, 127 S. W. 884; Jellico Coal Min. Co. v. Woods, 154 Ky. 683, 159 S. W. 530; Marshall v. United Rys. Co. of St. Louis (Mo. App.), 184 S. W. 159; Heilig v. Southern Ry. Co., 152 N. C. 469, 67 S. E. 1009; Powhatan Lime Co. v. Whetzel’s Admx., 118 Va. 161, 86 S. E. 898; Big Five Tunnel O. R. & T. Co. v. Johnson, 44 Colo. 236, 99 Pac. 63; Union Pac. R. Co. v. Brereton, 218 Fed. 593, 134 C. C. A. 321.)

The trial court instructed the jury: “The duty is upon the defendant to furnish a reasonably safe place for the plaintiff to work and to keep such place reasonably safe. .... ” Appellant contends that this instruction is erroneous for the reason it intimates that appellant was absolutely the insurer of the safety of the place where respondent was working, whereas its duty was simply to use ordinary care in furnishing and maintaining a safe place. Respondent has cited many cases wherein such an instruction has been upheld, yet in none of them does it appear that it was assailed upon the same ground as in this case.

There can be no doubt that the true rule is, not that the master must furnish a reasonably safe place for the servant to work, but he must use ordinary care and diligence in furnishing a reasonably safe place. (Wiesner v. Bonners Ferry Lumber Co., 29 Ida. 526, 160 Pac. 647, L. R. A. 1917C, 328; Armour & Co. v. Russell, 144 Fed. 614, 75 C. C. A. 416, 6 L. R. A., N. S., 602; F. C. Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309; Lincoln St. Ry. Co. v. Cox, 48 Neb. 807, 67 N. W. 740; Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 1, 78 N. W. 359; Anderson v. Michigan Cent. R. Co., 107 Mich. 591, 65 N. W. 585; Hughley v. City of Wabasha, 69 Minn. 245, 72 N. W. 78; Cudahy Pack. Co. v. Roy, 71 Neb. 600, 99 N. W. 231; International & G. N. R. Co. v. Bell, 75 Tex. 50, 12 S. W. 321; Chicago & E. I. R. Co. v. Garner, 78 Ill. App. 281; Peoria D. & E. Ry. Co. v. Hardwick, 48 Ill. App. 562; Chicago, B. & Q. R. Co. v. Merckes, 36 Ill. App. 195; Conway v. Illinois Cent. R. Co., 50 Iowa, 465.) However, the trial court, before giving the instruction complained of, instructed the jury that respondent had ‘ ‘ a right to rely on the presumption that defendant used and was using reasonable care in furnishing a reasonably safe place to work,” and in instruction numbered 18 charged the jury that “it was the duty of the defendant to use reasonable care and diligence to furnish a safe place for plaintiff to perform the work for which he was employed, but this duty did not require the defendant to furnish a place free from hazards or dangers, but only to exercise ordinary care and prudence to furnish such a place. The defendant was under no obligation to keep the plaintiff absolutely safe or free from danger or to insure the plaintiff against accidents.” This instruction correctly states the law.

In many cases it has been held that where the instruction complained of was given, followed by an instruction like that numbered 18 in this case, there was prejudicial error as the two instructions were contradictory and it was not possible to say which one the jury followed. (Armour & Co. v. Russell, supra; Chicago, B. & Q. R. Co. v. Oyster, supra; Hughley v. City of Wabasha, supra; Chicago & E. I. R. Co. v. Garner, supra; Peoria D. & E. Ry. Co. v. Hardwick, supra; Chicago, B. & Q. R. Co. v. Merckes, supra; Conway v. Illinois Cent. R. Co., supra; F. C. Austin Mfg. Co. v. Johnson, supra.)

We are not in accord with that conclusion. While the instruction complained of, standing, alone, was incomplete, and, for that reason, erroneous, it was not contradictory to or inconsistent with instruction numbered 18, and read therewith clearly states the law.

In 26 Cyc. 1097 to 1102, we find: “It is a positive duty of a master to furnish his servant with reasonably sate instrumentalities wherewith, and places wherein, to do his work, and in the performance of these obligations imposed by law, it is essential that regard should be had not only to the character of work to be performed, but also to the ordinary hazards of the employment; and the servant may assume that the master has performed such duty.....The master is not an insurer of his servant’s safety, but is only required to exercise such ordinary care and diligence as may be reasonable in view of the work to be performed and the dangers incident to the employment.”

It cannot be said that the first portion of the above quotation contradicts what follows, but rather is qualified by it, so the instruction complained of is qualified by that numbered 18. All the instructions given in a ease must be read and considered together, and where, taken as a whole, they correctly stated the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by an isolated portion thereof. (State v. Curtis, 30 Ida. 537, 165 Pac. 999, and cases therein cited; Kelly v. Lemhi Irr. etc. Co., 30 Ida. 778, 168 Pac. 1076.)

It is appellant’s contention that the sawyers were fellow-servants of respondent. If this be true, judgment should be reversed, for the reason that the jury may have decided respondent was injured through the negligence of the sawyers in not giving the proper warning or in negligently felling timber in the direction of the skidway, and not through the negligence of appellant in directing respondent to work in a dangerous place without warning him of the danger. There is conflict in the evidence as to whether or not the sawyers gave sufficient warning before cutting the tree, but there was sufficient evidence to sustain the finding of the jury that the sawyers were negligent in this respect, if its verdict was based upon that theory.

Whether or not respondent and the sawyers were fellow-servants was. because of the disputed facts in this case, a question to be determined by the jury, and the court instructed it as follows: “In order to constitute the defendant a fellow-servant with the fellers of timber, they must have been employed fey the master.in some common line of employment by which employment they would co-operate in the particular business then in hand in the same line of employment, or whose usual duties would bring them into habitual association so that they might exercise mutual influence upon each other promotive of proper caution; but if you find in this case that the plaintiff and the fellers of timber did not associate together in the same common work, but were employed in different lines of work and were engaged in working separately from each other, the one not knowing what the other was doing or how the work was being carried on by him, and nothing of their work in common, and not associating together in performing the work, but acting entirely independent in a different part of the work, they would not be fellow-servants under the law, and the defendant could not escape liability for any injury caused by one to the other.” This instruction correctly states the law with respect to what constitutes a fellow-servant. (Relyea v. Kansas City, Ft. St. & G. R. Co., 112 Mo. 86, 20 S. W. 480, 18 L. R. A. 817; Union Pacific R. Co. v. Erickson, 41 Neb. 1, 59 N. W. 347, 29 L. R. A. 137; Illinois Steel Co. v. Ziemkowski, 220 Ill. 324, 77 N. E. 190, 4 L. R. A., N. S., 1161; Chicago etc. R. Co. v. Kneirim, 152 Ill. 458, 43 Am. St. 259, 39 N. E. 324; Chicago City R. Co. v. Leach, 208 Ill. 198, 100 Am. St. 216, 70 N. E. 222; Richardson v. City of Spokane, 67 Wash. 621, 122 Pac. 330; Putnam v. Pacific Monthly Co., 68 Or. 36, 130 Pac. 986, 136 Pac. 835; Irwin v. F. P. Gould & Son, 99 Neb. 283, 156 N. W. 503; 18 R. C. L. 758.)

' The courts are not in harmony as to what is necessary to Establish the relation of fellow-servant, some holding that those are fellow-se.rvants who serve the same master, work under the same control and are engaged in the same general business. Having in mind the very reason for the adoption, by the courts, of the fellow-servant doctrine, we hold that the rule supported best by reason and authority is that stated in Chicago City R. Co. v. Leach, supra, as follows: “Those are fellow-servants who are eo-operating, at the time of an injury, in the particular business in hand, or whose usual duties are of a nature to bring them into habitual association, or into such relation that they can exercise an influence upon each other promotive of proper caution.” The instruction on the question of fellow-servant is in harmony with the law as above quoted.

Witnesses testified that it was not customary in appellant’s camp, or in camps of like nature, for the sawyers and those hauling logs, or the loaders, to work in the same vicinity; that the sawyers felled the trees and cut them into sawlog lengths; after they had finished their work and left, swampers followed, whose duty it was to remove the brush and limbs, and make ready for the logs to be skidded; that the logs were then hauled to the skidways, where the loaders loaded them on the trucks. Assuming this testimony is true, and the jury had a right to proceed upon that theory, it appears that the usual duties of sawyers and teamsters are not of a nature to bring them into habitual association or into such relation that they can exercise an influence upon each other promotive of proper caution, and it further appears that the respondent and the sawyers were not, at the time of the injury, co-operating in the particular business in hand. Therefore, the jury was warranted in finding they were not fellow-servants, if it did so find.

Bespondent was asked, on direct examination:' “Q. You may state what the fact is as to whether or not you followed the doctor’s advice strictly in relation to that arm and the treatment of it. A. Yes, I did.” Appellant offered to prove that during the time Dr. Phinney was attending respondent he stated one morning that during the night before he dreamed he was falling out of bed and in trying to catch himself he hurt his arm and he thought he had thrown it out of place; that the doctor said it would be necessary to operate on the arm, but respondent refused to submit to an operation, and stated that if the doctor would take the arm off so he could recover more from appellant, he would consent, and when the doctor insisted upon an operation he refused, saying that he intended to get,a life pension out of appellant. The offer of proof was rejected upon the ground that the doctor was precluded from so testifying by reason of see. 5958, Bev. Codes, which provides: . . . . 4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient; .... ”

It is contended that the doctor who attended respondent was, in reality, hired by the appellant and that, because of this fact, the above provision does not apply. This contention is without merit. (40 Cyc. 2383.) Nor did respondent waive the privilege by testifying that he followed the physician’s advice. (Union Pac. R. Co. v. Thomas, 152 Fed. 365, 81 C. C. A. 491.) It is clear to us that the testimony sought to be elicited is within the spirit and purpose of the prohibition of sec. 5958. (Jones v. City of Caldwell, 23 Ida. 467, 130 Pac. 995.) This statute is identical with the California provision. In McRae v. Erickson, 1 Cal. App. 326, 82 Pac. 209, a decision of the supreme court of California, in construing- the statute of -that state, we find, quoting from the syllabus: “Under the statute forbidding a physician to be examined as to any information acquired in attending his patient, the acquisition of which is necessary in order to enable him to prescribe or act for the patient, all statements made by a patient to his physician, while the latter is attending the former in that capacity, for the purpose of determining his condition, are privileged, although they have nothing to do with the patient’s treatment, or the determination of his injuries, but relate to the way in which the injuries occurred.”

Appellant contends that the verdict was excessive. There was testimony to show that respondent’s arm was considerably shortened by reason of the accident; that it was partially paralyzed; that it is very doubtful if the defect can be remedied by an operation; that he cannot perform the duties of teamster, and that therefore his earning capacity is greatly decreased. Under the circumstances we cannot say the verdict-was éxcessive.

The judgment and order appealed from are affirmed. Costs awarded to respondent.

Budge, C. J., and Rice, J., concur.