Carlson v. Northwestern Telephone Exchange Co.

START, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff by reason of the defendant’s alleged negligence. Verdict for the plaintiff, and the defendant appealed from an order denying its motion for a new trial.

The case comes here upon a bill of exceptions, which does not purport to contain the evidence, but which does certify that upon the trial testimony was introduced tending to prove all of the allegations of the complaint and answer respectively. The bill of exceptions also contains a statement of certain facts which it certifies there was testimony to establish, if believed by the jury. From this statement, the allegations of the complaint, and the verdict, the following facts must be taken as established:

The plaintiff, on August 3, 1893, with some 80 other laborers- employed by the defendant, a corporation, was engaged in the work of excavating a ditch along Nicollet avenue, in the city of Minneapolis, in which telephone wires were to be laid. The work of making this ditch was in the charge of a foreman of the name of Purvey, who had control of the work and of all of the men engaged thereon, with power to employ and discharge them, and to direct them what to do and where to work. He was the supreme authority there present, and all of the men were subject to his orders in every particular, and no one present had any authority over him. The plaintiff had been employed on the work for about three weeks before the accident, and was not assigned to any particular portion of the work. The soil through which the ditch was excavated consisted of sand, with a top layer, about a foot in depth, of tough, hard material, which had been filled in over the natural surface. The excavation had been made and the ditch completed along several blocks without any curbing or artificial support of its sides, until, on the day the plaintiff was injured, it reached the street-railway track, when it became necessary to increase its depth some three or four feet. At this point of the work, and on the morning of the day named, Purvey, the foreman, observed that a crack in the soil existed, extending from the ditch near the railway track 16 feet, describing a semicircle and ending near the ditch, the most distant part of the crack being 4 feet therefrom. Thereupon it became necessary, in order to prevent the side or wall of the ditch caving down, to put in curbing *430 consisting of planks provided by the defendant, which were ample for that purpose. The work of putting the curbing in place was done by workmen other than the plaintiff, under the direction of the foreman. The curbing was in fact insufficient to hold the side of the ditch in place, and the complaint alleges that the walls and sides of the ditch were so negligently and defectively supported and braced that they were unsafe and dangerous, and a menace to the life and limb of the defendant’s employés; and that the defendant knew, at the time the plaintiff was ordered, as hereinafter stated, to work in the ditch at this point, that such walls were unsafe, and were liable to cave in and injure persons there working.

The plaintiff, while the curbing was being constructed, was at work in another part of the ditch, and took no part therein, and had no knowledge of the crack in the soil at the point where the curbing was placed. When it was completed he was ordered by the foreman to go into the ditch where the curbing was placed, and clean out the loose sand at the bottom, and, ignorant of the true character of the curbing, and not knowing that the place was an unsafe one, he obeyed the order, and commenced the work as directed, when a piece of earth constituting the side of the ditch inside of the crack mentioned settled down by a sliding movement under the curbing into the bottom of the ditch, catching the plaintiff, and breaking his foot and ankle. The foreman did not caution or advise the plaintiff as to the unsafe condition of the ditch at the place he was ordered into, but the plaintiff saw the curbing, and knew that it was placed there to prevent the ditch from caving in.

There were no exceptions taken upon the trial of the action save those relating to the giving and refusing to give certain instructions to the jury by the trial court, and the assignments of error are limited to such exceptions.

1. The defendant’s counsel, by their assignments of error 2 and 3, raise and discuss the question whether, upon the facts as they appear from the record, the plaintiff must be held to have assumed the risk of working in the ditch in the condition in which it was.

In performing the duties required of him, the plaintiff was bound to take notice of the ordinary operation-of familiar natural laws, *431 and govern liimself accordingly; and he must he held to have assumed the risk of such defects and dangers in the place assigned to him in which to work as were open and obvious, and must liavebeen known and appreciated by him. Smith v. Tromanhauser, supra, p. 98, 65 N. W. 144. But the defendant’s special requests for-instructions to the jury upon which its assignments of error 2 and' 3 are predicated were properly refused, for the reason that they assume as a matter of law that the defects and dangers of the place into which the plaintiff was ordered were obvious, and therefore presumed to have been known, appreciated, and assumed by him. Error cannot be presumed, and, in the absence of the evidence from the record, it must be assumed that the question whether the dangers and defects were obvious was, under the evidence,, a question of fact for the jury. It was clearly so if, as the record! states, the evidence tended to establish the allegations of the complaint and the facts recited in the bill of exceptions.

2. Assignments of error 1, 4, 5, 6,- 9, and 10 present the question whether the foreman, Purvey, in ordering the plaintiff into-that part of the ditch where the curbing was placed, acted as the representative of the defendant, and in its place, or as a fellow-servant of the plaintiff.

The trial court instructed the jury that in the work of excavating and constructing the ditch, including the curbing, the foreman was the fellow servant of the plaintiff, and that the defendant was not liable for any neglect of the foreman in this respect.. But the jury were further instructed that it was the duty of the defendant to use ordinary care to protect the plaintiff from unusual risk, and that whatever the foreman did or failed to do in-this respect was the act or omission of the defendant, and, if he failed to exercise such care, his negligence in the premises was that of the defendant; that unless the foreman knew there was-unusual danger to the plaintiff in working in the place assigned him, — something which would not occur in the ordinary course-of digging ditches, — the plaintiff could not recover; but, if the-foreman did know, when he ordered the plaintiff into the ditch, that its walls were unsafe, dangerous, and liable to cave in and injure the plaintiff, and did not warn him, the defendant would be liable. These instructions were substantially repeated one or- *432 more times, and the defendant’s exceptions thereto were in these words: “We except to those portions of the charge hereinafter stated separately, that is to say, to that portion which, in effect, stated that the master was hound to use ordinary care and diligence to protect the servant from unnecessary risks, and that Purvey was vice principal for that purpose. It is that feature there, making him vice principal.” Also that, “if Purvey knew of unusual danger, and did not" warn the plaintiff, defendant is liable. I want to get at the same purpose, — that Purvey was vice principal.”

The defendant’s first contention is that the court erred in giving the instructions, because the record fails to show that the foreman knew of the unsafe condition of the ditch, or that the order to work in the ditch at the point where the accident occurred was the proximate cause of the plaintiff’s injury. If it be true that the evidence on the trial did not establish these facts, the question cannot be here reviewed, for two reasons: The record does not contain the evidence, and the exceptions do not raise any question as to the sufficiency of the evidence. It is manifest on the face of the exceptions that they were intended to and did raise only the question as to the correctness of the instruction.that the foreman in giving the order was acting as a vice principal. That it was not correct in this particular is the defendant’s second and principal contention.

This brings us to the important, and practically the only real, question presented by the record for our decision, viz.: Was the foreman discharging a duty which rested upon the defendant as master, when, under the particular circumstances and conditions of this case, he ordered the plaintiff into the ditch at the point where the accident occurred? If he was, the instructions of the ■court excepted to were correct; if he was not, the giving of them was reversible error. We answer the question in the affirmative.

The authorities upon the question when and under what circumstances an employé becomes, as to his fellow servants in a common employment, the representative of the master, are involved in a bewildering maze of inconsistency and injustice. In the case of Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020, this court had the question under consideration, and as a result of a review of its previous decisions, and upon principle, reached the *433 conclusion: “That it is not the rank of the employé, or his authority over other employés, but the nature of the duty or service which he performs, that is decisive; that, whenever a master delegates to another the performance of a duty to his servant which rests upon himself as an absolute duty, he is liable for the manner in which that duty is performed by the middleman whom he has selected as his agent, and to the extent of a discharge of those duties by the middleman, however.high or low his rank, or however great or small his authority over other employés, he stands in the place of the master, but as to all other matters he is a mere co-servant. It follows that the same person may occupy a dual capacity of vice principal as to some matters and of fellow servant as to others.” We adhere to this conclusion. It is correct in principle, and furnishes a just and rational test for determining whether the act- or default of an employé in a given case is that of a fellow servant or a vice principal. The decisive test is not the conventional title, grade, or rank given to the employé, but the character of what he is authorized to and does do. In the application of this rule or test to the facts of particular eases, wrong- and inequitable conclusions may have been reached; not, however, from the principle of the rule, but by taking too limited a view of the personal or absolute duties of the master in such cases. Applying the rule to the facts of this case, it is clear upon principle that the foreman, Purvey, in ordering the plaintiff into "the ditch at the point of the accident, must be regarded as a vice principal.

While the employé assumes for himself the ordinary and obvious dangers of the work or business in which he engages, yet the master is bound to use ordinary'care-to warn and protect the employé from unusual and unnecessary dangers and risks. If the nature and magnitude of the master’s work, whether it be that of construction or otherwise, and the number of men engaged in its execution, are such that the exercise of ordinary care for the safety and protection of the workmen from unusual and unnecessary dangers requires that they be given reasonable orders, and that they be not ordered from one part of the work to another, without warning, into places of unusual danger and risks, which are not obvious to the *434 senses and known to them, but which might be ascertained by the master by a proper inspection, the. absolute duty rests upon the master to give such reasonable orders. Considerations of justice and a sound public policy impose this duty upon the master as such, which he cannot delegate so as to relieve himself from the consequences of a negligent discharge of it. Where a large number of men are employed upon the same work, it is essential that reasonable orders, regulating their conduct, and assigning to them proper places in which to work, should be given. It is the duty and the right of the master to give orders and direct the places where his servants shall work. Their duty is instant and absolute obedience, unless it be obvious to them that such obedience will expose them to unusual dangers. Dispatch, discipline, and the safety of person and property in the execution of work imperatively require that the master should order and the servant obey. It would be practically impossible to carry on a work of any magnitude on any other basis. A workman, when ordered from one part of the work to another, cannot be allowed to stop, examine, and experiment for himself, in order to ascertain if the place assigned to him is a safe one; and therefore, in obeying the order, while he assumes obvious and ordinary risks, he has a right to rely upon a faithful discharge of the master’s duty to use ordinary care to warn and protect him against unusual dangers. Any rule or doctrine which deprives the workman of this right and protection when the master delegates the power and duty of giving such orders to a subordinate, no matter how high or low Ms rank or grade, is unsupported by reason, violates all considerations of justice, and is not supported by the weight of authority.

In the present case the foreman, Purvey, was the supreme authority in charge of the work, with power to give all orders directing the places where the employés should work, and all reasonable and necessary orders to secure their safety, which orders the plaintiff was bound to obey and did obey, and he was injured by reason of the negligence of the foreman in knowingly ordering Mm into a place of unusual danger without warning him of the risks incurred in obeying the order. In giving such order, under the special facts of this case, the foreman represented the master, the defendant.

*435 3. Assignments of error 7 and 8 rest upon a misconception of the trial court’s instruction. The instruction complained of was “that the accident having occurred is prima facie evidence of the fact that it was unsafe”; that is, the curbing. If the instruction referred to the curbing, and cannot fairly be construed as an instruction to the effect that the happening of the accident was prima facie evidence of the'defendant’s negligence, it was correct. That the instruction referred to the curbing only is manifest from the language used, and it is apparent that it was so understood at the time, for the defendant’s only exception to the giving of it is in these words: “To that portion of the charge, in substance, that the evidence tended to show that the curbing was unsafe.”

Order affirmed. •