DocketNumber: No. 4095
Citation Numbers: 5 Alaska Fed. 218, 297 F. 991
Judges: Gilbert, Hunt, Rudkin
Filed Date: 4/7/1924
Status: Precedential
Modified Date: 1/13/2023
(after stating the facts as above).
The defendant had a store and a warehouse in the town of Cordova, Alaska. The plaintiff and Frederickson were both in the defendant’s employment, and were fellow servants, and both were hired and paid by the defendant. Frederickson was in charge of the warehouse, and his duty was to manage and direct the movement of goods therefrom. The plaintiff was the driver of the defendant’s delivery wagon, and he was engaged in delivering goods to and from the warehouse and from the store to the defendant’s customers. Frederickson had no authority to employ or pay or discharge the plaintiff. Taking the testimony in its aspect most favorable to the plaintiff, it goes no further than to show that on. the day on which the injury occurred both Frederickson and he were engaged in the operation of delivering certain goods from the warehouse to the store, and that in selecting-the goods and loading the wagon the plaintiff was under Frederickson’s directions. No charge was made, nor was proof offered to show, that the defendant had failed to supply the plaintiff with safe appliances for his work. The whole case for the plaintiff rests on allegation and proof that the wagon was overloaded by Frederickson.
The plaintiff, in this court, relies upon the proposition that the defendant failed in its duty to furnish him a safe place in which to work, and that the duty was nondelegable,
In the case at bar the trial court was of the opinion that the decision in Kreigh v. Westinghouse & Co., 214 U.S. 249, 29 S.Ct. 619, 53 L.Ed. 984, recognized principles inconsistent with the Wheelan Case, and with New England R. R. Co. v. Conroy, 175 U.S. 323, 20 S.Ct. 85, 44 L.Ed. 181, and other prior decisions of the Supreme Court. We are unable to agree with that view. In the Kreigh Case there were two charges of negligence, one that the employer had furnished a derrick with only one guide rope attached to the end of the boom, for the purpose of hauling it back and forth or steadying its operation, whereas there should have been two; the other charge was negligence in operation in that the men operating the boom swung a bucket attached thereto against the plaintiff without giving him any signal or warning. The court held that for the failure to furnish a proper derrick the employer would be liable, but that it was not liable upon the second charge of negligence, that being the negligence of fellow servants. The court, while ruling that a duty was imposed upon the master to furnish safe appliances, which he could not delegate to another and escape liability on his part, proceeded to say: “Nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the neg
In the case at bar there can be no question but that the defendant provided the plaintiff a reasonably safe place in which to work and safe appliances to work with, and no complaint is made that Frederickson was not a competent servant. If the place in which the plaintiff worked — that is to say, the wagon — was rendered unsafe, it was the result of a coservant’s negligence in the progress of the work, and a result for which the defendant cannot be held liable. The defendant had done all that could reasonably have been required of it. It was not an insurer of the plaintiff against Frederickson’s negligence. The work in which the plaintiff was engaged was simple and ordinary, and not of that complex or dangerous nature which necessitates the establishment of a set of rules for the protection of employees. Frederickson was not in charge of a distinct division of an extensive and complicated business. Nor was he selected by the defendant to superintend work which without supervision was dangerous. It is not claimed that he possessed superior knowledge of the proper method of loading wagons, or had better opportunity than had the plaintiff of observing the perils of the latter’s employment. Presumably his knowledge was inferior to that of the plaintiff,who had driven the defendant’s delivery wagon for more than five years.
The fact that Frederickson sustained the relation of foreman to the plaintiff is not controlling. Liability in such a case does not depend upon the grade of service of a coemployee, but upon the character of the act itself and a breach of a positive obligation of the master. B. & O. R. R. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; Consolidated Interstate-Callahan M. Co. v. Witkouski, 249 F. 833, 162 C.C.A. 67; James Stewart & Co. v. Newby (C.C.A.) 266 F. 287. And if a negligent manner of doing a work makes a place less safe, that is one of the risks which
The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. .