Markinovich v. Northern Pacific Ry. Co.

ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

In October, 1914, the Northern Pacific Eailway Company was engaged in constructing a passageway under its tracks in the yard at Glendive. In the course of the work it became necessary to move an iron or steel plate a distance estimated at from 100 to 200 feet, and to place it in position for use. The plate was about forty-four inches square, something more than an inch in thickness, and weighed 600 pounds, or thereabouts. Wester, the foreman in charge, detailed five men, including plaintiff, to do the work. After the plate had been carried about fifty feet, the men in front let their end fall, with the result that plaintiff — one of the two men carrying the rear end —received a blow in the abdomen which caused the injury of which he complains. He brought this action to recover damages from the railway company and the foreman, and charged them with negligence in failing to detail a sufficient number of men to perform the task properly. He prevailed in the lower court, and defendants appealed from the judgment and from an order denying their motion for a new trial.

1. There is a sharp conflict in the evidence throughout, but [1, 2] for present purposes we have adopted plaintiff’s theory generally. Our labors are greatly simplified by the frank statement of plaintiff’s counsel, in their brief, to the effect that the evidence offered by plaintiff establishes that the weight was not too great for him, that he could have sustained it, that he did not know at the time he received the injury that it was too heavy for the five men, and “that the injury was caused by the weight .slipping out of the hands of two or three of the men on the other side of the place, and was due to their fault alone. ’ ’ These conclusions from the evidence, except the last one, are not *143 merely justified, but are commanded. The evidence in effect is that, when the five men reached the plate, three of them seized it by the front end, with their backs to the plate and their hands behind them, the edge of the plate resting in the palms of their hands; that plaintiff and Bosiek took hold of the edge of the rear end, their faces toward it and their hands in front of them; that in this manner they carried the plate about fifty feet, until they started up a slight incline, when, the two men behind failing to push forward on the plate, it slipped out of the hands of the three in front, and the front end fell to the ground.

Appellants contend that upon this testimony plaintiff should be held to have assumed the risk. If it were necessary to dispose of this contention in order to determine the controversy, we should be inclined to say that the facts of this case bring it within the general rule adverted to in Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268 , 163 Pac. 560 , and not within the exception applied in that case; but our view of the evidence renders it unnecessary to consider the question of assumption of risk.

It is a serious question whether the evidence is sufficient to establish negligence, even under the rule of absolute liability, erroneously adopted by the trial court. There is not a suggestion in the record, or an inference that can be drawn from it, that, if six or seven men had been engaged upon the task, the same result would not have happened, if they arranged themselves about the plate in the same general manner that these five men did. There were many other employees of the company present, but not one of these five men complained that the burden was too great for the number of men assigned to carry it. The plate was moved by them fifty feet or more without apparent difficulty, and no request for assistance was made. Plaintiff and one other man carried the rear end, and plaintiff did not know that the burden was too great. But if we assume that in point of fact the burden was too great for the number of men assigned to carry it, and that under the rule announced by the court the defendants were negligent, still the burden *144 was upon the plaintiff to show that such negligence was the proximate cause of his injury, and in this respect he failed. His injury did not result from strain or overexertion, -but from the fact that the three men in front allowed their end of the plate to fall. It is apparent, then, that whatever caused the fall was the proximate cause of the injury; but neither plaintiff nor any one of his- witnesses testified that the excessive weight of the plate caused the fall, and .there are not any facts disclosed from which such an inference can be drawn. There is but one conclusion deducible from the plaintiff’s ease, viz., that the great weight was not the cause of the fall, but that the plate fell as the result of the clumsy method employed by the men in handling it and the failure of plaintiff and Bosick to keep it forward sufficiently to prevent it slipping from the hands of the three men in front. The manner in which the men should [3] carry the plate — their arrangement of themselves about it — was a mere detail of their work which the master was justified in leaving to their own judgment and discretion.

It is elementary that the master is not responsible for an injury to his servant which results proximately from the manner in which the servants do their work. He is not required to supervise the disposition of his working force in carrying out the details of the employment, any more than he is required to direct the workmen in the use of simple tools and appliances. (4 Labatt on Master & Servant, sec. 1528.) The trial court should have directed a verdict for the defendants, as it was requested to do.

2. In passing, we call attention to instruction No. 3, given, [4] as follows: “You are instructed that in this case it was the duty of the defendant Northern Pacific Railway Company to provide a sufficient number of servants to perform the work of lifting and carrying the iron plate in question with reasonable safety. ’ ’

The rule which measures the master’s duty has been stated and restated so often that it would seem impossible that any controversy over it could arise at this late date. He is required to exercise reasonable care to furnish a reasonably safe place *145 for work, reasonably safe appliances, reasonably competent fellow-servants, etc. As applied to the facts of this particular ease, the utmost that the law exacted of these defendants was that they exercise reasonable care to provide a sufficient number of men to move this plate with reasonable safety. Kelley v. Cable Co., 8 Mont. 440 , 20 Pac. 669 , McCabe v. Montana Central Ry. Co., 30 Mont. 323 , 76 Pac. 701 , Kallio v. Northwestern Imp. Co., 47 Mont. 314 , Ann. Cas. 1915A, 1228, 132 Pac. 419 , and Morelli v. Twohy Bros., 54 Mont. 366 , 170 Pac. 757 , are a. few of the many eases decided by this court during the past thirty years in which the rule is stated. Not only has this court repeatedly called attention to the fact that the master is not an insurer of the safety of his employee, the most recent ease being Barry v. Badger, 54 Mont. 224 , 169 Pac. 34 , but we Have frequently directed attention to instructions couched in language like the one under review, and have pointed out the error —that by such an instruction the master is made an absolute insurer. (Leonard v. City of Butte, 25 Mont. 410 , 65 Pac. 425 ; Anderson v. Northern Pac. Ry. Co., 34 Mont. 181 , 85 Pac. 884 ; Fearon v. Mullins, 35 Mont. 232 , 88 Pac. 794 .) Under instruction 3 the railway company was compelled to have in its service a foreman infallible in his judgment and in the exercise of his functions as vice-principal, or pay the penalty in damages for any injury to its employees. It is true that courts and text-writers, in referring to the rule by way of argument, frequently employ inept language; but, whenever it becomes necessary to state it, there is no difference of opinion.

A decision of the other question presented by appellants is unnecessary, and we decline to consider it at this time.

The judgment and order are reversed, and the cause is remanded, with directions to enter judgment for defendants.

Beversed and remanded.

Mr. Cheep Justice Brantly and Mr. Justice Sanner concur.

Motion for rehearing denied October 21, 1918.