Defendants Brief — Alaska Treadwell Gold Min. Co. v. Whelan

IN THE

Supreme Court of the anited States.

OCTOBER TERM, 1896.

No. 215.

-

THE ALASKA TREADWELL MINING COMPANY,

PLAINTIFF IN Error,

v8.

PATRICK WHELAN, Derenpant in Error

BRIEF FOR THE DEFENDANT IN ERROR.

OSCAR FOOTE,

For Defendant in Error.

IN THE

Supreme Court of the Aanited States.

OCTOBER TERM, 1896.

‘No. 215.

THE ALASKA TREADWELL MINING COMPANY,

PLAINTIFF IN ERROR,

Us.

PATRICK WHELAN, Derenpant ry ERROR.

BRIEF FOR THE DEFENDANT IN ERROR.

In the following pages the parties will be designated by their

titles in this court.

The plaintiff in error was engaged in Alaska in mining and

milling ores, and through its foreman, ‘inley, had employed

the defendant in error to work about the mill.

While so engaged the defendant in error was seriously

maimed and crippled and he brought action to recover dam-

ages for injuries received by the negligence of the plaintiff in

error.

The complaint alleges that the defendant in error, while in

the employ of the plaintiff in error, was severely and perma-

nently injured by being drawn through a chute from the ore

pit when, without his knowledge, the draw below was opened

to load the cars used in conveying broken ore to the mill; that

this injury occurred without negligence on his part, but by the

negligence of the plaintiff in error.

The answer denies that the defendant in error was injured

to the extent charged, or that his injury was caused by the

negligence of the plaintiff in error, and sets up contributory

negligence on the part of defendant in error.

The jury gave a verdict for the defendant in error for $2.,-

50.

Che litigant mining company was granted a writ of error by

the Federal Court of Appeals for the ninth circuit, and on re-

ETO AOTC E REBORN AERIS TERE MANE Th CERT Rce ie HCL ER na sine a

pa TD HERS ceed

,

?

_

view said court of appeals affirmed the judgment of the United

States District Court for Alaska (rec. p. 70 print).

The cause is now here on writ of error to said court of ap-

peals.

THE ASSIGNMENTS OF ERROR,

On page 80, print, it will he observed that: “The plaintiff as-

signs the following errors committed by the Cireuit Court of

Appeals,” to whom the writ of error in this cause is directed,

and then follow seven assignments of error, numbered 11 to 17.

In the brief of the learned counsel for the plaintiff in error

the “errors relied upon,” and the only points of the case dis-

cussed, apply to-ancd involve omy the-two anestions—fellow

servant and contributory negligence—therefore, we will ac-

cordingly confine our attention to those questions.

It is believed that there was no essential error in the court's

modification of instructions No, 2. (Org. R. tor, print 56.)

The jury was instructed upon all the issues in the case as

favorably to the defendant as the law would warrant, and tak-

ing all the instructions and charge together, it does not appear

that the jury could have been misled by the modification.

The jury must have found that the injury to the defendart

in error was the result of Finley's negligence to give due no-

tice when the rock in the chute was to be drawn. There was

no negligence if Finley gave the notice, and the defendant in

error would have got a verdict. The jury could not have

found that Finley was incompetent. The jury was warranted

in finding for the defendant in error if the not'ce was not given,

for then the company. the plaintiff in error, was negligent

through Finley. whose duty it was to give notice.

We fail to see how the modification could in any way work

a prejudice to the plaintiff in error.

NEGLIGENCE OF THE \PASTER.

Learned counsel for the plaintiff in error grant that the evi

dence shows affirmatively that the cause of the injury to the

defendant in error was the neelivence of Foreman Finley in

3

not potifying him when the ore was to be drawn from the

chute.

This raises the question of the relation that was found by

the jury to exist between the injured defendant in error and

the plaintiff in error company, acting through its agent, Fin-

ley.

Upon this question depend all save one of the seven as-

signments of error, upon which the writ of the Circuit Court

of Appeals is founded, and also whether there was error in

overruling the motion to return a verdict for the defendant—

the plaintiff in error here.

Reasonable protection and safety for the defendant in error

while engaged in his work was an obligation upon the plain-

tiff in error. Due and fair warning that the chute was to be

drawn was a duty that the plaintiff in error owed the employe.

The company could give such warning only through some

agent or employe, specifically charged with that duty. It does

not appear that the duty of the company was delegated to the

general manager of the mine and mill, or to the superinten-

dent, but it is in evidence (rec. pp. 38, 39 print) that such duty

was delegated by the company to the foreman or “boss” of the

department of work engaged in breaking and supplying ore to

the mill.

The jury found, under the instructions (rec. p. 60), that

Foreman Finley was employed and delegated to do the duties

of the master, and that negligence in the performance of the

duty thus delegated to him must be regarded as the negligence

of the master,

The warning of Whelan was a duty the company owed him.

\Vood. in his “Law of Master and Servant,” writes:

“When a foreman or other person, by whatever name he

may be known, is put by the master in his place to discharge

some duty which the master owes to the servant, as to such

duty he is not a co-servant, but a representative of the master.

lf the master delegates a duty to avother he is answerable for

the manrer in which the duty is discharged, and he cannot

sercen bimself from liability upon the ground that he has se-

Sane errs Ses PER ARYANS PR IOI ASE OGM HE NIM ROSIE SES

$e yppaerer: wee Bs S

GPR A DIE TF ata RAR NR Lt MC NST NEL MENE EMAAR

ADhAeEt PA ena es

IN LEAL ISI LL GEL, LTR TEEPE IINEY SAMO ATINZ

Grater: * Boor

Gs SLM Rae Ter

bee rin»

betes ts

BELROATEBATR WENT PIES YEN RT =

Pe oe ee

Bik,

4

lected a competent person to discharge the duty for him, for

the duty is one which, in law, he is regarded as having con-

tracted to discharge in person.”

Though the evidence shows that Foreman Finley was, to

the extent of hiring and discharging laborers, a representative

of the principal (rec. p. 18.

“(). You say Finley hired you?

“A. Yes.

“Q. Who was it Finley discharged?

“A. Dan Sullivan.

“QO. Who kept your time?

“A. T said Finley did.”

Of another witness, p. 48.

“Q. Did the wages come through Finley?

hy 208, Oe,”

Page 51.

“Q. Did you know of Finley hiring or discharging men?

“A. T know of his discharging two men.”)

it may be reasonably contended that it is wholly immaterial

whether he acted for the company in hiring the workmen or

not. The test is. was he delegated to observe reasonable care

and afford that protection that was due the workmen fri ym the

emplover during the hazardous operation of drawing the chute

while the workman was engaged at its head or mouth by the

direction of the employer?

It has been enunciated in McKinney on Fellow Servants.

sec, 23, that: “The true test, it is believed, whether an em-

ploye occupies the position of a fellow servant to another em-

ploye, or is the representative of the 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 per-

formed by the offending servant by which the other employe

is injured: or, in other words, whether the person whose status

is in question is charged with the performance of a duty which

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 by what name he may be designated,

a Ne Sieh a ANS TE IAL gS NDE RE LCT Y BEE ST UTI a

. . eh EARN GT NOE ROT LEGS CME TE SARS BIS Br de Rae Wi)

3. yay AAG PNET RS Cp ERE POF a

PEF EE BAG DAI ETS 3

ee RRO

re)

cannot be a servant within the meaning of the rule under dis-

cussion,” .

We do not deny that the muscular operation of drawing the

gate of the chute was a menial duty; but the duty of notifying

the workmen in the mouth of the chute, relying and dependent

upon due notice of danger, the duty of drawing the gate in

such reasonable and safe manner as to guard and shield the :

workman from injury, was the lawful and bounden duty of the ;

f

emplover company. ;

-

4

“The master is bound to inform his servant of facts within i

his knowledge affecting the safety of the servant in the work

to be done.”

McGowan @. La Plata Mining Co., 3 MeCrary, 393. d

‘ , ‘ =

It is believed it can be reasonably stated that where a :

method or contrivance is used which is dangerous to the pub-

lic or the workman, and the control of which is exclusively in

the owner of such contrivance, or one acting for him, in such

case the value of human life and the dangerous character of

the contrivance make it public policy and create a rule of law

that the owner, either directly or through the one in control,

shall be held to the greatest care which human reason, fore-

sight and Jkill can produce, and which is necessary to protect

human life from the dangerous contrivance he has set in op-

PSORIASIS

eration.

erect aaa

Horace Smith on Negligence, pp. 142 and 143:

Broom’s Maxims of Law, p. 399:

Shearman and R. Negligence, sec. 683-091

Union Pac. R. Co. 7. MeDonald. 152 Si 202,

Reach, in his justly eminent work on Contributory Negh-

gence, in discussing the related question of fellow servant,

SAVS, SEC. 302:

“The master. when taking a hand and engaging in common

XS SoS

RR eS Ulla RON aS ue oii acd

laber with the servant. does not thereby lose his position as

: ‘ ¥

master or become a fellow servartein such legal sense that the ‘

. . . ee . - t

servant impliedly undertakes to assume the risk of injury trom 8

his negligence when so jointly infured.” ;

P

a

tr

a

¥

SA AOR IONE LO EE TI Ne aE 2

- "

Be cpeperanee RT STR I I

6

Ryan v. Fowler, 24 N. ¥., 4f0;

Anderson 7. N, J. Co., 7 Robt., 611,

The authority just quoted further says:

“Where one servant is placed by the employer in a position

of subordination and Subject to the orders and control of an-

other in such a way and to such extent that the servant so

placed in control may reasonably be regarded as representing

the master, when such inferior servant, without fault and while

discharging his duty, is injured by the negligence of his su-

ferior servant, the master is liable in damages for the injury.”

(Sec. 325.)

In N. Pac. R. R. Co. ¢. Peterson, 162 U.S., 346.

The Supreme Court held that “if the master, instead of per-

sonally performing the obligations due his servant, engages

another to do them for him, he is liable for the neglect of that

other, which is not the neglect of a fellow servant, but of the

master.”

Vide Railroad Co. @. Baugh, t4y U.S, 309;

Vide U. P. R. Co. @. Daniels, 152 UL S,, OR 4.

We invoke the law, as promulgated in these opinions, as

well as the further ruling in the first named case, upon a col- .

lateral point, wherein the court says: “Where the business of

the master is divided into departments of service the persons

placed by the master in charge of these separate branches or

departments, and given control therein, may be coasidered,

with reference to emploves under them, Vice-principals and

representatives of the master as fully as if the entire business

of the master were under one superintendent.”

With reference to the neglect of the master in the case under

Ciscussion, ve betleve a case in point is that «

Gilmore 7. N. P. R. Co.. 18 Fed. Pep. 860,

i which it appeared that the railroad company ta building its

road had many gangs of men at work at froni three to five

miles apart. under the control and direction of foremen, with

EANREA SER ROE Ee PAE UAE RAE EIN OREN RATE

ns aaa ats sea Oat SE STORE

Et STN PRET ROE OS OE NI ETL MUNG A AREY

ARLE SRY i PORE IB

7

the power to employ and discharge, subject, theniselves, to

the control of a general superintendent, who passed along the

line and inspected the camps at certain periods. Giant powder

was used, and in such case the foreman was charged with the

duty of handling the powder and thawing it when frozen.

The superintendent had given notice not to thaw powder be-

fore a fire, and provided a safe appliance called a “heater” for

the purpose.

The plaintiff was employed in a gang where powder was

being thawed without this safe appliance, and while assisting

in so thawing the powder, by direction of the foreman, was

injured by its explosion.

It was held that the foreman, so far, stood in the place of the

defendant, that his directing the plaintiff to assist in thawing

powder without using a means to avoid danger was an act of

neglect for which the defendant was responsible to plaintiff.

()f equal directness of application is the case of

L. S. & Mich. R. Co. @. Levalley, 36 Ohio St., 221.

A foreman was in charge of a set of hands, repairing cars

while on the track in the railroad company’s vard, in which

trains were accustomed to be made up; it was also the duty of

the foreman to help with the hands in doing the work. While

the foreman and a hand were engaged in repairing a car, and

the latter was, by the foreman’s order, at work under it, he

was injured by another car moving on the same track striking

the car under which he was.

It was held that it was the duty of the foreman, in putting

the hand to work under the car, to use reasonable care to pro-

tect him from danger arising from switching of cars and the

making up of trains on the same track, and for injury resulting

from such negligence the company was liable.

In Rvan zw. Bagalev. 50 Mich.. 179.

it was held that “a ‘mining captain’ end the miners are not fel-

low servants.” Vhe mining captain in that case was subsery

ient to a higher official, as has been claimed the foreman, Fin-

Pee SDE

&

3

a

PETES

thine $

SRE RIOR ISR BARE NEAGE

8

ley, was in this case at bar, but was superior to the miners un-

der his direction.

In Berea v. Kratt, 31 Ohio, 287,

it was decided that “a mine foreman in charge of hands is not

a fellow, but a superior, servant.”

In Brown v7. Sennett, 0&8 Cal., 225,

the foreman of laborers to whom a stevedore delegates the

management of unloading a vessel was found to not be a fel-

low servant.

The same rule prevailed in

-

‘ Muleairns @. Janesville, 07 Wis. 24.

a relative to the superintendent and workmen engaged in dig-

§ ging a cistern.

F CONTPRIBUTORY NEGLIGENCE.

;

j There was no error in the Cireuit Court of Appeals in find-

ing that the trial court did not err in submitting to the jury

| the question of negligence on the part of the defendant in er-

4 ror. In determining this question the jury had to consider

i the surroundings tn which the defendant in error was placed,

‘ the noise of the drills, the mouth of the chute being covered

: over with rock and the conflict of evidence as to whether or

4 not linlev notified the plaintiff when the rock was to be

& drawn, made it the duty of the trial court to submit the ques-

; tion to the jury.

#

3 N. PR. Co. 7. Amato, 144 U.S., 467:

3 Kane o. Northern R. Co... 128 UL S.. gt:

3 Jones @. FE. Tenn. Co., 128 U. S.. 443.

It is also believed that the Cirenit Court of Appeals made no

; error in finding no error in the instructions as modified by the

; trial court as to contributory negligence of the defendant in

3 error, the plaintiff below.

a

a

*

.

7

>

¥

:

%

«

re

ke

|

3,

4

é

9

Beach, in his writings on Contributors Negligence, sec. 25.

says: “When the defendant's negligence is the proximate

cause, and that of the plaintiff is the remote cause, the plaintiff

may have his action. And if the negligence of the plaintiff

being only the remote cause, and the defendant might have

avoided inflicting the injury by exercise of ordinary care, the

action for damages is maintainable.

“The plaintiff's neghgence must substantially contribute to

produce the injury in order to avail the defendant.”

We submit that the plaintiff's negligence to constitute a de

fence must have been so far an efficient cause of the injury,

that without his negligence the injury would not have hap-

pened.

Vide Beach on Con. Negligence, sec. Ty, et. seq.:

Kane zw. N. ‘ent. R. Co., 128 U. S.. gt:

Daley o. Norwich R. Co., 26 Conn., 501;

Grippen 7. N.Y. R. Co.. 40 Ms 2 a

Steamboat Co. 7. Vanderbilt, 16 Conn., 420.

Respecting the jurisdictional question discussed by our

learned opponent, we admit the jurisdiction of the Circuit

Court of Appeals in this cause. aed Ma [hretdec Meo. here ,

Upon the foregomg points we respectfully submit that no’

error bas been permitted and that the judgment should be

affirmed,

OSCAR FOOTE,

For Defendant in krrer.

BP a ae a:

a ol

ve

b CRA ae teS er a PRM ATO IPT ERY

SCRE SOK

Oa aah Can ar eed

aeceie

RRR ROT FP LATION PT RIT RE