Allen v. Standard Box & Lumber Co. , 53 Or. 10 ( 1908 )

Opinion by

Mr. Chief Justice Bean.

1. The motions for nonsuit and for a directed verdict were properly overruled. They were grounded on the theory that the foreman was a fellow servant with the plaintiff. It is the positive duty of a master to furnish his servant with reasonably safe machinery, instrumentalities, and appliances to work with, and by the use of ordinary care and diligence in making repairs to keep them in a reasonably safe condition, and he is liable for the negligent performance of this duty, whether he undertake to perform it himself or intrust it to another (26 Cyc. 1186: 12 Am. & Eng. Enc. Law (2 ed.), 959), unless the defects are such as arise in the daily use of the appliances and which ought to be and are ordinarily remedied by the workman, and to repair which proper and suitable materials are supplied (Cregan v. Marston, 126 N. Y. 568: 27 N. E. 952: 22 Am. Rep. 854; Johnson v. Boston Towboat Co., 135 Mass. 209: 46 Am. Rep. 458).

2. If, therefore, the accident by which plaintiff was injured occurred because of the failure of the hook tender to “touch up” the point of the hooks with a file, it was the negligence of a fellow servant, for whose conduct defendant is not responsible; but if the point of the hooks had become so worn that they could not be so sharpened, and it was necessary to send them to a skilled mechanic, it was the duty of the defendant to do so, and as it delegated that duty to its foreman, it is liable for his negligence in the discharge thereof. Corcoran v. Holbrook, 59 N. Y. 517 (17 Am. Rep. 369). It was the duty of the defendant to exercise ordinary care to make such repairs to the hooks as could not be made by the workmen, as was necessary to render them in a safe condition so as not unnecessarily to endanger the life or limbs of its employees, and that duty it delegated to the foreman, Mullet, who for that purpose occupied its place, and for whose acts it is liable.

3. The first instruction complained of is erroneous. By it the jury'were told, in effect, that the plaintiff and other persons working in the mill of defendant and engaged in the general operation thereof at the time of the injury to plaintiff were fellow servants, for whose acts the defendant was not liable, provided they were drawing a compensation approximately the same, and one was not in authority over the other, thus making the question of fellow servant to depend upon the compensation and rank of the employees, and not upon the character of the act performed by them. Mast v. Kern, 34 Or. 247 (54 Pac. 950: 75 Am. St. Rep. 580).

4. There was evidence given by the defendant which it claimed tended to show that the accident occurred because of the negligence of the hook tender or of the operator of the crane. Both of these men were mere operatives, charged with the performance of no positive duty which the defendant owed to the plaintiff, and were therefore fellow servants, for whose negligence the defendant was not liable; and yet, under the instruction as given, the jury could not have so treated them, unless it found from the testimony that they were receiving approximately the same compensation, and one had no authority over the other — a matter wholly unimportant and upon which there was in fact no evidence whatever.

5. It is claimed by the plaintiff that no proper exception was saved to the objectionable part of the instruction, and reference is made to a transcript of the stenographer’s notes accompanying the bill of exceptions, in support of this position; but the court certifies that the instruction was duly excepted to, and this is conclusive here.

6. The other two instructions, we think, correctly stated the law.

7. The instructions requested by defendant were properly refused. The first one leaves the question of fellow servant to be determined by the jury, without any rule for their guidance.

8. As to the other, the evidence shows that the foreman of the mill promised to have the hooks repaired, and therefore the subsequent use of them by the operatives relying on such promise would not constitute a defense in this case.

From this view of the case, it follows that the judgment must be reversed, and a new trial ordered.

Reversed.