
    ALASKA TREADWELL GOLD MIN. CO. v. WHELAN.
    (Circuit Court of Appeals, Ninth Circuit.
    October 2, 1894.)
    No. 161.
    L Fellow Servants — Question for Jury.
    In an action for personal injuries it appeared that plaintiff was one of a gang of workmen employed in defendant’s mine to break up rock in the ore pit, from which the broken rock was drawn, from time to time, through chutes, to a lower level, at which the chutes were closed by gates. Defendant had a general manager, and a superintendent in charge of each of several works belonging to it and the gang to which plaintiff belonged worked under the direction of one F., its boss, whose duties were to see that the men did their work, to direct them .where to work, to notify them when rock was to be drawn through the chutes, and to direct when rock should be drawn through any particular chute. There was a conflict of evidence as to whether F. was authorized to employ and discharge men at work under him. Plaintiff, who was at work on the top of a pile of rock, covering the head of a chute, was injured by being drawn through the chute with the rock. There was a conflict of evidence as to whether, on the occasion in question, F. notified plaintiff that the chute was to be drawn. Held, that it was properly left to the jury to determine whether or not F. was a fellow servant of plaintiff.
    2. Same — Contributory Negligence.
    The question of plaintiff’s contributory negligence was also properly left to the jury.
    3. Same — Negligence.
    An instruction to the jury to the effect that.if defendant, by a standing rule directed any one. to notify the men working about the chutes when a chute was to be drawn, plaintiff could not recover, unless defendant was guilty of gross negligence in employing unsuitable persons, was erroneous, since the first branch of such instruction ignored the duty defendant owed to plaintiff, and the last branch introduced an issue not made by the pleadings; but such error was harmless to defendant
    4. Same — Gross and Slight Negligence.
    Where the defendant requested the court to charge that plaintiff could not recover if the jury found that his injuries were in any manner the result of want of ordinary care on his part, it was not error for the court to modify such instruction by adding: “Unless the defendant was guilty of gross negligence, and the plaintiff’s negligence was slight”
    In Error to the District Court of the United States for the District of Alaska.
    Action by Patrick Whelan against the Alaska Treadwell G-old Mining Company. Plaintiff recovered judgment, and defendant brings error.
    T. Z. Blakeman, for plaintiff in error.
    Lorenzo S. B. Sawyer, for defendant in error.
    Before* McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.
   HAWLEY, District Judge.

This is an action to recover damages for injuries received by the negligence of the defendant (plaintiff in error). The complaint alleges that plaintiff (defendant in error), on the 23d day of November, 1891, while in the employ of defendant as a, laborer at its mine at Douglass Island, in Alaska, was severely and permanently injured by being drawn through the chute from the ore pit when the draw in the tunnel below was opened to load the cars used in conveying the ore to the mill; that this accident occurred without any negligence on his part, by the negligence of defendant. The answer admits that the accident occurred, but denies that plaintiff was injured to the extent charged, or that his injury was caused by the negligence of defendant, and alleges that plaintiff was guilty of contributory negligence. Upon these issues the cause was hied before a jury, which resulted in a verdict in favor of plaintiff for $2,950. There was but one witness introduced on behalf of plaintiff, -the plaintiff himself.

The defendant owned a mill, mine, and chlorination works. It had a general manager. It also had a superintendent or foreman in charge of each of its works. It had three shifts of workmen engaged at labor in the mine, — two in the daytime and one at night. Each shift had separate bosses. A man named Finley was the shift boss at night, and upon this shift the plaintiff was at work when the injury was received. The plaintiff’s duty was to break rock, and get it ready to go through the chutes, to be loaded into cars for conveyance to the mill. lie had been employed at that work for about six months prior to the accident. In a place designated as the “pit” the quartz rock blasted from the lodes was thrown where it was broken into pieces, and made ready for the mill. From this pit several chutes led downward into a tunnel, where there was a railroad track leading out to the mill, and on which cars were run to receive the broken rock from the chutes. The lower end of the chutes, which were several feet below the floor of the pit, had gates to be opened when the rock was to be drawn from the chutes into the cars. Plaint iff and one McCormick were working in chute No. 17, which was full of broken rock, and the rock was piled over it about 30 feet deep. On the top of this pile were large pieces of rock, which, on the night the accident occurred, the plaintiff and McCormick were directed, by Finley, to break. It was Finley’s duty to direct when the rock from any partícula!' chute was to be drawn. It was his custom to go into the pit, and notify the men when he was going to draw from the chute. There is a conflict in tiie evidence as to whether Finley came back that night after ordering the men to break the rock. The plaintiff testified that he did not. The jury must have found that he did not, or, if he did, that plaintiff did not see or hear him. Within an hour after plaintiff commenced work, under Finley’s orders, chute No. 17 was drawn, and plaintiff went through, with the rock, and was injured.

1. At the close of the evidence the defendant moved the court to direct the jury to return a verdict for defendant upon the following grounds:

“First. That it appears from the testimony that the negligence, if any, which caused the accident to the plaintiff, and the consequent injuries, are the result of the negligence of a eoemployG or fellow workman, Sam/ Finley, ior which the defendant is not liable. Second. That it appears from the testimony that the plaintiff contributed to the accident himself by carelessly and negligently walking oyer the top or mouth of the chute after he had warning that rock was to be drawn from there.”

Tbe court overruled tbe motion.

Did tbe court err in refusing to instruct tbe jury to find a verdict for defendant? Tbe first and most important question is wbetber Finley, tbe nigbt boss of tbe shift of workmen employed at tbe mine, was a fellow servant of tbe plaintiff. Finley’s duties were to see tbat tbe men did tbeir work, to direct them where to work, and to notify them when rock was to be drawn from tbe chutes. It was tbe duty of plaintiff to obey Finley’s orders. Finley was his boss. These questions are undisputed. There was a conflict in tbe testimony as to wbetber Finley was authorized to employ and discharge men at work under him, or wbetber be bad done so. Plaintiff testified that Finley employed him, and be knew that Finley bad discharged other men. Upon this state of tbe evidence tbe court submitted the question — as a question of fact — to tbe jury as to wbetber or not Finley was a fellow servant, by tbe following instruction:

.“The jury is instructed that the true test is whether the person in question is employed to do any of the duties of the master. If so, he cannot he regarded' as the fellow servant, hut is the representative of the master, and any negligence on his part in the performance of the duty thus delegated to him must he regarded as the negligence of the master. You have heard the testimony as to Finley’s authority and duties, and whether or not he had any power to employ men or discharge them, or whether he simply acted under another man, who had the same power over him that was exercised over other laborers.”

We do not deem it necessary to discuss tbe various definitions of tbe. general rules upon tbis subject, nor to review tbe conflicting decisions wbicb prevail in tbe different state courts in regard thereto. Tbe instruction given by tbe court, wbicb was not objected to, is witbin tbe principles announced by tbe supreme court of tbe United States as tbe governing rule in determining wbetber or not, in any given case, tbe injury was caused by tbe acts of a fellow servant (Railroad Co. v. Baugh, 149 U. S. 369, 13 Sup. Ct. 914); by tbe circuit court of appeals in Railroad Co. v. Ward, 10 C. C. A. 166, 61 Fed. 927; and by tbis court in Railroad Co. v. Charless, 2 C. C. A. 380, 51 Fed. 562. It is true that Finley and tbe plaintiff were employed and paid by tbe same master, and were occasionally brought together in tbe same common employment. “But it is by no means true that all person,swho are in tbe employ of a common master are fellow servants of each other, in tbe sense that one of them is not entitled to reamer from tbe common master for injuries caused by tbe negligence of another employé. Ever since the rule first enunciated in Priestly v. Fowler was sent upon its devious way, there has not been a court in England or tbis country that has maintained tbe contrary. All tbe labor of tbe courts since tbe rule was established at tbe outset has been in determining its principal limitations. * * * Tbe true test, it is believed, wbetber an employé occupies tbe position of a fellow • servant to another employé or is tbe representative of tbe master, is to be found, not from tbe grade or rank of tbe offending or injured servant, but it is to be determined by (.be character of tbe act being performed by tbe offending servant by which another employé is injured; or, in other words, whether tbe person whose status is in question is charged with the performance of a duty which properly 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 what his rank or grade, no matter by what name he may be designated, cannot be a servant within the meaning of the rule under discussion.” McKin. Fel. Serv. § 23. The defendant is not released from liability by the fact that there were superior agents standing between Finley and the corporation, who had control and supervision over his acts. The supreme court: of the United States has repeatedly declared that a master, in employing a servant, impliedly engages with him that the place in which he is to work, and the tools and machinery -which is furnished him, or the in-strumentalities by which he is surrounded, shall be reasonably safe, and that a failure to discharge this duty exposes the master to liability for injury caused (hereby to tbe servant; that it is wholly immaterial how, or by whom, the master discharged that duty; and that the master’s liability is not made to depend in any manner upon the grade of service of a coemployé, but upon the character of the act itself, and a breach of the positive obligation of the master. Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Herbert, 116 U. S. 648, 6 Sup. Ct. 590; Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914; Railroad Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756. These general principles have been universally followed by this court. Railroad Co. v. Charless, 2 C. C. A. 389, 51 Fed. 562; Pacific Co. v. Lafferty, 6 C. C. A. 474, 57 Fed. 536; Railway Co. v. Novak, 9 C. C. A. 629, 61 Fed. 582. It was tbe master’s duty, in the present case, to provide a reasonably safe place for its employés to work, to keep the chutes through which the quartz rock was drawn in reasonably good condition and repair, to employ competent persons in the management thereof, and to notify the workmen engaged in breaking rock in the pit when the rock in the chute would be drawn. This latter duty it delegated to the night boss, Finley. Plaintiff, by Ms contract of service, did not assume the risk that this duty would not be performed.

In Railroad Co. v. Ward, supra, the court of appeals, in discussing a similar question,-said:

“It is not material, therefore, that the switchman, who in this instance was injured, and the track repairers, whose negligence caused the injury, worked in the same yard, and for the same general purpose of maintaining and operating the railroad of the common employer. It was a duty which, under implied contract, the railroad company owed to the switchman, to keep the yard and tracks where he was employed to do his work — hazardous enough under the most favorable conditions — In a reasonably safe condition; and if the trackmen to whom the discharge of that duty was intrusted negligently left in the track, and between the ties, which they had recently been ballasting, a dangerous hole, which caused ihe injury complained of, their negligence was attributable to the plaintiff in error; and the case was properly submitted to the jury without reference to the question of responsibility for injuries caused by fellow servants.”

The present case is distinguishable in some of its facts from Randall v. Railroad Co., 109 U. S. 484, 3 Sup. Ct. 322, upon which defendant principally relies. There the court held that a brakeman working a switch for his train was a fellow servant with the engineer of another train, because, among things, "neither works under the orders or control of the other.” Here it is undisputed that the plaintiff did work under the control of Finley, and was at all times subject to his orders. Although the question whether or not Finley employed and discharged workmen that were under his control might not of itself be conclusive under the test laid down by the court, it was an important factor in determining whether or not he was a fellow servant with the plaintiff or the vice principal of the defendant. Ordinarily, the question whether the servant whose negligence caused the injury is a fellow servant with the injured person is a question of law; yet under all the facts of this case and the law applicable thereto it is made clear that the court did not err- in submitting it to the jury. It was the duty of the court to declare the law, and give the rule as to the definition of fellow servants as applicable to the facts, and for the jury to determine whether under the facts the case came within th!e definition. Especially is this true in all cases where, as here, there was a conflict in the evidence as to some of the essential facts. “The case should not have been withdrawn from the jury unless the conclusion followed as matter of law that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish.” Texas Railway Co. v. Cox, 145 U. S. 606, 12 Sup. Ct. 905, and authorities there cited.

The court did not err in submitting the question of contributory negligence to the jury. This, perhaps, sufficiently appears from what has already been said upon the other branch of the motion, and but little need be added upon this point. It was the duty of the jury, in determining this question, to consider the surroundings in which the plaintiff was placed; the noise of the drills near where he was at work; the fact that the top of the chute was completely covered over with rock to such a depth that it was difficult, if not impossible, to tell where it was. Moreover, the mere fact that there was a conflict of evidence as to whether Finley notified the plaintiff when the rock was to be drawn from the chute made it the duty of the court, under proper instructions, to submit this question to the jury. Kane v. Railroad Co., 128 U. S. 91, 9 Sup. Ct. 16; Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. 118; Railroad Co. v. McDade, 135 U. S. 571, 10 Sup. Ct. 1044; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Railway Co. v. Ives, 144 U. S. 409, 12 Sup. Ct. 679; Railroad Co. v. Amato, 144 U. S. 467, 12 Sup. Ct. 740; Railroad Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 70.

2. After defendant’s motion was overruled, the defendant requested the court to instruct the jury as follows:

/ “(2) To make tlie defendant liable in tbis case for tbe injury received by tbe plaintiff, tbe evidence must satisfy you that tbe defendant was guilty of negligence causing tbe injury to plaintiff; and if you find from tbe evidence that tbe company, by its general manager, or by its superintendent of llio moil under him, directed any one of the oniployéñ or workmen of defendant to notify the men working about tile chutes in the ])it whenever rock was to be drawn from the chutes into the; train, and !imt this was a. standing- rule of the defendant company, then your verdict must be for the defendant, whether such employe gave the notice and carried out the rule or not, as in that case the negligence of such employs in not giving the notice would not be the negligence of the defendant.”

Tlie court modified this by adding the words, “Unless you also find from the evidence that the defendant was guilty of gross negligence in employing as such workmen or employés unsuitable, unskilled, and unreliable persons,” and as thus modified the instruction was given. This instruction, as asked for by the defendant, was clearly erroneous, and it ought to hare been refused. It entirely ignored any reference to the duty which the corporation owed to the plaintiff, and released it from all liability in the premises, provided the jury should find that its general manager or superintendent had directed any of the workmen to notify the men working about the chute when it would he drawn, if there was a standing rule of the company to that effect. There was no rule of the company to that effect offered in evidence. Jt was not shown Unit the company had any “standing rule” upon the subject. The testimony shows that it was ( lie custom of the night boss to give the notice, and that this duty had been assigned to him to perform. If is true that upon the cross-examination of the plaintiff, when asked if that was a rule of the company, he answered in the affirmative; hut it is apparent from the record that he did not mean that the company had adopted a “standing rule.” The instruction authorized the jury to find a, verdict for the defendant if it had such a standing rule, whether the plaintiff knew of it or not. The modification which the court made was also objection-aide in this: that it introduced an issue that was not raised by the pleadings. It does not appear that this specific objection was made in the court below. Courts should avoid stating abstract principles which hare no application to the issues raised in the case either by the evidence or by the pleadings, eren if such principles are, in all respects, correctly stated. Tin' safest course for courts to pursue when an imperfect instruction is asked for is to refuse the instruction, and to embody in its charge a correct statement of the principles applicable to the case. The court, in its charge to the jury in this case, instructed the jury upon all the issues raised in the case as favorably to the defendant as the law would warrant, and, taking all the instructions and charge together, we are of opinion that there is no ground for believing that the jury could possibly have been misled by the modification made to this instruction. How could the defendant have been prejudiced by the modification? It affirmatively appears that the jury must necessarily have found that the injury was caused by the negligence of Finley in failing to give notice to plaintiff when the rock in the chute was drawn. If the jury had found that Finley gave the notice, then, under the charge of the court, the verdict would of course have been for the defendant. If Finley gave the notice, there was no negligence, and the jury could not have found that he was incompetent. If he did not give the notice, he was guilty of negligence, and his negligence was the negligence of tbe corporation, and this warranted tbe jury in rendering a verdict in favor of plaintiff; and it was wholly immaterial whether he was a suitable, skilled, or reliable servant.

3. The defendant further requested the court to give the following instruction:

“(4) The master is never liable for injuries received by a workman in its, employ if tbe injuries are tbe result of any negligence on tbe part of tbe person injured. That is what tbe law calls ‘contributory negligence.’ And if you And from tbe evidence that tbe accident which caused tbe plaintiffs injuries was in any manner tbe result of want of ordinary care on tbe part of tbe plaintiff to avoid tbe accident and escape tbe damage, tbe plaintiff cannot recover, and your verdict must be for tbe defendant,”

—Which the court modified by adding thereto the words:

“Unless you also find from the evidence that tbe defendant was guilty of gross negligence, and tbe plaintiff’s negligence was slight.”

The court did not err in making this modification. Beach, Contrib. Neg. § 9. The judgment of the district court is affirmed, with costs.  