LINDVALL fl. WOODS.
LINDVALL tI. WOODS (Cflrcuft Court, D.
HABTER AND SEBVANT-DUTIIIB OJ!' THII MASTIIR.
The employer owes to the employe to use ordinary care to select and retain eom< petent'co.-employes, and not to sUbject the employe to the negligence of tellt fellow-workmen; also" to exercise ordiI\ary care to furnish a reasonably jlafe platie, for the employe to do his work in; alBo, to use ordinary care to disco';er any defent in the structure upon which the employe was required to go in perforwing his worl$. . . Ordinary care is that amount of care which an ordinarily prudent person would exercise under the lIame circumstances, and which ought reasonably to beobserved, taking into consideration all tbe exigencies of the particular service. '
3. B.l1dE-WHO ABE F'ELLOW-SEBVANTS. Fellow-workmen are infa common employtilent when each of them is employee) in a service or work of lIuch a kind that all the others, in the exercise of 'ogacity,oughtto be able to foresee, when accepting employment, that it may prot). , ablY expose them to the risk of injUry in case he la negligent.. 4. S.l1dE-WIIO IS VIOl'J-!'BINCIPAL. , A foreman of a gang, vested with the control and supervision ot a partiemlat work to be done, and with powers to .say riot only wbat .shallbe dOJl,e, but: how it .hall bedont;l, arid who hasfuU power and authority -to. pommand the. men, under him in tbeir work, and w1:len the work is under his practical direction and control, save and e](ceptas he may receive directions froin time to time from his employer, lUld ord\narily there is ,no one else present aUthorized to superintend and direct the work. ot the men, represents the employer, and la hiaV1oe-principal. and forhll negligenll8 ,the employer la responsible. . .
At Law:. S1uJ.w k Oray, for defendant.
Arctander k Arctander,for plaintiff.
NELSON, J., (charging jury.) This has been a very long and tedioull case, ·but it is interesting from the fact that many· important legal qUe&tions have arisen, aside from the general interest taken in the testimony with :reference to the facts. You have given it such patient attention that it does not seem to, me necessary to go very Jar into the details of the testimony. The counsel have very thoroughly and exhaustively presentedthe several theories upon which a verdict,ia asked at your hands. Now, what is the case, gentlemen? The plaintiff, a laborer, brings this action to recover'damages against the defendants for injuries ""hich .it is alleged he sustained by reason of the negligence of the defendants in the course ofhis employment; that iato say, he claims that the injuries he sustained .w.ere the natural consequence of the negligence of the defendants; thattheir negligence.was the proximate cause of his injury. It appears that. the defendants were contractors,-railroad contractors, principally,-and, in the spring of 1888 they had a contract to grade of the St. Paul & Duluth Railroad, somewhere about 1,0 or straightening the trackj,and in doing thia it was necessary to doconsid-erable grading outside of the old track., Upon this work were several gangs of men under foremen,-at le3.ilt twojone under the charge ofMahoney, (not a very hU'ge, gang,) the other, near Gladstone, under the charge .of Murdock. in which gllng the, plaintiff worked. The work to be
performed by Murdock's gang near Gladstone was to makea cut through a hill, and fill up several hundred feet of low ground, partially marshy; and the manner of doing this work was by extending, as fast as the excavation was made, .trestles, and filling in these trestles according to their height, and thus making the grade continuous. The plaintiff was employed the work a:bout the 2d of April, 1888. I might say that in doing this work the defendants under Murdock had men who worked in the pit, men who worked on the dump, and a man by the name of Johnson who was assigned to frame the bents of the trestle-work which was to be put up, and erect it, and who, with the aid of other laborers, was to place stringers- of different length upon these bents; that upon this tempol\lJ;y trestle-work, what is called a "Petler" car railroad track was to be constructEid, in order to bring out on it the cars, each of which contained aMuta cubic yard of dirt, excavated from the cut. The plaintiffclaimsJhathe was injured by the negligence of Murdock, who represented the company, in- setting him to work upon an insecure and unsafe structure, (this the erection of which Murdock had intrusted to Johnso11, an employe; that Johnson was an incompetent person for thl:l\fPil'K.jll.nd that he is entitled to recover for the injuries sustained by reason ·of that negligence. The defendants deny that there was any negligence on deny that Mr. Murdock, if the injuries resulted from his negligence, was a representative,-a vice-principal; also deny that Johnson was an incompetent person within their knowledge; and the defense urged is that, if there was any negligence, and the plaintiff was injured, it was either the negligence of himself or of his co-employes working with him. The issues as presented by the pleadings, affirming and denying the faots, as I have stated to you, are to be determined upon the evidence which has been introducedteilding to support the several claims, and the law as I deem it proper to give"you. You will thus see, gentlemen, that negligence is the gist ofthis action, and it may not be improper for me at this time to indicate to you what is negligence,-what is legal negligence. Negligence is defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the particular situation, or doing what such a person, under the existing circumstances, would not have done. That is the definition which commends itself to most courts as being concise and satisfactory. Now, this negligence being alleged, the burden of proof is upon the plaintiff, by the preponderance of the evidence, to satisfy you that there was negligence on the part of the defendants, or anyone who represented them. This negligence cannot be presumed; it must be affirmatively proven, and it is to be determined by you upon the preponderance of all the evidence. It is not sufficient that the plaintiff proves that he has sustained damage by reason of some' omission of the defendants; he must also prove that the defendants in such omission violated a legal duty or obligation which they owed the plaintiff by reason of the relation established between them of employer and employe. The defendants are not the insurers of the safety of the plaintiff. They <10 not guaranty abso-
LINDVAU, V. WOODS.
Iutely his safety, and it is necessary for the plaintiff to establish by evidence facts and circumstances from which it may fairly be inferred that his injury resulted from the want of some precaution which the defendants might and ought to have resorted to; and, in addition, the plaintiff should also show with reasonable certainty what particular should have been taken by the uefendants. To prove his case, so as to entitle the plaintiff to recover, he must satisfy you by the preponderance of evidence-Firat, of defendants' negligence in failing to perform some duty which they owed him; aecond, that the defendants' negligence was the proximate cause of the injury which he sustained; and you have then: what may be called, third, the question of the incompetency of Johnson,who, it is claimed, was a fellow-servant, and was, to defendants' knowledge, Incompetent for the discharge of the work which he was set to in connection with the plaintiff; and, if those points are resolved in favor of the plaintiff, then another question will arise. to which I will call your attention hereafter. Now. what is the proximate cause? For the plaintiff must prove that if he was injured, as claimed, the negligence of the defendants was the proximate cause of the injury. The proximltte cause of an injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have occurred; and it is claimed here that this injury was the natural sequence of the negligence of the defendants, without which it would not have occurred. This raises a question which it is necessary for me to instruct you upon, and that is, the duties of the employer (in this case the employers) and the duties of the plaintiff. The law imposes upon the defendants the duty to use ordinary care to select and retain competent servants or co-employes with the plaintiff, and not to subject him to the negligence of incompetent fellow-workmen; and also to exercise ordinary care to furnish a reasonably safe place for plaintiff to do his work, and a reasonably safe structure upon which plaintiff was required to go to do his work, such as is reasonably calculated to insure safety when doing his work; also to use ordinary care to discover any defect, if such exist, in the structure upon which the plaintiff was required to go in performing his work; to use ordinary diligence to see that the place where the plaintiff's work called him was in such condition as, from the nature of the work and of plaintiff's employment, he had a right to expect it would be kept; for the plaintiff had a right to assume that all reasoI).able attention would be given by the defendants to his safety, so that he would not be carelessly and needlessly exposed to risks which might be avoided by the exercise of ordinary care and caution. I say "ordinary care," and it is necessary for me to define what is meant by ordinary care. Ordinary care is defined to be that amount of care which an ordinarily prudent person would exercise under the same circumstances; that is, such care as, taking into consideration all the exigencies of the particular service, ought reasonably to be observed; and the claim here, you will recollect, gentlemen, is that this structure which has been exhibited to you in the models was insecure and unsafe, the bents and stringers
nor properly ti'ed,braced', and bolted, so as to render it reasonably safe, and that the defendants, through Murdock, their reprelilentative, as the plaintiff claimsi'faHed to exercise ordinary care and caution in making that trestle-work safe. If the defendants have exercised, or if the evidence shows to your satisfaction that the defendants exercised, all the care atld caution which' is imposed upon them for the safety of the plaintiff in doing his work, the law does not hold them liable for a defect in this trestle or structure which could not be discovered by the exercise of reasonable care; that is, even if this structure was insecure., unsafe, and defective, the law does not hold the defendants liable for any such defect,which was unknown to could not be discovered by tneinin' the exercise of reasonable care. Now, on the other hand, the plaintiff assumed certain risks by virtue of his contract of service, and the relation established between the defendants and himself. The plaintiffa!lBumed all the risks incident to the character of the work which he was employed to do, and, in the absence of any statute, (and we have none:jll'bur state relative to individuals or corporations, outside of railroads,rthere is included the risk of injury by the negligence of his fellow-workmen in the same common employment. The general doctrine is well settled that an employer is not lillble for any injury to an emby the negligellce of a co-employe in the &ame common employment. So it is:necessary for me to instruct you, who are fellowworkmen in the same common employment. Fellow-workmen are in a common employment when each of them is employed in a service or work Of such a kind, that all the others. in the exercise of ordinary sagacity, ought to be able to foresee, when accepting employment, that it may probablye:x:pose them to the risk in case he is negligent. I might say here thattbe theory of plaintiff is that Murdock was a vice-principal, as it is called,.......a substitute of the defendants in charge of that work,and that he was not a co-eulployej and that the rule which I have laid down to 'y<jU with reference to the assumption of risk on the part of the plaintiff does not apply Ito him, for he was not a co-employe of plaintiff. The duties imposed by law upon the defendants, which I have stated to you with regard to selection of workmen and a safe structure, cannotJbe delegated by the employer to anyone, whether a fellow-tlmplaya of the injured party or not, so as to exempt the defendants from all liability for injury sustained by the negligent exercise of these duiies.- The duties may be delegated, but, if this is done, the person to whom theYQl'El delegated, and to whom the execution of them are intrusted, becomes the vioe-principal or substitute of the employer, and, if he negligently performs them, and a workman of the common employment to whom; the master owes these duties is injured, he has a right of action for damages on that account from the common employer; in other words,the employer is responsible for the negligence of an employe who stands as his direct representative, invested with his own authorityover a particular business and over inferior employes, and the latter, when injured by such negligence, are not barred by the doctrine of fellow-employe, as I have stated it to you.
LiNDVALL tl. WOODS.
It is claimed, I say, on the part of the plaintiff, first, that Mr. Murdock was a vice-principal. Now when can a person be said or be called legally the vice-principal: of another, so as to make the employer responsible for his acts,-his negligent acts? In this case'it is for you to de" termine whether, as is claimed on the part of the plaintiff, Mr. Murdock was the representative of the defendants, and, if he was, whether the plaintiff has satisfied you,by the preponderance of evidence, that the injury occurred on account of his negligence. When a foreman of a gang is vested with the entire management, control, and supervision of a'particular work to be done, so as to say not only what shall be done, but how it shall be done, and he has full power and authority to cummand the men under him in the work, and the work is under his practical direction and control; save and except as he may receive directions from time to time from his employer, and ordinarily there is no one else present and authorized to superintend and direct the work of the men, then he represents the employer,-he stands for the employer. It is claimed that, within that principle, the foreman, Murdock, was the reP"' resentative of the defendants. And you will recollect, gentlemen, that testimony has been offered tending to show that Mr. Woods, of the firm of Woods & Lovejoy, one of the defendants here, had the superintendency of this 12 miles-10 or 12 miles-of road which was to be graded and built, and that occasionally, from time to time,-according to his own testimony, nearly every day, according to the testimony of others, twice or three times a week,-he visited these different gangs of meo, at least this gang under the charge of Murdock. Now, in regard to the claim made by plaintiff that Murdock was a vice-principal, if the preponderance of all the evidence satisfies you that the defendants delegated to Murdock, although he is called "foreman," the care and management of the work to be performed. at this cut, and the work to be performed by this gang was under the practical direction and control or Murdock, subject only to the directions given by him personally, as the local foreman, from time to time by the defendant Woods, and to the latter's oversight and examination, when he occasionally, or two or three times a week, came to the work, and if Murdock had the authority to employ and discharge the men working there in his gang, and had direct control of their movements so far as concerned the work in his charge, and that ordinarily there was no one else present and authorized to superintend and direct the work or the laborers, then he represented the defendants. "He stood," as was expressed by a distinguished judge, "in their shoes, whether they fit him or not," and his neglil!;ence is so far the defendants' negligence that they are responsible to the plaintiff on account of it to the extent he was injured in consequence thereof; in other words, if this work required care and oversight for the proper performance thereof, and the evidence satisfies you that Murdock for that purpose was placed in charge of it, and he was clothed with the duty of supervising and managing the work, and had the power of control and direction over the gang of men under him, including the plaintiff, in the details of the work, find the plaintiff and others were required to obey his commands,