
    FRED E. LILLY, Respondent, v. ELM POINT MINING COMPANY, a Corporation, Appellant.
    (178 N. W. 128.)
    Damages —four thousand dollars for serious and painful injury and fracture of a lower rib held not excessive.
    1. This is a personal-injury suit, in which the plaintiff recovered a verdict for $4,000. It is not excessive.
    Master and servant — injury from order to work in dangerous place actionable.
    2. By direction of defendant, the plaintiff tried to work in a dangerous place on a trestle, where, he had to stand on a narrow rail. He lost his balance, fell, fractured a rib, and was severely injured.
    Note. — Authorities discussing the question of the excessiveness of verdicts for personal injuries not resulting in death are collated in a note in L.R.A.1915F, 30.
    Opinion filed May 1, 1920.
    Rehearing denied June 4, 1920.
    Appeal from the District Court of McLean County, Honorable J. A. Coffey, Judge.
    Affirmed.
    
      Eanchett & Johnson, for appellant.
    Prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible. Cavanaugh v. Centerville Block Coal Co. (Iowa) 109 N. W. 303.
    A servant may sustain a dual relation towards the other servants in that he is vice principal as to those duties delegated to him for the due performance of which the master cannot relieve himself from liability, while he is a mere fellow servant, in reference to those acts in the performance of the work not within the personal duties of the master. Lindvall v. Woods (Minn.) 48 N. W. 1032; Callan v. Bull (Cal.) 63 Pac. 1011; Maat v. Kern (Or.) 34 Pac. 230; Martin v. A. T. & S. E. Co. 166 H. S. 299, 41 L. ed. 1051; Cavanaugh v. Centerville Block Coal Co. (Iowa) 109 N. W. 303.
    
      Edward T. Burke, for respondent.
   Robinson, J.

This is a personal-injury suit in which the plaintiff recovered a verdict for nearly $4,000. In November, 1917, defendant owned and operated a coal mine in McLean county. It is a side-hill mine, from which the coal is taken by small cars running on a horizontal track of wooden rails. The rails were about 2 feet apart and were on the level ground and on a dump of mine slack, and then, for about 20 feet, on a trestlework. The rails laid on the trestle were about 6 feet above the ground. There was no flooring between the rails or on the outer edge of the rails. The mine was operated by filling small cars with coal, then pushing or pulling them to the outer end of the rails, and dumping the coal into a chute or wagon. The plaintiff was in the employ of defendant, and, on the day of the accident, he and the superintendent pushed out a car of coal to the end of the track. Then, as the guage of the car was a little too narrow, the right front wheel of the car fell down between the tracks. The superintendent ordered the plaintiff to go forward and replace the wheel. The plaintiff went forward, stood on the narrow track or rail, and attempted to lift the same, but could not do it because the flange of the wheel was caught on the track. Then he stepped across onto the other track or rail and pulled on the left front wheel, and then the right hind wheel fell between the tracks. As the plaintiff stood on a narrow rail and had to balance himself by holding onto the car, and as there was no footing between the rails, the lurch of the car threw him on his back across the track on the right side of the ear. He fell down the chute. His lower rib was fractured, and he was badly injured and disabled. He suffered much pain, some expense in doctoring, and the impairment of his working capacity, and so the jury assessed his damages at $4,000; and, though the damage appears rather excessive, that is not sufficient cause for disturbing the verdict. It is quite probable the plaintiff would have settled for half the sum if he could have obtained it without incurring the future expense of an action and an appeal to this court. Where a party has to recover his damages 'at the end of a lawsuit, the expense is always a matter of some consideration.

The law is simple:

One who, for a good consideration, promises to serve another must perform the service, and must use ordinary care and diligence therein. Comp. Laws § 6112.

An employee must substantially comply with tbe directions of his employer concerning tbe services in which be is engaged. Comp. Laws § 6115.

An employer is not bound to indemnify bis employee for losses suffered in consequence of tbe ordinary risks of tbe business. Comp. Laws § 6107.

An employer must, in all cases, indemnify bis employee for losses caused by tbe former’s want of ordinary care. Comp. Laws, § 6108.

Much is said concerning tbe proximate cause of tbe accident, and it is true that tbe first wheel falling from tbe track did no injury to any person. It was merely tbe remote cause of tbe accident. Tbe proximate cause was tbe direct result of an attempt to replace tbe wheel upon tbe track, and in making tbe attempt tbe plaintiff acted under tbe direct orders of tbe superintendent and manager of tbe mine. Tbe plaintiff stood on a narrow track, lifting a corner of tbe car and bolding onto it for support, when tbe car gave a lurch and tbe plaintiff was thrown over because there was no footing between tbe tracks. If there bad been some flooring between tbe tracks, as there should have been, then plaintiff’s left foot would have automatically moved to tbe left and onto the flooring, and that would have steadied him and prevented bis falling. In trying to adjust tbe car and replace it on tbe track, tbe plaintiff bad a right to obey and trust tbe orders of tbe superintendent who stood over him. Tbe superintendent bad no right to order, or even permit, him to do what was dangerous, or to work in an unsafe place. For tbe fault of its superintendent and manager, tbe defendant must answer in damages according to tbe verdict of tbe jury.

Affirmed.

Christianson, Ob. J., and Birdzell, J., concur.

Grace and Bronson, JJ., concur in tbe result.

Christianson, Cb. J.

(concurring). Tbe contention of tbe appellant is: (1 )That its motion for a directed verdict should have been granted; (2) that tbe court erred in its instructions; and (3) that tbe verdict is excessive.

In my opinion tbe questions of negligence, contributory negligence, and proximate cause were for, and properly submitted to, tbe jury. I find no prejudicial error in tbe instructions; and I do not believe tbat tbe verdict can be said to be excessive as a matter of law. Hence, I concur in an affirmance.

Per Curiam

(upon petition for rebearing). Tbe appellant contends tbat tbe place where tbe plaintiff was hurt was purposely left without flooring and open for tbe reason tbat it was tbe place where coal was dumped into a chute; tbat it was, therefore, not negligence to have no flooring between tbe rails. It is furthermore urged tbat this court did not pass upon all of tbe specifications of error raised in tbe record, and tbat particularly tbe trial court erred in instructing tbe jury tbat tbe defendant admitted tbat tbe plaintiff was .employed by tbe defendant at its mine.

Tbe record again has been reviewed. Tbe plaintiff was inexperienced ; be was injured on tbe very first day when be was directed by tbe superintendent to take coal out of tbe mine by means of a coal car. Upon tbe record tbe questions of tbe negligence of tbe defendant in instructing and in directing tbe plaintiff to work in tbe place where be was injured, under tbe conditions then existing, both with respect to tbe car and tbe place where be stood, as well as tbe contributory negligence of tbe plaintiff in so doing, were fairly questions of fact for tbe jury. Tbe complaint alleges tbat tbe defendant employed .the plaintiff. Tbe answer alleges tbat tbe defendant was tbe equitable owner and in possssion of tbe coal mine, and tbat tbe plaintiff was there employed. Tbe evidence shows tbat tbe plaintiff was employed by tbe superintendent of such mine. There is no evidence to disprove these allegations of both tbe complaint and tbe answer, or tbat tbe possession and control of tbe mine was in any other person than tbe defendant. Tbe other instructions upon which error is predicated concern want of ordinary and proper care on tbe part of tbe plaintiff, and tbe award of damages for permanent injuries. These instructions, upon tbe record were properly given. Tbe petition for rehearing is denied.  