Henson v. Pascola Stave Co.

*245DISSENTING OPINION.

NIXON, P. J.

We are unable to' assent to the proposition stated in the foregoing opinion that the servant who cut the stake in the woods which proved defective was the fellow-servant of plaintiff in such a sense as to relieve the master of liability.

Under the law governing the facts of this ease, the plaintiff, as defendant’s servant, had the right to expect that his master would furnish him with safe appliances and a safe place in which to do his work and would not surround him with dangerous agencies or expose him to their operation; and whether such agencies were in charge of the master .personally or his servant was wholly immaterial.

The stakes in the platform of the car subserved two purposes, one to hold the logs in their places on the platform of the car while they were being transported to the mill, and the other to support the logs in their places on the platform while they were being unloaded. The stakes held the logs until they could be moved from the car to the skids, and for that use they became a necessary part of the appliance with which the work was being done. Whether we call the stake in question a part of the car, or a part of the platform, or an instrumentality, or whether we call it an appliance, is wholly immaterial in determining the master’s liability. The ear with its sockets, stakes and platform certainly constituted an appliance or instrumentality which had been furnished to the plaintiff by the defendant master, and which plaintiff used in the discharge of his duties in unloading- logs from the car. If the rotten stake formed no part of the platform of the car and had nothing to do with the safety of the place where plaintiff was at work, how is it that as soon as the stake gave way the unloading of the logs in the iisua.1 way was instantly suspended, and the plaintiff *246was thrown from the place where he was at work to the ground with the logs on top of him? The duty of the master to his servant under the circumstances disclosed in this record was to use reasonable care to furnish the plaintiff with a safe appliance with which to work or a safe place to work in. The mere fact that new stakes may have-been furnished with each carload of logs that were hauled to the mill, and were temporary and not permanent, in no way relieved the master of the duty that the law imposed upon him. The fact that the stakes were changed with each load would only increase the chance of getting a defective stake and therefore require additional diligence on the part of the master.

It was expressly held in the case of Pennsylvania R. Co. v. La Rue, 81 Fed. 148-151, that in the case of a ear employed in the transportation of lumber, side standards to keep the load in place, whether such standards are for constant use, and permanently attached to the car by chains, or are unattached and intended for use on a single occasion, are appliances necessary for the proper equipment of the car, and as essentia] to the safe transportation of the load as is a proper car body. “These side standards, to all intents and purposes, are part of the car.”

In the-case of Bushby v. N. Y., L. E. & W. R. Co., 14 N. E. 407-409, it was held that the stakes of a lumber car are constituent parts of the car. “The platform and stakes constituted the bottom and sides of the car, and one was as much a part of it as the other.”

In the case under consideration, the platform was furnished to the plaintiff by the master in a completed state for him to.work on or with and was adapted to the work he was to perform. The plaintiff was not with other co-employees to work in the woods and prepare the car with stakes and load it with logs, but his duty so far as concerned the car was to unload it after it arrived at the mill. Hence- the rule does not *247apply to this case that where the master leaves the workmen themselves (one of whom becomes a plaintiff) to prepare the appliance, the master is not liable.

It was held in Port Blakeley Mill Co. v. Garrett, 97 Fed. 537, that stakes which fit in sockets on the side of a flatcar designed for transportation of lumber are appliances necessary for the proper equipment of the car.

In the case of McIntyre v. Boston & M. R. R. Co., 39 N. E.. 1012, a plaintiff, while. using due care, was injured by the breaking of a rotten stake used to hold a load upon a platform car and assist brakemen in crossing from car to car. Held, that the defendant railroad company was liable, though there was evidence that it had furnished sound lumber for stakes, and competent men to prepare them.

It was held in the case of Kansas City Car & F. Co., v. Sawyer, 53 Pac. 90-92, that a servant to whom the master entrusts the duty of selecting appliances for other servants to work with is not their fellow-servant so as to prevent liability of the master to them for injuries caused by his negligence in performing that duty. See, also, Chicago & A. Ry. Co. v. Maroney, 48 N. E. 953.

As stated, the side standards were a part of -the car, and the car with the stakes when it arrived at the mill was a completed instrumentality with which the plaintiff was to work in unloading the logs. In furnishing the stakes as a part of the car to support the bunk of logs on the opposite side of the car from which they were being unloaded, the master owed his servant, the plaintiff, the positive duty of furnishing stakes that were reasonably fit for the purpose, and reasonably sufficient to support the logs while they were being unloaded. In the reasonable discharge of this duty, he should have ascertained whether the stakes furnished were reasonably sufficient to bear the ordinary working strain to which they were likely to be subjected. *248The plaintiff had the right to rely upon the master discharging this duty, and such duty could not be shifted from the shoulders of the master to those of any servant however high or low.

In cases like the present, the question of the liability of the master turns rather upon the character and nature of the act done than upon the relation of the several servants to each other. If the act is the discharge of some positive duty owed by the master to the servant, then the negligence therein, being nondelegable, is the negligence of the master himself. [Friedman v. Empire Life Ins. Co., 101 Fed. l. c. 535; Oglesby v. Mo. Pac. Ry. Co., 177 Mo. l. c. 310, 76 S. W. 623; Browning v. Wabash W. Ry. Co., 124 Mo. 55, 27 S. W. 644; Lewis v. St. L. & I. M. R. Co., 59 Mo. 495; Siela v. Hannibal & St. J. R. Co., 82 Mo. l. c. 435.]

A broad line of demarkation exists regarding the duty of a master to his servant as to whether, he furnishes a completed appliance for his servant to work with, or whether he furnishes the servant the materials and entrusts him with the duty of preparing the appliance. In the latter case, if the preparation of the appliance is a part of the work which the servant (who is injured) is required to perform, the master is not liable for any defect in his preparation arising from the negligence of another servant. This is based on reasoning of which the ease of Relyea v. The Kansas City, Ft. S. & G. Ry. Co., 112 Mo. 86, 20 S. W. 480, affords an illustration, and in which it is said: “. . . they are co-servants who are so related and associated in their work that they can observe and have an influence over each other’s conduct and report delinquencies to a common correcting power.” The cases cited, in the majority opinion, as we understand them, belong to this class. This may be well exemplified by the case of Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934, cited in the majority opinion, in which two carpenters, plaintiff and one Redford, were jointly engaged *249in building a scaffold. The master bad furnished for their use a mass of raw material with which they were to erect the scaffold. Redford, the associate carpenter of plaintiff, selected a bad board from the lot, which broke under plaintiff’s weight and plaintiff was severely injured. The court, in commenting on the facts, said: “Certainly, reason is with the defendant in this case. The reason of the thing lies with the proposition that Dunnavant could properly trust the judgment of Forbes and Redford to select sound ledgers, (boards). Because, by the very act of hiring themselves to him, they held themselves out as capable of doing that very thing.”

Furthermore, the majority opinion seems to have overlooked the fact that the Missouri cases cited therein have, by a subsequent opinion of the Supreme Court, been carefully distinguished from application. to facts such as disclosed by the record in this case. In the case of Combs v. Rountree Construction Co., 205 Mo. l. c. 387, 104 S. W. 17, the court, in commenting on the case of Bowen v. Railroad, 95 Mo. l. c. 277, 8 S. W. 230, said: “When the preparation of the appliances is neither entrusted to nor assumed by them (the servants), the master may be held guilty of negligence, if defective appliances are furnished, even though the ivorkmen themselves are employed in the preparation of them.” The rule, as laid down by the test-writers is as follows: “It is generally held that where the appliance is furnished by the master as a completed' instrumentality for the use of the employees who are to work thereon, the fellow-servant rule is not applicable.” [26 Cyc. 1330.] See, also, Chicago, etc., R. Co. v. Scanlan, 48 N. E. 826; Haworth v. Seevers Mfg. Co., 51 N. W. 68, 62 N. W. 325.; Kansas City Car, etc., Co. v. Sawyer, 53 Pac. 90; McCone v. Gallagher, 44 N. Y. Suppl. 697; Chambers v. American Tin Plate Co., 129 Fed. 561; Pennsylvania R. Co. v. La Rue, 81 Fed. 148-*250151; Bushby v. N. Y., L. E. & W. R. Co., 14 N. E. 407; Port Blakeley Mill Co. v. Garrett, 97 Fed. 537.

In the present ease, the plaintiff, as servant, was charged by his employer with no duty, either to select stakes or to. place them in their sockets; nor was he engaged with any associate in that service; nor was he charged with any duty with respect to the safety or inspection of the cars or platform on which or the stakes with which the master required him to work. His duty was to assist in unloading the logs, which he was discharging at the time of the accident under the immediate supervision of the defendant’s “straw-boss;” and while the plaintiff stated that it was his duty to do whatever else was required by the foreman, this evidently meant that he was to do what was required of him at the mill (and not in the woods) for he had never worked elsewhere. We are unable to see how it was the duty of the master to furnish a car with a sufficient number of sockets for stakes but not his duty to furnish sound stakes for the sockets. We are therefore of the opinion that it was the duty of the defendant as the employer of plaintiff to use ordinary care to furnish plaintiff a reasonably safe car with reasonably safe appliances thereto and with reasonably safe sockets and standards, and of sufficient number to well and safely hold the logs on the car while plaintiff was assisting in unloading them so as to prevent the same from falling off the side at which they were not being unloaded.

The excuse for the length to which the principles of this case have been examined in a dissenting opinion is their importance as the trend of present judicial decision is and ought to be in the direction of restricting and not extending the doctrine of fellow-servant.