,the views 'oftJie oqurt, given for:the defendant, and must be
TREADWELL GOLD MIN; CO.·: WHELAN.
NInth Cll'CUIt. October 2, 1894.)
(Circuit Court of L
In, pel'sonalinjurles it ltPpeared that plalntltr was one of employed ill defendant's mIne to break up rock ill the' or«fplt, trom wblch the'broken rock'wasdrawn, from'1lime to time, a lower level, at whIch the chutes wer" Closed by !:Illd ,a ,geJ1eral, manager,llnd. ,a supl¥'IJ1teIldent in charge of. several'\'V0rks belonging to It, and the.gaIlg to WhIch plaintitrl.leli:Higed'worked'tIti'der the dIrection of one F.,' It!'s 'bass, whose duties were to see that th,e men dId their work, to dlreetthem where to' 19: IWt.fy them. rock was to be drawn, tbrolJl;'h ;(he chutes, and be drawI!'t;hroughany chute. ThereiWMll, as to whether F. was authorized to emmen under him. Plalntil't; who! was at work ploy and ontheJtQpofla pUe ofl'oCkteovering the head of a chute, was injured by beIng .dtIUf,Il ,tl:1rpughtbechut,e with the rock. There wlUl, a,conflict O'f ()n the occasIon In q1,Iestlon, F.notU1e<l plaintitr thatth' (lhute to 'be prawn. Held,that it was properly lE1ft to the , or not F. was atelIow' sen'antof plaintitr. 2. The' queilitionof plaint:ll't's contributory neglIgence wall also properly left to. the jury. An to the jury to the etreet that if defendant, by a .standing rule' anyone to notify the men working about the chutes when a chute wall to be drawn, ,plaint:i.tr.' could not recover; unless defendan,t, W41ll glJIlty. of gro$il negligence ,Ill 'employing unsUitl'ble persons, was the of. suc'!1Instruction $gnered: the duty defendant owed to plalntl1;1', ,and the last branch Intro(luced an Issue not made by' ilie' pleadings; , but'such error was harmless to defendant.
'.',. " ," " " "
FOR JURY. ," '
4. SAME-GROss .AND SLIGFrT"NEGtIGENCE. Where reqhested the court to charge that plalntil't could not recover if the jury fOlln,d that bis injurIes were in any manner the result of wllnt of ordinary care on his It was not error for the court to modIfy such InstructIon by adding: "Unless the defendant was glJUty of gross negligence, and the plaintiff's negligence was silght."
In Errol'to District.CQurt of the United States for the District of Alaska. Action by Patrick Whelan against the Alaska Treadwell Gold Mining OolIlpany. Plaintill' recovered judgment, and defendant ' brings error. T. z. for plldntiff in error. Lorenzo S.' n. S'awyer, fQ1' error. ': I;Wd GILBERT, an4"IIA
.' Judge. o.Mion foririjUries'received bythe negligence of the defendant (plaintill' in
ALASKA TREADWELL GOLD MIN. CO.
error). The complaint alleges that plaintiff (defendant in error), on the 23d day of November, 1891, while in the employ of defendant as a laborer at its mine at Douglass Island, in Alaska, was severely and permanently injured by being drawn through the chute from the ore pit when the draw in the tunnel below was opened to load the cars used in conveying the ore to the mill; that this accident oc· curred without any negligence on his part, by the negligence of de· fendant. The answer admits that the accident occurred, but denies that plaintiff was injured to the extent charged, or that his injury was caused by the negligence of defendant, and alleges that plaintiff was guilty of contributory negligence. Upon these issues the cause was tried before a jury, which resulted in a verdcict in favor of plain· tiff for $2,950. There was but one witness introduced on behalf of plaintiff,-the plaintiff' himself. The defendant owned a mill, mine, and chlorination works. It had a general manager. It also had a superintendent or foreman in charge of each of its works. It had three shifts of workmen en· gaged at labor in the mine,-two in the daytime and one at night. Each shifthad separate bosses. A man named Finley was the shift boss at night, and upon this shift the plaintiff was at work when the injury was received.. The plaintiff's duty was to break rock, and get it ready to go through the chutes, to be loaded into cars for conveyance to the mill. He had been employed at that work for about six months prior to the accident. In a place designated as the "pit" the quartz rock blasted from the lodes was thrown where it was broken into pieces, and made ready for the mill. From this pit several chutes led downward into a tunnel, where there was a railroad track leading out to the mill, and on which cars were run to receive the broken rock from the chutes. The lower end of the chutes, which were several feet below the floor of the pit, had gates to be opened when the rock was to be drawn from the chutes into the cars. Plaintiff and one McCormick were working in chute No. 17, which was full of broken rock, and the rock was piled over it about 30 feet deep. On the top of this pile were large pieces of rock, which, on the night the accident occurred, the plaintiff and McCormick were directed, by Finley, to break. It was Finley's duty to direct when the rock from any particular chute was to be drawn. It was his custom to go into the pit, and notify the men when he was going to draw from the chute. There is a conflict in the evidence as to whether Finley came back that night after ordering the men to break the rock. The plaintiff testified that he did not. The jury must have found that he did not, or, if he did, that plaintiff did not -see or hear him. Within an hour after plaintiff commenced work, under Finley's orders, chute No. 17 was drawn, and plaintiff went through with the rock, and was injured. 1. At the close of the evidence the defendant moved the court to direct the jury to return a verdict for defendant upon the following grounds:
"First. That It appears from the testimony that the negligence, if any, which caused the accident to the plaintiff, and the consequent injuries. are the result of the negligence of a coemploye or fellow workman, Sam. Finley,
for whlcll :t;1l.e: Ilefendant Is not llable. Second. That it lJ,ppea...s from the ,1;11af the .plaintiffcontriblited to the accident hip1self by carelessly .and :Mgligelltly walking over the top or mouth· of 'the chute after he had Wlttnfng that rock Was to be drawn from there."
the motion.. Did the court err in refusing to instruct the jury to find a verdict for defeD.dliIlt? The first and most important question is whether Finley, the night boss of the shift of workmen employed at the mine, was. a ser-vant of the plaintiff. Finley's duties were to see that theiIlen did their work, to direct them where to work, and to notify them when rock was to be drawJ;l from the chutes. It was the duty ofplaillfifl to obey Finley's orderS. Finley was his boss. These questions are undisputed. There was a conflict in the testimony as to whether Finley was authorized to employ and discharge men at work under hini, or whether he had done so. Plaintiff testified that Finley employed him, and he knew' that Finley had discharged other men. Upon this state of the evidence the court submitted the question-'-as aqtiestion of fact-to the jury as to whether or not Finley was a fellow servaJ;lt, by the following instruction:
"The jury is instrllcted that the true test is whether the person in question is employed to do any of the duties of the master. If so, he cannot be regarded as the fellow servant, but is the representative of the master, and any negligence on his partin the performance of the duty thus delegated to him must be regarded as the negligence of the master. You have heard the testim9P-Y as to I!'inley's. authority and duties, and whe,ther or not he had any power to employ men or discharge them, or whether he simply acted under another man,who had the same power over him that was exercised over other laborers."
We do not· it necessary to discuss the various definitions of the general rules upon this. subject, nor to review the conflicting decisions which prevail in the different state courts in regard thereto. The instrlietion given by the court, which was not objected to, is within the announced by the supreme court of the United States as the governing rule in determining whether or not, in any given case, the injury wa,s caused by the acts of a fellow servant (Railroad. CO. v. Baugh, 14;9 U. S. 369, 13 Sup. Ct. 91.4); . by the circuit court of appeals in Railroad Co. v. Ward, 10 C. O. A. 166, 61 Fed. 927; and by this court in Co. v. Oharless, 2 O. C. A. 380, 51 Fed. 562. It .isOtruethat. Finley and the plaintiff were employed and paid by the Mme master, and were occasionally brought together in the same common "But it is by no means true that all persons who are in the employ of a common master are fellow serYants of each other,in the sense that one .of them is not entitled to recover ,from ,colllmon master for injuries caused by the negligence of another employe. Ever since the rule·fiJ:'st in Priestly v. Fowler WRl'l sent upon its devious way, there has not been a court in England OJ:' this country that has maintained theoontrary. All the labor of the courts since the rule was established at the outset has been in deterndning. its. principal limitations. * * * The true test, it is an employe occupies the position of a fellow seJ.'vant to anotneremploye or is the representative of the
ALASKA TREADWELL GOLD MIN. CO· .". WHELAN.
master, is to be found,not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant by which another employe is injured; or, in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master. The master, as such, is required to perform certain duties, and the person who discharges any of these duties, no matter what his rank or grade, no matter by what name he may be designated, cannot be a servant within the meaning of the rule under discussion." M:cKin. Fel. Servo § 23. The defendant is not released from liability by the fact that there were superior agents standing between Finley and the corporation, who had control and supervision over his acts. The supreme court of the United States has repeatedly declared that a master, in employing a servant, impliedly engages with him that the place in which he is to work. and the tools and machinery which is furnished him, or the instrumentalities by which he is surrounded, shall be reasonably safe, and that a failure to discharge this duty exposes the master to liability for injury caused thereby to the servant; that it is wholly immaterial how, or by whom, the master discharged that duty; and that the master's liability is not made to depend in any manner upon the grade of service of a coemploye, but upon the character of act itself, and a breach of the positive obligation of the master. Hough V. Railway 00., 100 U. S. 213; Railroad 00. V. Herbert, 116 U. S. 648, 6 Sup. Ot. 590; Railroad 00. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914; Railroad 00. v. Daniels, 152 U. S. 684, 14 Sup. Ot. 756. These general principles have been universally followed by this court. Railroad Co. v. Oharless, 2 O. O. A. 389,51 Fed. 562; Pacific 00. V. Lafferty, 6 O. O. A. 474,57 Fed. 536; Railway Co. V. Novak, 9 O. O. A. 629, 61 Fed. 582. It was the master's duty, in the present case, to provide a reasonably safe place for its employes to work, to keep the chutes through which the quartz rock was -drawn in reasonably good condition and repair, to employ competent persons in the management thereof, and to notify the workmen engaged in breaking rock in the pit when the rock in the chute would be drawn. This latter duty it delegated to the night boss, Finley. Plaintiff, by his contract of service, did not assume the risk that this duty would not be performed. In Ra,ilroad 00. v. Ward, supra, the court of appeals, in discussing a similar question, said:
"It is not material, therefore, that the switchman, who in this instance was injured, and the track repairers, whose negligence caused the injury, worked in the same yard, and for the same general purpose of maintaining and operating the railroad of the common employer. It was a duty which, under implied contract, the railroad company owed to the switchman, to keep the yard and tracks where he was employed to do his work-hazardous enough under the most favorable conditions-in a reasonably safe condition; and if the trackmen to whom the discharge of that duty was intrusted negligently left in the track, and between the ties, which they had recently been ballasting, a dangerous hole, which caused the injun' l'omplained of. their negligence was attributable to the plaintiff in error; and the case was properly submitted to the jury without reference to the question of responsibility for injuries caused by fellow serva.nts."
in some, of Ua facts Ran· 'Rali1t'oad Co., 109'U. 13.484,3 Sup. Ct.. 322; upon WhICh de· fertdtllntpnncipally relies. There the court held that a brakeman for hia train was a fellow servant withthe engineer ofanotheidrain, becaUSe, among things, "neither works under the or· derson ·tOntrolof the other." Here it is undisputed that the plaintiffdidwol'k under the of I!lnley, and was at all times sub· ject to his 'orders. Although the question-whether or not Finley employed: and discharged workmen that were under his control might not of itself be conclusive under the test laid down by the court, it was an important factor in determining whether or not he wlul,afellow servant with the plaintiff or the vice principal of the defeIldIUit. Ordinarily, the question whether the servant whose negligence caused the injury isa fellow servant with the injured persoll Iso. questionot'la.w; yet under all the .facts of this case and thelttw'applicable thereto it IS made clear that the court did not err irr,i!l'lfbmitting iHo the jury. It was the duty of the court to de· and give ;the rule as to the definitionoffel1ow servants as appli-eatile to the facts; and for'the jury to deterllline whether un· del' the lfacts·the case came within the definition. ",'Especially is this true in i Illl cases where, 'as here, there was a cohflict in the evidence as to some,Of' the facts. "The case shoUld not have been Withdrawn from unless the conclusion followed as matter oflaw that no recovery could be had upon any view which could be properlytakendf the facts the evidence tended toestablish." Texas Railway 00. v. Cox, 145!U. S. 606, 12 Sup. Ot. 90o, and authorities there cited; The cOurt did not err in subD1ititing the question of contributory negligence to the jury. This, perhaps, sufficiently appears from what has already been said upon the other branch of the motion, and but little need be added upon this point. It was the, duty of the jury, in deterfi:lining this question, to consider the surroundings in which the plaintiff was placed;. the noise of the drills near where he was at work; the fact that the top of the chute was completely covered over with rock to such a depth that it was difficult,.if not impossible, to tell where it was. Moreover, the mere fact that there was a conflict of evidence as to whether Finley notified the plaintiff when the rock was to be drawn from the chute made it the duty of the court, under propel' instructions, to question to the jury. Kane v. Railroad Co., 128 U. S. 91, 9 Sup. Ct. 16; Jones v. Railroad Co., 128 U. S. 443, 9, Sup. Ct. 118; Railroad Co. v. McDade, 135 U. S. 571, 10 Sup. Ct. 1044; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Rallwl:tYCo. 'V. Ives,144 U. S. 409, 12 Sup. Ct. Railroad Co. v. Amato, 14:4,p. S. 467, 12 Sup. Ct. 740;' Railroad Co. v. Jarvi, 3 C. C. A. 4:33, 53 'Fed. 70. ' 2. After defendant's motion was overruled, the defendant requested the the jury as follows:
"(2) To make the defendant liable in this case for the injury received by the plalntitt. the evidence m"!lst satisfy you that the defendant was guilty of negligence causing the injury to plaintiff; and if you find from the evidence that the company, by its general manager, or by its, superintendent
ALASKA TREADWELl, GpLD MIN. CO. t1. WHELAN.
of the .· men under him, dirllcted any one of the or workmen ot defendant to notify the men working. about the chutes in the pit whenever rock was to be drawn from the chutes into the train, and that this was a standing rule of the defendant company, then· your verdict must be for· the defendant, whether such employe gave the notice and carried out the rule or not, as in that case the negligence of' such employe in not giving the notice would not be the negligence of the defendant."
The court modified this by adding the words, "Unless you also find from the evidence that the defendant was guilty of gl'OSS negligence in employing as such workmen or employes unsuitable, unskilled, and unreliable persons," and as thus modified the instruction was given. This instruction, as asked for by the defendant, was clearly erroneous, and it ought to have. been refused. It entirely ignored any reference to the duty which the corporation owed to the plaintiff, and released it from all liability in the premises, provided the jury should find that its general manager or superintendent had directed any of the workmen to notify the men working about the chute when it would be drawn, if there was a standing rule of the company to that effect. There was no rule of the company to that effect offered in evidence. It was not shown that the company had any "standing rule" upon the subject. The testimony shows that it was the custom of the night boss to give the notice, and that this duty had been assigned to him to perform. It is true that upon the cross-examination of the plaintiff, when asked if that was a rule of the company, he answered in the affirmative; but it is apparent from the record that he did not mean that the company had adopted a "standing rule." The instruction authorized the jury to find a verdict for the defendant if it had such a standing rule, whether the plaintiff knew of it or not. The modification which the court made was also objectionable in this: that it introduced an issue that was not raised by the pleadings. It does not appear that this specific objection was made in the court below. Oourts should avoid stating abstract principles which have no application to the issues raised in the case either by the evidence or by the pleadings, even if such principles are, in all respects, correctly stated. The safest course for courts to pursue when an imperfect instruction is asked for is to refuse the instruction, and to embody in its charge a correct statement of the principles applicable to the case. The court, in its charge to the jury in this case, instructed the jury upon all the issues raised in the case as favorably to the defendant as the law would warrant, and. taking all the instructions and p-harge together, we are of opinion -::t.itt there is no ground for believing that the jury could possibly have been misled by the modification made to this instruction, How could the defendant have been prejudiced by the modification? It affirmatively appears that the jury must necessarily have found that the injury was caused by the negligence of Finley in failing to give notice to plaintiff when the rock in the chute was drawn. If the jury had found that Finley gave the notice, then, under the charge of the court, the verdict would of course have been for the defendant. If Finley gave the notice, there was no negligence, and the jury could not have found that he was incompetent. If he did not give the notice, he was guilty of negligence,. and his negligence was the neg-
ligence 9ft1;J.e corporatlo:tl.;and tblswarranted the jury in rendering a verdicqnfavor of plalntiff; and it was wholly immaterial whether he was asuitablej skilled, .or reliable servant. 3. The'defendant further requested the court to give the following instrllction:' .
"(4) The master is never liable for injuries received by Ii. workman in its employ if the injuries are the result of any negligence on the part of the person i;o,jured, That is what .the law calls 'contributory negligence,' And if you find :erom the. evidence :that the accident which caused the plaintiff's injuries was in any manner the result of want of ordinary care on the part of the pl1l.l.ntiff to avoid the accident 'and escape the damage, the plaintiff cannot recover,and your verdict must be for the defendant,"
modified by adding thereto the words:
"Unlessyqu also find from the evidence that the defendant was guilty of gross negligen,ce, and the plaintiff's negligence was slight,"
The court did not err in making this modification. Beach, Contrib. Neg. § 9. The judgment of· the district court is affirmed, with costs.
HARRINGTON v. HERRICK. (Circuit Court of Appeals Ninth. Circuit. October 24, 1894.) No. 126.
DEATH OF PARTNER-SUBSEQUENT ACTION ON FIRM NOTE.
2 Hill's Ann. St. and Gode Wash. §§ 947-953, provide that on the death of a member of a partnership his administrator shall include in the inventory, in a separate schedule, all the firm's property, and be entitled to its custody and control .for the purposes of administration, and that hp shall give bonds In a sum double its value, and administer thereon the same MOn estate$ of decedents, unless the surviving partner shli.ll within five days after the inventory Is filed, or such other time as the court allows, apply for administration of the copartnership estate, and give bonds in a sum double the value of the property. lIelli., that, where one of the members of a partnership dies, and his admInistrator administersthe firm'S estate because of fallure of the surviving partner to apply for' administration, such administrator is not a necessary party to an action against such survivor on a note given by the firm.
Error to the United States Circuit Court for the District of Washington, Northern Division. Action by E.M. Herrick against W. A. Harrington, surviving partner.of the firm of Hllt+ington & Smith, on promissory notes executed by such firm. There was an order sustaining a motion to strike defendant's, in abatement, and a judgmentfor plaintiff. Defendant brings ,err()r. Atlh'D1ed. ,
Plaintiff in .tbecourt below brought his action. against the defendant upon four lJromissory notes executed .in the firm of Harrington & Smith, averrlng· that the defendant, 'v.I. A. Harrington, and one Andrew SlIllth at the date ,of· the. execution· 'otsald notes,· copartners doing asmerchaIlts, at the· city of in the state of Washington, and at the city of San Fra,1J.<liscQ,qal.,under the firm name and style of The compl1l1nt also averred that prior to the cornmencementliOf the action the said Andrew Smith died, in the state of Califorwa,- IU1d that the defendant, Harrington,was "the only surviving