Brown v. People's Gas Light Co. , 81 Vt. 477 ( 1908 )

Powers, J.

Among the nondelegable duties which a master owes his servant, is that of providing and maintaining a reasonably safe place in which to work. But this rule does not require the master to supervise the merely executive details of the work as it goes along. These are acts of service, and are within the proper range of the servant’s duties. They may be delegated to a competent co-servant, and when, so delegated, negligence therein, though resulting in injury, will not support an action against the master. And it matters not whether the offending servant be a foreman, overseer, superintendent or a, mere fellow-workman; the result is precisely the same, the master is not legally responsible; for it is the character of the act in question which determines. So it is that when a master provides his servant'with suitable materials and instrumentalities to make safe the place, and a competent foreman to use and apply them, he fully discharges his legal duty, and the negligence of the foreman in the manner in which the appliances are used, or in failing to make use of them at all, will not establish liability on the part of the master. Many cases support this rule and illustrate its application. Thus, in Davis v. So. Pac. Co., (Cal.) 35 Am. St. Rep. 133, the plaintiff’s intestate was a section-man on the defendant’s railroad, and was acting under a foreman named Bresnahan. By direction of the latter, he ran a hand-car onto a siding to clear the main line for an approaching train, — Bresnahan setting the switch for that purpose. Bresnahan having failed to close the switch, the train took the siding, collided with the hand-car, and killed the intestate, who was at work under the ear making some unimportant repairs. It was held that it was the duty of the company to provide a suitable switch, and competent servants to operate it; and that when it had done so, its duty toward the intestate was fully performed. That the duty violated did not relate to the place of work, but to the negligent use of an appliance or instrumentality which was proper and suitable for the purpose for which it was furnished, and that such use of it was simply a detail of the work or management of the business, and that Bresnahan was a fellow servant. A recovery against the company was denied.

Again, in Kelley v. New Haven Steamboat Co., 74 Conn. 343, 50 Atl. 871, it was held that a ship-owner, who had furnished a proper fender to be used, when necessary, in making the boat fast to the wharf, was not liable to one of the crew for the negligence of the mate in failing to use the fender, whereby he was injured; and that it was not a personal duty of the company to see to it that the fender was actually made use of. The same rule was applied in Tilley v. Light & Power Co., (N. H.) 67 Atl. 946. There the plaintiff was engaged in cleaning out a gas-main under the direction of a foreman who had charge of the defendant’s gas department. The main was provided with valves which, if closed, would cut off the flow of gas through the main. Through the neglect of the foreman to close these valves, an explosion occurred which injured the plaintiff. It was held that the operation of the valves was an act of service purely, and the negligence that- of a fellow servant. The court 'says: ‘ ‘ The defendants, having provided proper appliances for securing safety to their employees, were not chargeable with the nondelegable duty of properly operating them. They were at liberty to intrust the operation of the appliances to any of their employees, provided only they exercised ordinary care in selecting the employee; and it is not contended that they failed in this respect in this instance. At best, so far as appears by the testimony, the acts required to secure safety of the place were mere acts of service which the defendants might properly delegate to their employees. The plaintiff’s position is . not strengthened to any degree by attributing his injury to want of safety in the place, for such course leads to the same result, namely, that the negligence was that of a co-employee of the plaintiff, for which the defendants are not responsible.”

Cases much like the one' in hand are not wanting:

In Zeigler v. Day, 123 Mass. 152, the defendant was a contractor engaged in the construction of a sewer through the streets of Cambridge. The plaintiff was at work for him excavating a trench through soil more or less sandy, under the direction of one Winning, who had charge of the work as superintendent, and whose skill and competency were admitted. For the safety of the men in the trench, it was necessary, in some places, to shore up the sides. The necessity for this, as well as the proper mode of applying the safeguards was, from the nature of the case, left to be determined by the superintendent as the work progressed. There was no evidence that the defendant failed to furnish sufficient and suitable material for the construction of the required safeguards, or that he was chargeable with any specific personal neglect or knew of the cause of this injury, though he was occasionally present as the work went on. In granting a non-suit, the court said: “In the case at bar, the work was committed to the supervision of a skilful and competent superintendent; it required for the protection of the men the frequent use of temporary structures, the location and erection of which, as the digging progressed was a part of the work in which the superintendent and the men under him were alike employed, and for the preparation of which, as in case of the scaffold of the mason or the carpenter, the master is not liable, unless there is something to show that he assumed it as a duty independent of the servant’s employment.”

In Floyd v. Sugden, 134 Mass. 563, the plaintiff was engaged in uncovering a penstock belonging to the defendant under the direction of one Gilman, who had full charge and control of the premises and the work. A trench had been opened up to get at the penstock, and while at work therein, at the bottom of the trench and on the top of the penstock, the latter gave way, and the sides of the trench caved in upon him and caused the injuries complained of. It appeared that the trench was dug in very sandy soil, and the evidence tended to show that the sides ought to have been shored up. No shoring was used, and none specifically furnished. But the evidence tended to show that there was an abundance of suitable materials belonging to the defendant within a few rods of the place off the accident, — though this was contested. “If the defendant,” says the court, “furnished the materials, the appliances, for doing this, [shoring the trench] the use and application of them, according to the exigencies of the work, was the duty of the servants engaged in the work, unless specially assumed by the master. Gilman, as superintendent of the work, and the plaintiff, as a laborer upon the work, were fellow servants and the duty of Gilman in using the means and appliances provided for safely and properly carrying on the work was that of a servant engaged in the same business with the plaintiff, even if he had acted as a representative of the master in furnishing such means and appliances.”

In Dube v. Lewiston, 83 Me. 211, 22 Atl. 112, the plaintiff was engaged with others in digging a trench for a sewer. No shoring was used to support the sides of the trench, and it caved in and injured the plaintiff. The construction of the sewer was under the general supervision of the street commissioner, but the crew in which the plaintiff was at work at the time of his injury was under the immediate direction of one Cloutier, as' foreman, — the street commissioner incidentally inspecting the work from time to time as it progressed. Thirty rods away was deposited a quantity of lumber designed to be used for shoring, which was suitable and available for the purpose. At the time of the accident, the commissioner was not present, and the work was in the sole charge of Cloutier. Nothing had been disclosed before the. work commenced indicating a necessity for any mechanical contrivance to protect the workmen. The location and erection of any such-structures necessarily devolved upon the workmen acting under the direction of. the foreman, as the digging progressed. The duty of determining when the exigency of the situation required such protection had not been specially assumed by the commissioner. It was held that the commissioner discharged his duty when he assigned to the work an experienced and competent foreman and furnished him with suitable and sufficient materials for any appliances necessary for the safe conduct of the work; and that the use and application of such materials formed a part of the duty of the workmen; and if Cloutier’s failure to shore up the trench where the dirt caved was negligence, it was the negligence of a fellow servant.

In Berquist v. Minneapolis, 42 Minn. 471, the plaintiff was digging a ditch for a water pipe, under the general control of a foreman employed by the city. In carrying on the work, it became necessary to shore up the walls of the ditch. This was done by planking the sides and bracing these planks by timbers extending across the ditch. This work was done by the men as occasion required. Suitable material was provided for that purpose. At the time of his injury, the plaintiff was shoveling in the ditch at a point where it was some six feet deep. Some of the shoring was then in place, and while further work was being done to hold the earth in place, the shoring fell in, causing the injury complained of. The negligence relied upon was in the manner in which the curbing was done. It was held that this was the negligence of the plaintiff’s fellow servants, and that the city was not liable.

Sometimes the same result is reached in such eases by saying that the safe place rule does not apply where the prosecution of the work itself makes the place and creates its dangers. O’Connell v. Clark, 48 N. Y. Supp. 74; Cleveland, C. C. & St. L. Ry. Co. v. Brown, 73 Fed. 970; Norman v. Southern Ry. Co., (Tenn.) 104 S. W. 1088. But it seems to us more logical to put the ease upon the broad ground that the master has fully complied with the safe place rule when he has provided against such dangers as may reasonably be apprehended by furnishing the servant with the means of protecting himself. Durst v. Carnegie Steel Co., 33 Atl. 1102. This puts the determination of the question of liability upon its true ground, — the character of the act or omission which caused the injury. It properly differentiates the duties of the master from those of the servant. It makes the foreman a fellow servant because he has exhausted his functions as the alter ego of the master when he has provided the means of protection, — and at that very point he takes up the functions of a fellow laborer. See Church, Kerr & Co. v. Callaghan, 155 Fed. 397; Rocco v. Gillespie Co., (N. J.) 64 Atl. 117; and the instructive note to LaFayette Bridge Co. v. Olsen’s Admr., 54 L. R. A. 1.

These cases are in harmony with our staging cases, — Lambert v. Pulp Co., 72 Vt. 278, and Garrow v. Miller, 72 Vt. 284,— and under their authority the defendant’s motion for a verdict should have been granted. This defendant was engaged in laying a gas main in the city of Butland. The plaintiff was a shoveller employed on the job. At the time and place of the accident here involved, a ditch had been excavated to the depth of five or six feet, which was some eighteen or twenty inches wide at the bottom, and somewhat wider at the top. The dirt from this ditch had been thrown up on the east side. The soil was of different kinds in layers, with what is described as “blue gravel mixed with cobble,” beneath which was a layer which looked light and hard, but which became, as the workmen stood in it, soft and wet. The foreman in charge of the work was one Miles, whose competency was not questioned and who was under the general authority of the defendant’s superintendent, who was occasionally present as the work went on, but not at the time of the plaintiff’s injury. One Shelvey was the man who calked the joints of the pipe after it was laid in the ditch. Before the pipe was laid, it was necessary to grade properly the bottom of the ditch, and at the points where the joints of the pipe came, to dig out bell holes, — to give the calker sufficient room to use his arm in tamping the joint. The bell holes were made by digging out the sides and bottom of the ditch four or five inches. At the time of his injury, the plaintiff was directed by Miles to go into the ditch and dig out a bell hole, and to hurry about it so that the joint could be calked before night. The walls of the ditch were not shored up, though the defendant’s superintendent testified (and this was not in any way contradicted) that the defendant supplied planking and bracing timbers tó protect dangerous places, if any occurred. The plaintiff entered the ditch pursuant to Miles’ order and began the work assigned him. While so engaged, he encountered a stone in the bank, and while digging around it to remove it, the east bank caved onto him and caused the injuries herein sued for. After the plaintiff went into the ditch a;ud before the bank caved, a crack appeared in the dirt thrown up from the ditch running along parallel with the ditch, to which the calker called Miles’ attention, suggesting that the bank ought to be braced to prevent caving. Miles replied in substance that it would stand long enough to get the joint calked, and gave the plaintiff no warning. The bank caved along this crack.

It is urged that the foreman’s knowledge of this crack and the plaintiff’s ignorance of 'it save the case for the plaintiff, on the ground that it became the duty of the master to warn the servant of a danger known to him but unknown to the servant. Such is not the case. The danger was not, in a legal sense, latent. The crack was not so much the source of danger as it was the manifestation of it. But in any view, it was in character obvious, though unseen by the plaintiff. The duty to warn is coextensive with the duty to exercise care. If it was the duty of the master to protect the plaintiff from the danger which threatened, it was his duty to warn him of the imminence of the danger indicated by the crack; otherwise, not. So it comes back to the question hereinbefore discussed. However great the moral obligation resting on the foreman to warn the plaintiff, his fellow laborer, he did not, in his neglect to do so, represent the defendant, — -for the master’s duty had been fully performed. The omission of the foreman in this behalf, like his omission to make use of the shoring, was his own, and not that of his master, — an omission which comes within the fellow servant rule. Anderson v. Winston, (Minn.) 31 Fed. 528.

The instruction to the effect that it was not the duty of the plaintiff, when ordered into the ditch, to delay the work and make an examination of the surroundings to see if there were any indications of special danger, was inapplicable, as no such indications had then appeared and such an examination would have discovered none. The other exceptions have been sufficiently covered.

Judgment reversed and judgment for the defendant to recover its costs.