Kangas v. Cleveland Cliffs Iron Co.
Kangas v. Cleveland Cliffs Iron Co.
Opinion of the Court
The plaintiff was injured while in the defendant’s employ as a miner in the Lake mine, in
It is the claim of the plaintiff — and there is testimony in support thereof — that the men of the day shift were negligent in carrying on this work, in that they did not block up the space which was left between the top of the second set of timbers and the back of the drift or sublevel, and it is claimed that there was a hole which led from the opening at the top of the lagging up into an old stope, and that the rock which injured the plaintiff came down from the old stope, out through this hole, which was left by reason of the absence of blocking, and struck the plaintiff.
As it was conceded that, if the men who were charged with the duty of putting up these sets, putting in the lagging, and blocking it, had performed their duty, the accident would not have happened, the learned trial judge directed a verdict for the defendant, for the reason that, if the accident happened as claimed by the plaintiff, it was the result of the negligence of the fellow servants of the plaintiff, and not of any negligence on the part of the defendant, and that therefore the plaintiff could not recover.
Is is the contention of counsel for the appellant that the fellow-servant rule is not applicable in the instant case, because the employee who was
We cannot find, however, that this doctrine has ever found support in the decisions of this court. The definition of a fellow servant which has been approved repeatedly is found in McCauley v. Railroad Co., 167 Mich. 230, 236 (132 N. W. 510, 512), where this court said:
“The general rule in this State, as repeatedly held by us, is that—
“ ‘all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may he in different grades or departments of it, are fellow servants.’ Adams v. Iron Cliffs Co., 78 Mich. 271-288 (44 N. W. 270, 18 Am. St. Rep. 441).”
In the application of this rule, it has never been held that the employees need be engaged in the same common work at the same time. It seems to be sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. See Hoar v. Merritt, 62 Mich. 386 (29 N. W. 15) ; Caniff
—‘‘between him (the plaintiff) and defendant, in the strict sense requisite to make applicable the fellow-servant rule or the doctrine of safe place and duty to instruct due from master to servant.”
Under the facts in this case, and under the law of this State as established by the decisions of this court, there can be no escape from the conclusion that the relationship of fellow servant between the employees of the day and night shifts did exist.
It is also urged by counsel for appellant that the defendant owed the plaintiff the nondelegable duty to warn him of the existence of the dangers in this case. There is no question made but that the plaintiff himself
“Under the undisputed evidence in this case, as far as performing his work was concerned, plaintiffs decedent was engaged in making a safe place, and it is self-evident that it would be an impossibility for the defendant to cause the timbering in this stope to be done in advance for the protection of the men who themselves were specially employed to' put in the timbering. The dangers were only those necessarily incident to the employment, changing from hour to hour, as the work progressed, and it is apparent that, by reason of the character of the work and the dangers attending it, miners of extraordinary skill and experience were selected, invested with power and authority to determine for themselves the safety of the place before going to work. This court has held that under, circumstances of this character the doctrine of safe place does not apply. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505).”
The absolute and nondelegable duty to warn arises in this jurisdiction as an incident of the defendant’s duty to furnish and maintain a reasonably safe place for the plaintiff to perform his work. In the case before us the plaintiff himself was engaged in the very work of making the place safe, and, as we have stated, in such a case the doctrine of safe place does not apply. Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75) ; Koskell v. Mining Co., supra; Zap v. Mining Co.,
Judgment is affirmed.
Reference
- Full Case Name
- KANGAS v. CLEVELAND CLIFFS IRON CO.
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- Published