Poor v. Madison River Power Co.

MR. JUSTICE SMITH

delivered the opinion of the court.

1. It is suggested by the respondents that the complaint shows that the relation of master and servant did not exist between the defendants and the deceased. We find no express allegation in the complaint that deceased was the servant of the defendants, bnt we do find the averments that deceased was “employed and hired by the defendant Madison Eiver Power Company,” and was “employed” by the company, and was “engaged in the performance of his duty under his employment ”p and, as the gravamen of the whole complaint is that it was the duty of the defendants to use ordinary care to furnish the deceased a reasonably safe place in which to work, we think the complaint is sufficient in this particular.

2. But it is insisted that, if the complaint is sufficient in this regard, there was a fatal variance between the allegations thereof and the proof, in that the evidence shows that deceased was not a servant, but an independent contractor. The following pertinent quotation from 1 Shearman & Eedfield on Negligence, sections 164, 165, we take from the brief of counsel for the respondents :

“Sec. 164. Although, in a general sense, every person who enters into a contract may be called a ‘contractor,’ yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details. The true test of a ‘contractor’ would seem to be that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. # * #

“Sec. 165. * * * If he submits himself to the direction of his employer as to the details of the work, fulfilling his wishes, not merely as to the result, but also as to the means by which that result is to be attained, the contractor becomes a servant in respect to that work. * * * In most instances the distinction is easily observed. Thus one who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely according to his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor, and not a servant. The fact that such an employee is paid by the' day, or that, in all the work, he consults and defers to the wishes of his employer, makes no difference, although an express contract to pay by the job is always strong evidence that the relation of master and servant does not exist.”

It appears from the testimony that Davidson told McCabe that he wanted him to go out to the substation for the purpose of doing some work, and directed him to get another man to help him. In employing Howerton, McCabe acted as agent of the defendants. McCabe understood they were to be paid by the hour. The officers of the company pointed out what work was required. The materials were furnished by the company. The general plans were those of the company. In fact, the testimony shows that McCabe and Howerton submitted themselves to the control of the company and its officers in all the details of the work, and did not in any sense use their own means or methods, except in so far as they contributed to the work that special knowledge and experience possessed by them as carpenters, not possessed by the officers of the company. They were servants and employees, and not independent contractors. (Jensen v. Barbour, 15 Mont. 582, 39 Pac. 906.)

3. Reading the testimony of McCabe and Davidson in the light of what was said in Allen v. Bell, 32 Mont. 69, 79 Pac. 582, we think that Davidson was not a fellow-servant with deceased.

4. It is contended that the complaint does not state facts sufficient to constitute a cause of action, “in that it shows the proximate (or a proximate) cause of the injury to have been the act of Howerton, and it fails to show his freedom from negligence in the doing of the act.” The eases of Nord v. Boston & Montana Con. C. & S. Min. Co., 30 Mont. 48, 75 Pac. 681, Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871, and Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 PaC. 852, are relied upon. The quotation above is taken from the opinion of Mr. Commissioner Clayberg in the Nord Case,' citing Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21. But the pleader in this ease has complied with the general rule laid down in Kennon v. Gilmer. He alleges that deceased “was engaged in the performance of his duty”; that he “accidentally lost his footing and in an attempt to prevent his falling from said height to the floor below, and, not. knowing that the same was charged with electricity, threw his arm over the said wire”; that he “was inexperienced with electric wires, and did not know that the wire * * * was charged with electricity, and did not know that the said place where he was working was dangerous and unsafe because of the danger -of his coming in contact with wires charged with electricity”; that the defendants had knowledge and notice of said conditions and. negligently failed to inform deceased of them. We think this statement of the facts is a sufficient compliance with the rule, and that a formal allegation that deceased was free from contributory negligence was not necessary.

5. Appellant’s counsel contend that under the admissions in the pleadings and the undisputed proofs on the trial there was and is only one question in the ease, namely, whether Howerton was warned of the danger, and we are inclined to agree that this is the principal question involved. No complaint is made that the substation was not properly constructed, or that any of the appliances were defective or insufficient. It is alleged in the complaint, and tacitly admitted in the answer, that the wires were dangerous, or at least that wires charged with a high degree of electricity are liable to cause injury or death. The real grievance complained of is the failure to warn the plaintiff of the danger, inasmuch as he was ignorant of it. The defendants contended, and sought to prove, that the deceased was warned sufficiently so that he not only knew of the danger, but fully appreciated it. The question of the failure of the defendants to furnish approved or different appliances is not in the case. As we read the complaint, it charges that the place was dangerous, but that Howerton did not know of the danger or appreciate it, and that the defendants did have such knowledge and appreciation of the danger, and negligently failed to communicate such knowledge to the deceased. That the case was tried upon this theory is shown by the defendants’ answer and the nature of their evidence. The complaint in its general allegations of negligence is not very definite, certain or specific, but it is sufficient in that regard to withstand the attack made upon it in this court. A servant does not assume the risk of extraordinary dangers of which he has no knowledge or appreciation. (Hollingsworth v. Davis-Daly Copper Co., ante, p. 143, 99 Pac. 142; Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45.) We also think the complaint satisfies the rule laid down in Fearon v. Mullins, 35 Mont. 232, 88 Pac. 794.

6. As the case must be retried, we do not deem it proper to comment upon the testimony to any greater extent than to say that the case does not fall within the principle considered in McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40, Howie v. California Brewery Co., 35 Mont. 264, 88 Pac. 1007, or Olsen v. Montana Ore Pur. Co., 35 Mont. 400, 89 Pac. 731, but rather within the rules recognized in Forquer v. Slater Brick Co., 37 Mont. 426, 97 Pac. 843, and Hollingsworth v. Davis-Daly Copper Co., supra. It is reasonably certain that Howerton’s death was due to contact with the highly charged wire; and, if the jury believed McCabe’s testimony, they might have concluded that deceased was engaged in doing what he was directed to do by the defendants, and had no knowledge that there was any danger to be apprehended from touching the wire.

7. We cannot say, as a matter of law, that the evidence discloses contributory negligence, or any negligence, on the part of the deceased. (Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940.)

8. On the point made by the respondents that deceased assumed the risk of danger from the wires, we have only to call attention, in addition to the fact that deceased was a carpenter and not an electrician, to McCabe’s testimony as to what experience they had had with the outside wires, and what Davidson said with relation thereto.

Rehearing denied March 13, 1909.

9. It is not necessary to inquire to what extent a jury may disregard testimony. It cannot be said that Davidson’s testimony was uncontradicted or unimpeached. We think the cause should have been submitted to the jury.

The judgment and order are reversed, and the case is remanded for a new trial.

Reversed and remanded.

Mr. Chief Justice Brantlt and Mr. Justice Holloway concur.