Galvin v. Pierce , 72 N.H. 79 ( 1903 )

The plaintiff's duty was "to dig around rocks that were to be taken out and to attach chains thereto, so that they could be hoisted by a steam crane." Rombeau had charge of the defendant's work as boss, "which included . . . the operation of the crane." At the time of the accident the plaintiff's duty had been performed; he had attached the chain. Rombeau was in the execution of his — the operation of the crane. The stone had been pulled out, and lowered to stop its swinging. The next operation in Rombeau's work was the raising of the stone. "The plaintiff then told Rombeau that the chain was not right on the stone, that it was not safe, and asked Rombeau to wait until he fixed it. The plaintiff took hold of the chain, but Rombeau immediately remarked to the engineer, ``Go ahead; the chain is all right.'" The engineer hoisted on the stone, and the chain caught the plaintiff's hand and injured it.

If the defendant is liable for Rombeau's negligent operation of the crane, the plaintiff cannot recover without establishing Rombeau's negligence as the cause of the injury and his own freedom from fault. Whether the case contains evidence upon which these propositions could reasonably be found in favor of the plaintiff, may be open to doubt. But assuming that there was competent evidence for the jury upon these issues, a verdict might be found against Rombeau, or against the defendant if the defendant had personally performed the acts charged as negligence in Rombeau. The right of action in such case would not be affected by the fact that the plaintiff was a workman under Rombeau, or an employee of the defendant; but the action would be based upon the general duty, resting upon every individual in the conduct of his lawful business, to abstain from the careless injury of others. Nashua Iron and Steel Co. v. Railroad,62 N.H. 159, 161. If the plaintiff were a stranger, — an innocent third party injured by the negligent operation of the machine, — it would be immaterial whether the actual operation was in the charge of the defendant in person or in that of his employee or agent. The rule respondeat superior would apply. As to third persons, the act of Rombeau would be the act of the defendant. Qui facit per alium, facit per se. But it appears from the plaintiff's case that both he and Rombeau were the defendant's servants. The plaintiff's action, therefore, is not founded upon the maxim respondeat superior, but upon an alleged breach of duty owed by the defendant as master to the plaintiff as his servant. The mutual rights and duties of the master and servant are usually regarded as flowing from the contract for service. Whether the reciprocal rights and duties of the relationship depend upon the stipulations of a contract, or upon rules of law adopted as matter of public policy upon grounds of reasonableness, is not material. The general principles governing the relationship are well settled. The master is bound to reasonable care to provide the servant with suitable instrumentalities for the work. This includes place, machinery, associates in the work, and, where necessary, suitable rules and regulations for its conduct. McLaine v. Company, 71 N.H. 294.

Being guilty of no want of care in furnishing or maintaining these instrumentalities, the master is not liable if injury otherwise results to the servant. If to render the place safe it is reasonable a mechanical notice of intermittently recurring danger to the employee should be provided, it is the duty of the master to exercise care to provide and maintain some device for that purpose, as the bridge guard upon railways. If such care has been exercised, the master is not liable if for some other cause in a particular case the device fails to effect its purpose. Hardy v. Railroad, 68 N.H. 523. So if for the servant's safety it is reasonable that some person should be provided to give a warning from time to time, the master, having exercised care to provide a suitable person, is not liable if in a particular instance the warning is not given. McLaine v. Company, supra. In short, the master is not an insurer of the servant's safety. One obligation of the master is to exercise care to provide reasonably competent persons to engage in the work. If this duty has been performed, he is not liable if one servant is injured by the negligence of another servant engaged in the common work. Either because such a rule has been considered reasonable as governing the relationship of the parties, or because, in the absence of an express contract, the parties must be understood to have made a reasonable one, including the reasonable stipulation that the servant will assume the risk of injury from the negligence of his fellows engaged in the common work, such assumption of risk is now a settled rule of the law of master and servant. As the master, as the law is now settled, is not liable for an injury resulting to one servant from the negligence of a fellow-servant in the course of their common employment, the question now arising for controversy in particular cases is whether the negligent person is to be regarded as a fellow-servant of the one injured. In this jurisdiction "the responsibility of the master is determined by the nature of the act in question, and not by a difference in rank or grade of service between particular servants." McLaine v. Company, 71 N.H. 294, 295. Accordingly it has been held that the master is liable where the negligent act in question was one which it was his duty to perform, although in fact performed by inferior servants (Jaques v. Company, 66 N.H. 482; Story v. Railroad, 70 N.H. 364, 368; Olney v. Railroad, 71 N.H. 427, 430); while in McLaine v. Company, supra, the master was held not liable for the negligent performance of a duty properly that of a servant, although the negligence in fact was the negligence of the foreman in charge of the work.

At the time of the injury Rombeau was directing the operation the crane. The operation of the crane was a part of his employment. The sole question presented by this branch of the case therefore is, whether the operation of the crane was work which might be committed to a servant; or whether its safe operation was a non-delegable duty of the master, owed by him to the plaintiff, of which he could not divest himself by employing another to perform it for him. There is no claim of any defect in the machine itself, or of incompetency in the engineer or Rombeau. The claim is as to the manner of operation, by competent persons, of a suitable machine used for the purpose for which it was designed. It is elementary that the master's duty does not extend to the operation of suitable machinery furnished by him to his servants. Fournier v. Company, 70 N.H. 629. "In working with a derrick, the foreman and his assistants are fellow-servants; and the master is not responsible to any one of them for the negligence of any other in the use of the materials and implements which the master has supplied." McKinnon v. Norcross, 148 Mass. 533, 537. In this case the loading of the stone into the car by means of the derrick was the common employment in which the parties were engaged. If Rombeau had himself handled the levers of the engine, it probably would not be suggested that the parties were not fellow-servants. But it is claimed that because Rombeau did not himself control the valves of the engine, but orally directed the engineer when to raise and lower by the crane, such directions constituted a part of the master's duty, because they were orders. If it is held that the servant acts as the representative of the master in giving the order in question, upon the ground of his rank and the extent of his control over others (the class of cases considered in the note to 51 L.R.A. 513, to which attention has been called at page 590), it necessarily follows that the negligent order in question is the act of the master. Similarly, under the doctrine of the cases by which the character of the act in question, as representative or otherwise, is determined by the nature of the act itself (note, 54 L.R.A. 33), if the order is given in the execution of any non-delegable duty devolved by law upon the master, such order is the act of the master; while if the order is merely part of the performance of a delegable duty, the order is the act of a servant for which the master is not liable. As the latter rule is the law here, decisions in jurisdictions where the former point of view (called the superior servant rule) prevails, as in Illinois and Missouri (51 L.R.A. 539, 540, 608, 614, and cases there cited), are not of value here, but are liable to mislead. "None of the courts, apart from those which apply the superior servant doctrine, predicate non-assignability of the duty of giving orders" (note, 51 L.R.A. 593), a result which naturally follows from the reason upon which the opposite doctrine is founded. It is doubtless true, as said in Hankins v. Railroad,142 N.Y. 416, 420, that "it frequently becomes very difficult to determine whether the particular act in any case is that of the master as such, or only that of a mere fellow-servant." But there is no difference in principle between a verbal act, an order, and any other act. The question is the same in either case, whether the act pertains to the duty of the master or the work of a servant. As the court continue in the case referred to (Hankins v. Railroad): "It is not a question as to the rank of the individual who gives the order or performs the act. The question is one as to the character of the order or act, whether it is one which is given or performed as an order or act of the master in his character as such, or only as an order or act delegated by the master to another and performed by such other as an employee." Hence it is generally held that negligence of a superior servant, even in giving orders whereby injury results, is not of itself sufficient to charge the master. Moody v. Company, 159 Mass. 70; Alaska Mining Co. v. Whelan, 168 U.S. 86.

Griffin v. Company, 67 N.H. 287, was a suit for injury resulting from the operation of a steam crane or derrick. In that case it appeared that when the load was ready to be raised the men arranging the load gave the signal to the engineer to hoist. At the time of the accident the plaintiff himself gave the signal. At this moment the defendants' superintendent called out to the engineer in a loud voice to hoist, whereupon the engineer started the engine quickly and injured the plaintiff. Whether the case disclosed evidence in the sudden interference and direction of the superintendent tending to establish that the order so given was an exercise of the controlling authority of the master, and if so, was the performance of a duty of the master, was not decided, because the fact that the injury was caused, not by negligence in the order, but by negligence in obeying it, rendered immaterial the question whether the order given was the master's act. Neither are the questions suggested now presented for decision. The order in question was not an interference with the conduct of the work of servants, by virtue of a general power of superintendence and control conferred upon Rombeau by the master. Neither was it given in the performance of any of the master's duties. It was a part of the work of operating a machine; a work which, upon all the authorities, may be delegated to a servant, and which in this case was specially imposed upon Rombeau. It is obvious that the operation of a steam crane or derrick will often, if not generally, require that some person in a position to observe the work should direct by signals or verbal orders the engineer in the control of the engine. Such person operates the machine as truly as the workman operates the axe or shovel in his hand. There is no logical ground which would require the master personally to operate the machine, which would not impose the same duty as to the tool. The legal principle by which the master's liability is determined in this case is the same as if the parties were loading stone upon a drag with crowbars. Fifield v. Railroad,42 N.H. 225, 228. If the careless handling of the bar raised the stone to the injury of one of the workmen, it would not be claimed that a right of action accrued against the common employer, even if the one handling the bar were in general charge of the work. In this case Rombeau raised the stone by a steam crane which was controlled by the engineer under Rombeau's directions. The raising of the stone through Rombeau's directions to the engineer was as much Rombeau's act as if it had been done by a bar in his hand. The movement injurious to the plaintiff was not made the act of the master because it resulted from the oral instruction of Rombeau to the engineer, and took effect through the engineer's intelligent obedience, rather than from the unintelligent obedience of the crowbar following his will silently exerted by the pressure of his arm and weight. The giving of such direction was a necessary part of the removal of each stone, and there is nothing tending to show that such operation of the crane was not the work of a servant, imposed upon Rombeau as a servant, whatever relation he might occupy as to duties imposed on the master by law. For the negligence of one in general charge of the work while performing the duty of a servant, the master is not liable to other servants engaged in the common employment. The test is, as before stated, whether the act complained of is an act which may be performed by a servant, or is one which the master is personally bound to perform and therefore cannot delegate. It is obvious that hoisting the stone was no more the personal act of the master than the attachment of the chain. McLaine v. Company, 71 N.H. 294, is decisive of the questions raised in this case.

Exception overruled.

CHASE, WALKER, and BINGHAM, JJ., concurred.