Engen v. Rambler Copper & Platium Co.

121 P. 867, 20 Wyo. 95

• Court: Wyoming Supreme Court
• Decided: March 18, 1912
• Docket: No. 667
• Status: Published

Opinions

Potter, Justice.

This action was brought in the District Court in Albany County by Erling J. Engen against The Rambler Copper and Platinum Company, a corporation, to recover damages for personal injuries alleged to have been sustained by the plaintiff on the 9th day of February, 1909, through the negligence of the defendant. The plaintiff was employed by the defendant to work in and about its mine, and had been so employed for several years whenever the mine was in operation. It is admitted by the pleadings that the mine was operated by means of a shaft sunk thereon to the depth of one hundred .feet and more through which the ore and mineral taken from the underground workings were hoisted to the surface, the answer alleging that the shaft was 170 feet deep; and that a hoist was established at the mine operated by steam power, applied by means of a large boiler and stationary engine and other machinery and appliances necessary for the operation and control of said hoist. The petition alleges that the means provided for the plaintiff to go to and return from his underground place of work was a cage which was raised and lowered by machinery under control of an engineer, and that plaintiff was required to go to and from his work in that way. This allegation is denied by the answer. On the morning of the day above mentioned, for the purpose of being lowered to his place of work, the plaintiff, with five other employes of the defendant, went upon the cage which was operated by said hoisting machinery, and upon a signal or word to the hoistman or engineer indicating that the men were ready to be lowered the cage was started, but instead of descending under the usual control of the machinery provided for that purpose it dropped rapidly to the bottom of the mine resulting in the injuries to plaintiff complained of.

Briefly stated the allegations of negligence are as follows: That the engineer (one Holmes) was incompetent, and careless and reckless by habit, and that the defendant was negligent in employing him. That the shaft house was improperly and negligently constructed, and the pipes conducting water and steam around and over the hoisting machinery were improperly and carelessly placed; that the defendant negligently allowed said pipes and a certain valve connected therewith to get out of repair so that the same leaked, and-the moisture therefrom during the night before plaintiff’s injury was negligently allowed to accumulate upon 'and about the machinery and form frost and ice thereon, thereby rendering the same unsafe and unfit for service. That the defendant did not adopt a necessary and reasonable rule requiring the engineer to raise and lower the cage before the workmen entered thereon in the morning, and did not instruct him to take that or any other precaution to protect the plaintiff; and that the defendant neglected its duty to have the shaft house, hoist and machinery examined or inspected at reasonable intervals of time, or at all. It is alleged that by reason of said negligent acts and omissions of the defendant the cage and machinery became a great danger to plaintiff and an unsafe way of going to and from his place of work; that on the morning in question, •using due care and without any fault on his part, the plaintiff stepped on the cage to be lowered to his place of work; and thereupon, through said alleged negligence of the defendant, the cage was started without being tested, the brakes were useless by reason of said frost and ice, the engineer because of his incapacity was unable to stop the cage, and it dropped down the shaft with great velocity, whereby the left foot of the plaintiff was crushed, and the bones therein dislocated, the muscles and tendons of his ankle joints were torn, and he was severely bruised and greatly injured.

By the first defense in the answer the allegations of negligence' were specifically denied. The answer also contained affirmative allegations in substance as follows: For a second defense, that -each of defendant’s servants, including the hoistman, who in any manner contributed to plaintiff’s injuries was a fellow servant of the plaintiff.' Fox a third defense, that if the person operating the hoist was incompetent the plaintiff was fully acquainted with his character and incapacity, and with such knowledge continued voluntarily to work and descend the shaft in the cage at his own risk and without compulsion on the part of the defendant. For a fourth defense, that the alleged defects in the machinery and appliances, if they existed, were apparent and readily discernible by plaintiff and others, and that plaintiff having the same means as the defendant of- ascertaining the condition thereof continued voluntarily to work in and about the same at his own risk without compulsion from the defendant. For a fifth defense, that the injuries complained of, if sustained as alleged, were due to and caused by one of the risks and dangers incident to plaintiff’s employment; and that he assumed the risk of such injuries and dangers by deliberately selecting the cage as a means of going to work, knowing that it had not been tested, when there were provided for him safe, secure, sufficient and convenient manways and ladders in another compartment of the shaft. For a sixth defense, contributory negligence on the part of the plaintiff was alleged. In connection with the denial of the allegation of the petition charging negligence in failing to have the shaft house and machinery examined' and inspected, it was alleged in the first defense that there were frequent examinations and inspections, and that said shaft house and machinery were examined and inspected daily by- the hoistman and mine foreman and other agents and employees of defendant. The reply which it is claimed was filed denied generally the allegations. of each affirmative defense, and specifically that the hoistman was a fellow servant of the plaintiff, or that plaintiff was negligent at any time or in any manner or thing whereby his injuries were-received; but admitted that the hoistman was defendant’s agent for the examination and inspection of the machinery.

In addition to proof of the fact that plaintiff was employed by the defendant and was injured as above 'stated, evidence was produced on his behalf for the purpose of showing that the person engaged in operating the hoist was incompetent; that there was a defect in the machinery connected with the hoist which caused or materially contributed to the injuries complained of; and that it would have been a reasonable rule to require the cage to be lowered and raised to see that it was in working order before the workmen were allowed to. descend therein to their respective places of work.

The showing made by the evidence relating to the. competency of the hoistman may be summarized as follows: (1) That he was not an engineer by training or profession; that the ordinary duties of a hoistman do not require that he should be a skilled engineer or machinist, and usually he is not, but he should know how to run a hoist, and be a cool, level headed man. (2) That he was nervous and excitable at times, and for that reason an unsafe man for the position in cases of emergency. (3) That he was addicted to the excessive use of intoxicating liquors, though it is not shown that he was ever intoxicated or used intoxicating liquors when at the mine, the showing as to specific instances of his excessive drinking referring to occasions when he was in town. One witness, however, testified that his nerves had become affected by over indulgence in strong liquor, and that his tendency to such indulgence was known among his associates and might have been ascertained by the exercise of ordinary care and inquiry. It appears that there had been a change in the corporation operating the mine, which involved, as we understand, a change of own-, ership, though it is not shown when that change occurred; but after the change Mr. Tannehill, who had been in charge at the mine for several years as foreman or superintendent, appears to have remained there for a time under Mr. Sherwood, the new superintendent. Tannehill testified as to the nervousness and excitability of the hoistman, and, in substance, that on account of his disposition in that respect he always felt that if he (the witness) was away something might happen; but that he (the hoistman) “was as good a man as I could find without trying some new fellow that I didn’t know anything about.” He also testified that he made no objection or complaint about the hoistman to the new superintendent; and it appears that there had been no previous accident at the mine.

As to the defects in the machinery, it was shown that a pipe, “to keep the water from draining on top,” ran from the throttle valve of the engine over the hoist, and that a valve was so placed in that pipe above the hoist that, in case it leaked, the water would fall on the brake, or, as the witness stated, “on the brake — brake seat, just touch it.” That fact was testified to by Mr. Tannehill, the former foreman or superintendent, and who was employed at the mine until about a month prior to the time of the accident in question, and who had installed the machinery; but on cross-examination he testified that he had no trouble from the valve leaking when he was there; that he considered it perféctly safe, and would have changed it if he had not thought it safe. It appears that at the time of this accident the mine was not operated at night, and that the night before the accident was very cold. The plaintiff testified that after the accident he got out of the cage and crawled up a ladder that was in a separate compartment of the shaft, and when he reached the surface was met by the hoistman, Mr. William Holmes, and Mr. Sherwood, the superintendent, each-of whom explained to him that the accident was caused by ice on the brake. His testimony concerning such statements was as follows:

“Q. Did they or either of them undertake to make any explanation to you at the time of the cause of the accident ?

■ “A. Yes, they said there was ice on the brake.

“Q. Did one or both of them make that statement?

“A. Both of them.

“Q. State, if you know, how the ice got there. What did they say as to how the ice got there ?

“A. Well, I believe they claimed that it was a leaking pipe there somewhere around the brake, and that the water, during the night, that the water had dripped onto part of the-machinery and splashed it under the brake and froze.”

(Cross-examination.) “Q. Now, who was it that told you there was ice on the brake? A. Mr. Holmes, himself. That is the engineer, and Mr. Sherwood. Q. When was-that? A. Shortly after I got on the surface. Q. Did they say anything else about it? A.- N'o, only that there was a pipe, a little small pipe, running over the brake, and there was a valve there that was leaking. Q. Now, when did they tell you that? A. Shortly after I got out o'f the mine, I told you. Q. That same day? A. That same day, yes.”

Tannehill,. the former superintendent, and -one Kinney, after a showing as to their competency as witnesses on' the subject, testified that a reasonable rule for the operation of the hoist would have been to require the lowering and raising of the hoist to ascertain that it was in working order before lowering the men down the shaft. The witness Kinney testified that such a rule is necessary and reasonable to provide for the safety of the men, for the reason that the machinery may stick after it has been idle, the brake may stick or there may be something the matter, and a proper test is to run the cage up and down the shaft, and that the rulé is the same in all mines, regardless of the number of men employed. That no such rule was in force at this mine we think sufficiently appears. Mr. Tannehill testifiéd that when he was there the machinery was occasionally tested by lowering and raising the cage, but not generally.

Upon the motion of counsel for'defendant at the close of plaintiff’s evidence the’ court instructed the jury to return a verdict in favor of the defendant, which was accordingly done, and a judgment for the defendant was entered upon the verdict. The rulings upon the motion and the instruction were duly excepted to, a motion for new trial was filed and overruled, and the plaintiff has brought the case here on error.

1. The first -question to be considered arises upon the contention of counsel for defendant that no reply was filed, and that the allegations of new matter in the answer therefore stand admitted. The statute provides that where the answer contains new matter, the plaintiff may reply to the same, denying generally or specifically each allegation controverted by him; and may also allege in ordinary and concise language any new matter not inconsistent with the petition, constituting an answer to such new matter in the answer. (Comp. Stat. sec. 4399.) And that every material allegation of new matter in the answer not controverted by the reply, shall, for the purpose of the action, be taken as true. (Id. sec. 4401.) At the hearing, counsel for plaintiff suggested a diminution of the record, and presented an affidavit of the' Clerk of the District Court, stating that the affiant had' been informed that the original papers transmitted by him to this court did not contain the reply; that under an oral agreement of counsel and the advice of the court -the plaintiff was given permission to file a reply during the trial, and the case proceeded as if the reply had been filed; that the appearance docket kept by affiant shows that a reply was filedand that it was filed either on the 25th or 26th -day of March, 1910, but the original reply cannot b¿ found. An affidavit of Mr. Arnold, one of plaintiff’s counsel, was also presented affirming the truth of the facts stated iri the clerk’s affidavit, and stating further that the case came on for trial March 25, 1910, at which time the court sustained a motion of the plaintiff to strike from the defendant’s answer certain matter as redundant and irrelevant; that to save defendant’s counsel the necessity of preparing a new answer, and to facilitate the business of the court, a jury being then in attendance, it was agreed in open court by counsel for defendant, and at the suggestion of the' court, that the case proceed to trial as if a reply denying new matter had been filed, and that the plaintiff be permitted to file such reply during the trial. That affiant drew the reply, which was verified by the oath of associate counsel on March 25, 1910, and on that day handed to the clerk of court for filing. That an office copy was retained by affiant, and is attached to the affidavit; that the copy so attached' is in all respects an exact copy of the reply that was filed, save andv except that affiant is unable to state positively whether it was sworn to before the clerk of court or a certain named notary public. The copy attached to counsel’s affidavit shows that each and every allegation of new matter in the answer here claimed to stand admitted for want of a reply was denied. No contrary showing was made. Counsel for plaintiff asked leave to file the copy of the repfy authenticated by said affidavits as a part of the record, that it may be considered as the reply filed in the cause.

The record supports the showing made by the affidavits in these respects: It appears thereby that plaintiff’s motion to strike from the answer the seventh defense and a large part of the first defense was sustained March 25, 1910; that the trial commenced on that day and continued through the following day, and that the motion for a directed verdict was taken under advisement, and decided on March 28, 1910, which is also the date on which the verdict appears to have been filed. And if it be conceded that proof of the facts alleged as new matter in the answer, or an admission that they were true, would defeat recovery, it appears-that a failure to file a reply was not mentioned as a ground for the motion for peremptory instruction in favor of defendant, although several grounds for that motion were specifically stated, which would seem to indicate an understanding that the reply might be filed during the trial, and that the trial had proceeded as though the necessary reply had" been filed.

The rule is apparently well settled that after a contest on • the merits, as if new matter in the answer were denied, the. want of a reply will be deemed waived, or the reply will be presumed to have been lost. (1 Bates Pl. Pr. Par. See., 398; Jordan v. Bank, 74 N. Y. 467; Franc v. Nirdlinger, 41 O. St. 298; Nor. Supply Co. v. Wangard, 123 Wis. 1; Ames v. Parrott, 61 Neb. 847.) But without deciding whether the original record in this cause would warrant the inference that the reply was waived, the showing made upon the suggestion of a diminution of the record is clearly sufficient, we think, to show that a reply was properly filed and that the same has been lost. Upon that showing the authenticated copy will be permitted to be filed as part of the record and be considered as the reply.

2. A witness, who for a month or more about six months prior to the accident had been employed as engineer or hoistman at the mine, was asked by plaintiff’s counsel about the condition of the machinery when he was there. Thereupon the court inquired as to the time referred to, and counsel stated that it was six months before, and that they proposed to show the condition of the machinery six months prior to that, and again after the accident, for the purpose of showing that it was in the same condition. An objection to the offer as too remote was sustained, the court saying: “Confine it to the day of the accident.” -The ruling was excepted to and is here assigned as error. .Before the ’offer was made plaintiff had given the testimony above quoted as to the statements made to him to the effect that the accident was caused by ice on the brake resulting from a leaky pipe above the hoist, and it is evident that his counsel relied thereon as evidence tending to show that on the day of the accident or the night before there was a leak in the valve that was in the pipe above the brake, and that such defect was the proximate cause of the injuries; and we think that their offer is to be fairly understood as proposing to show that the same defect existed six months and more before as well as after the accident. If that condition before the accident could be shown it would have been competent for two reasons. It might tend to show the leaky condition of the valve on the day of the accident, particularly in connection with' the statements of the superintendent and hoist-man, and might be important as identifying the leaky pipe referred to by such statements. Further, it was necessary for plaintiff to show actual or constructive notice of the defect on the part of the defendant to charge it with liability on the ground that it had not exercised the care required tkeep its machinery and appliances in reasonably safe repair, for the protection of its employees, and it is not the law that for such purpose inquiry concerning the alleged defect must be confined to the day of the accident, but evidence of the condition some time prior thereto and down to the time of the accident is admissible. (Shea v. Pac. Power Co., (Cal.) 79 Pac. 373; Austin v. Fitchburg R. R. Co., 172 Mass. 484; Rockford City Ry. Co. v. Blake, 173 Ill. 354; Reese v. Min. Co., 17 Utah, 489; Island Coal Co. v. Neal, 15 Ind. App. 15; Chicago &c. R. R. Co. v. Chipman, 87 Ill. App. 292; Colo. Mortgage Co. v. Rees, 21 Colo. 435; Richmond Ry. &c. Co. v. Bowles, 92 Va. 738; Welfelt v. Illinois Cent. R. Co., 149 Ill. App. 317.) In the Colorado case cited the court say as to evidence offered tending to show a previous and continuous defective condition: “The evidence was relevant for this purpose, and also competent to show notice and knowledge on the part of the company.” In Austin v. Rail-x-oad, supra, the court say: “We think that it would have been competent for the jury to find that the car had been some days at least in an unsafe condition for transportation, and that the defendant knew or ought to have known of its condition.” In Coal Co. v. Neal, supra, evidence of' the condition of the roof of a mine in which an accident occurred for a year prior thereto was said to he “clearly admissible, when taken in connection with evidence that the same condition remained until the accident, as it certainly tended to charge appellant with knowledge of the defect, because if it had thus long existed it might by the exercise of reasonable care have been discovered.” And in the California case cited, evidence of the existence of the alleged defect a year or two before the accident was held admissible, where the offer was coupled with a proposal to show that the same condition continued down to the time of the accident. We think .the exclusion of the evidence as to the condition before the accident was error. It is contended by counsel for defendant that the witness gave substantially the evidence that was offered in answering other questions. We do not think so, nor was the error cured by the fact that afterwards the -witness Tannehill testified on cross-examination that he had no trouble with the valve leaking when he was there. We know of no reason preventing the plaintiff from showing the condition by two or more witnesses within .reasonable limits, but we fail to find that the evidence offered and excluded was covered by the testimony of any other witness.

3. Counsel for defendant contends that the plaintiff’s injuries were caused by his own negligence in selecting the cage to descend to his place of work instead of going down the manway or ladders that had been provided by the defendant for that purpose in another compartment of the shaft. This is not sustained by the evidence. While it appears that provision had been made for going into the mine by means of ladders so constructed that there was a platform every twelve feet, it was abundantly shown that the customary method employed by the men in going to and from their work in the mine was by the cage, and the evidence tended strongly to show defendant’s knowledge of such custom and that it permitted the same without obj ection for such a period of time as to justify a belief that it assented thereto. It appears that while Mr. Tannehill was superintendent he frequently went down the shaft that way and occasionally with the men. He testified that up to the time he went away from there, “we always went up and down the cage, when it was possible to go that way. Of course, if the cage was out of use, or in use for something else, we went on the ladder, but then it was very seldom that anyone went on the ladder”; and, further, that he may not have directed the men to go by the cage, but “it.was the general understanding.” It appears that there was no order or rule requiring the men to use the cage for the purpose stated or directing them not to do so; and though the workmen who testified stated that they might have used the ladders, they did not usually do so, and one of them testified that they would have lost their job if they did. None of the witnesses testified that the purpose of the ladder or ladders was for the convenience or use of the employees in going to and returning from their places of work in the mine, but the testimony tends to show that it was generally used for a different purpose. Upon the evidence it cannot be held as a matter of law that in using the cage as a means for descending the shaft to his place of work, the plaintiff was negligent. This point was not stated as a ground for the motion for the peremptory instruction. If there is anything in the proposition it was at least a question for the jury. (Boyle v. Columbian Fire Proofing Co., 182 Mass. 93; Stringham v. Stewart, 100 N. Y. 516.) In a case where it did not appear that the employer was aware of a similar custom of its employees or that it had ever authorized it, liability for an injury occurring thereby was denied. (Gribben v. Min. & Mill. Co., (Cal.) 75 Pac. 839.) That is not the situation in the case at barf

4. The evidence tends to show that the accident was caused by the fact that there was ice on the brake formed by the freezing of water that had fallen upon it from the valve in the drain pipe running over the hoist as above described, whereby the brake became of little if any use in regulating the descent of the cage. If that is true it would follow as a necessary inference that the valve leaked. Having been so located that in case of a leak the water from the valve would fall upon the brake, and by freezing if not otherwise interfere with the proper operation of the hoist, it became the duty of someone to be reasonably prudent in keeping it in repair, or ascertain by the exercise of reasonable care that the brake and other parts of the hoisting machinery were in working order. It is contended by counsel for defendant that if there was any negligence in that respect or in any other that caused the accident it was the negligence of the hoistman, a fellow servant of the plaintiff, for which the defendant would not be liable. Counsel for plaintiff contend that the proximate cause of the accident and the resulting injury to the plaintiff was the negligence of the defendant in allowing the valve to remain where it was placed, and in failing to exercise proper care to keep it in reasonably safe repair, as well as in the employment of an incompetent hoistman, and failure to inspect and to adopt a reasonable rule for testing the hoist.

Before proceeding to discuss the question thus presented it should be stated that there is nothing in the evidence to show the condition of the valve as to leaking prior to the night of the accident, unless something in that connection might be indicated by the statements made to the plaintiff immediately after the accident above alluded to; but the absence of such evidence may have occurred through the'' ruling of the court confining the showing to the day of thé accident.

There is no statute in this state defining the relation of fellow' servants, or changing or modifying the rules which have been established ’ by judicial decisions upon the principles of the common law for determining the liability of an employer for injuries sustained by an employee in the discharge of his duties. Statutes have «been enacted imposing certain duties upon an employer in specified cases and giving the right of action for damages where an injury has occurred as a result of a willful violation of such duties, but they are not applicable here.

The principle that in the absence of a statute providing otherwise the master is not liable in an action for damages for an injury occurring to an employee through the negligence of a mere fellow servant is too well settled to require discussion, and was recognized and applied in McBride v. Union Pac. Ry. Co., 3 Wyo. 248. But it is equally well settled that certain duties are personal to the master and cannot be delegated, so that if the servant charged with the performance of those duties fails to perform or negligently, .performs them, the master cannot escape liability on the ground that such negligent servant was a fellow servant of the one injured. That rule was also referred to and stated in the case cited as one of the exceptions to the general principle exonerating the master from liability for the negligence of a fellow servant. It is the duty of the master in the performance of such non-delegable duties to exercise ordinary or reasonable care, or, as otherwise expressed, the care and skill that a man of ordinary prudence would observe under the circumstances. And it is generally held that it is the master’s duty for the protection of his employees to exercise such care and skill in. the following particulars among others: (i) To furnish them with reasonably safe machinery, appliances, tools, and place to work, and to keep the same in reasonably safe repair. (2) To employ competent and sufficient employees with whom to work. (3) To establish and enforce reasonable rules for the safé conduct and regulation of his business. (2 Thomas on Negligence, 2nd Ed., p. 1389; 4 Thomp. Com. on Neg., sec. 3767.) For the negligent performance of any of these duties dr the negligent failure to perform the same, the master is therefore liable whenever it appears that such negligence, either alone or concurrently with the negligence of one for whose conduct the master would not be answerable, is a proximate or efficient cause of the injury complained of.

The duty of providing and maintaining a reasonably safe place in which to work and reasonably safe machinery, and appliances, requires reasonable inspection and tests. The duty of the employer to guard his workmen against unnecessary and unreasonable risks extends not only to those that are known to him, but also to such as a reasonably prudent man in the exercise of ordinary diligence would know or discover, having regard to the danger to be avoided. (4 Thomp. Com. on Neg.,. sec. 3783.) As' to this matter, however, there exists a well recognized distinction between defects or dangers which arise in the progress of the work and constitute part of its details and risks, and those which do not. If the defect belongs in the former class the master is not liable, that is to say, where he has' done all that is incumbent upon him in providing for the safety of the place, machinery or appliances, then if the same becomes unsafe by reason of changes incidental to the progress of the work, or by reason of the conduct of the fellow servants of the servant injured the master is not answerable. (Id., secs. 3781, 3876.) But where the duty of inspection exists the one who is selected or employed to perform it represents the master, and his negligence in performing or failing to perform the duty is the negligence of the employer.

We think the evidence tended to show that the falling of the cage was the result of negligence, and that it was sufficient to be submitted to the jury upon that question, unless it can be held as a matter of law either that the cause of the accident was the -negligence of the hoistman as a fellow servant of the plaintiff, or that for some other reason appearing from the-evidence the defendant would not be liable. It is uniformly held that where the injury is caused by negligence in the performance or failure to perform one of the positive duties of the employer the fellow servant doctrine does not apply, for as to such duty the negligent servant upon whom the duty rested is regarded as a vice-principal, and his act or failure to act as the act or failure of the employer. In other respects the authorities are conflicting concerning the rule for determining, in the absence of statute, when the relation of fellow servants exists. What may be said to be the prevailing rule because it seems to be the one more generally adopted is that .the fact which determines whether the negligent employee is a fellow servant of the one injured or a vice-principal is not his grade or rank but the character of the act or service. That has been the doctrine of the Federal courts at least since the decision in the case of Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368, where it was said: “If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor.” And in New England Railroad Co. v. Conroy, 175 U. S. 323, the opinion in the Baugh case is quoted from with approval, and the earlier case of Chicago, Milwaukee & St. Paul Railroad v. Ross, 112 U. S. 377, was overruled, in which it had been held that a conductor of a freight train, by reason of his authority as the one in charge of the train, was a vice-principal; the court saying as to that case: “We think it went too far in-holding that a conductor of a freight train is, ipso facto, a vice-principal of the company.” .

The question is not here involved whether in every case it would be improper to consider the relative rank or superior authority of the one shown to have been negligent, especially where the authority is general over the entire business or over a large and distinct department, and we shall therefore express no opinion concerning it; .but as a general rule we think the one above stated is best sustained upon principle and authority, viz: that the character of the service rather than the grade or rank is the determining factor. One of the positive duties of an employer is said to be that of supervision, and it may be that the general rule stated affords adequate protection to those in subordinate positions against the negligent acts’ of a superior without the necessity of qualification or exception. The case of McBride v. Union Pacific Ry. Co., 3 Wyo. 248, has been cited as approving the superior servant rule announced in the Ross case. (2 Bailey on Per. Inj., sec. 737.) When the McBride case was decided Wyoming was a territory and the decisions of its courts were controlled by those of the Supreme Court of the United States as the court of last resort; it would be more correct, therefore, to say that the Ross case was followed and applied so far as the question was involved. While that rule seems to have been applied in the McBride case, it was not independently stated or discussed.

In the absence of a statute providing otherwise, and where it does not appfear that the negligence of the hoistman causing the injury complained of occurred in'the performance or failure to perform a positive duty of the employer, by the clear weight of authority it is held that as to his duty to lower men to their work in the mine he is their fellow servant. (Bartonshill Coal Co. v. Reid, 3 Macq. 266, 19 Eng. Rul. Cas. 107; Bradbury v. Kingston Coal Co., 157 Pa. St. 231; Mulhern v. Lehigh Valley Coal Co., 161 Pa. St. 270; Buckley v. Gould &c. Min. Co., 14 Fed. 833; Wood v. New Bedford Coal Co., 121 Mass. 252; Trewatha v. Buchanan &c. Min. Co., (Cal.) 28 Pac. 571; Spring Valley Coal Co. v. Patting, 86 Fed. 433; Stoll v. Daly Min. Co. (Utah) 57 Pac. 295.) And likewise the engineer operating an elevator. (Spees v. Baggs, 198 Pa. St. 112; Stringham v. Hilton, 111 N. Y. 188; Wolcott v. Studebaker 34 Fed. 8; Mann v. O’Sullivan (Cal.) 58 Pac. 375.) In Illinois the con-association rule prevails viz: .That to constitute the servants of a common master fellow servants so as to exonerate the master from liability for an injury caused to one of them through the negligence of another, it is necessary that they should be at the time actually co-operating with each other in the particular business in hand in the same line of employment, or that their duties should be such as to bring them into habitual association, so that they may exercise a mutual influence on each other promotive of caution. Applying that rule it is held in that state that the hoistman and miner are not fellow servants. (Spring Valley Coal Co. v. Patting, 210 Ill. 342; Illinois &c. Co. v. Cioni, 215 Ill. 583.) In those cases it appeared, however, that the engineer received his signals from either a top eager or a bottom eager, and that the miner injured had nothing to do in that connection. There were only a few men employed in the mine in question, and the signal to start the cage was given by the men or one of them about to be lowered down the shaft, so that it must be held in line with the great weight of authority, that except as to some positive duty of the defendant to be performed by the hoistman, the latter was a fellow servant of the plaintiff; and an instruction to that effect upon the undisputed evidence would have been proper. , Also that for his negligence as such fellow servant the defendant would not be liable,, unless it was shown that he was incompetent, that the defendant negligently employed him or retained him in its employ as hoistman, and that his unfitness for the position was the proximate or efficient cause of the. injury. There was evidence tending to show that he was addicted to the use of intoxicating liquors, and that his capacity was affected thereby. Not only was it the duty of the defendant ordinarily to exercise reasonable care in selecting a competent hoistman and one not habitually addicted to the use of intoxicating liquors so that if its negligence in that particular caused an injury to another employee not himself at fault the defendant would be liable, but the statute declares that no person addicted to the use of intoxicating liquors shall be employed as hoisting engineer. (Comp. Stat. 1910, sec. 3491.) By reason of that statute, if not otherwise, it was at least the duty of the defendant to make or cause to be made reasonable inquiries concerning the habits of Holmes, the hoistman, as to the use of intoxicating liquors, and a failure to do so would constitute negligence. While it might be seriously doubted whether the evidence on this subject reasonably considered shows that the accident may have been the result of the holstman’s incompetency, assuming him to have been incompetent, it should have been submitted to the jury with'all the other evidence in the case for their determination as to the proximate cause of the injuries complained of; for we do not think that the peremptory instruction can be sustained on the theory that the evidence justified the court in saying-as a matter of law that the proximate cause of the injury was solely the negligence of a fellow servant.

The existence of the relation of fellow servants is a question of law where all the facts relating to the matter are conceded or undisputed, and all reasonable minds must draw the same conclusion therefrom. Where the evidence is not thus conclusive, or the facts are disputed, the question is at least a mixed question of law and fact, to be determined by the jury under proper instructions'. The question was presented upon the pleadings and' the evidence whether the hoistman was charged with and negligent concerning the performance of a positive duty of the defendant, as well as the question whether the defendant was negligent respecting the duty to provide and maintain reasonably safe machinery, including the duty of reasonable inspection, and to adopt and enforce reasonable rules for its operation. The answer does not specifically allege that it was the hoistman’s duty to inspect the machinery, but it does allege that the machinery was daily inspected by the hoistman, the mine foreman, and other agents and employees of the defendant; and the reply admits that the hoistman was defendant’s agent for the purpose of inspection. In Fox v. Iron Co., 89 Mich, 387, upon the general rule above stated for determining the relation of fellow servants, it was held that the head engineer who was charged with the duty of keeping a certain hoisting apparatus in repair, was as to that duty not a fellow servant of the plaintiff who was injured, for the duty belonged to the corporation to perform. And in Atchison &c. R. Co. v. Mulligan, 67 Fed. 569, that respecting the duty of inspecting a locomotive engine the engineer represented the company, and was not -the fellow servant of another employee injured as the result of a defective condition.

There is very little in the evidence touching the matter of the hoistman’s duty beyond the showing that it was his duty to run the engine and hoist. Whether the leak in the pipe or valve or the presence of ice on the brake could have been discovered upon a reasonable examination, and whether such examination should have been made owing to the coldness of the weather, if not otherwise, were, if not questions of fact alone, at least mixed questions of law and fact to be properly submitted to the- jury, or, to state the matter in more general terms, it should have been left to the jury to determine under proper instructions whether the negligence, if any, that caused the injury was the negligence of a mere fellow servant, or the negligence of the defendant respecting its duty to provide and maintain reasonably safe machinery. We think also that upon the evidence the question should have been submitted to the jury whether there was negligence on the part of the defendant in failing to require as a reasonable rule the testing of the machinery by lowering and raising the cage before allowing the workmen to use it.

Jt would clearly be the duty of the defendant to repair the leak in the valve, if dangerous, unless the defect was one occurring in the progress and as one of the details of the work of operating the hoist or machinery and to be attended to as part of that work; and the failure to do so after notice of the defect, or under circumstances sufficient to charge the defendant with notice, would be negligence. We are not prepared to say that the evidence as to notice was sufficient to require or justify the submission of this question to the jury, for, as above stated, there is no direct showing as to the length of' time the defect had existed, nor as to actual notice prior to the accident. The only evidence in support of the allegation that the hoist was improperly constructed is that of Mr. Tannehill, who installed the machinery, and who testified that the valve was so placed that if it leaked the water would fall on the brake; but on cross-examination, he testified that he considered that to be perfectly safe, and if he had not thought so he would have changed it. We cannot say, therefore, as a matter of law that there was improper construction, nor do we think the evidence on this point would furnish any ground for holding the peremptory instruction to be prejudicial error. We shall refer to a few cases seeming to be analogous in- prin-■ciplc .as illustrating and supporting the views abo-vp expressed. • • . . .

In Alaska United Gold Min. Co. v. Keating, 1-16 Fed. 561, decided by the Circuit Court oí Appeals for. the Ninth Circuit, the action was brought to recover damages for a personal injury to a miner caused by the cage in which he was being lowered in the shaft coming suddenly in contact with a chair or.bar that had been-negligently left down and across the shaft at a point about 290 feet below the surface. The trial court instructed the jury that the negligence in leaving the chair or bar down and across, the shaft was the negligence of a fellow servant, and not the carelessness or negligence of the defendant, and that the- verdict should be for the defendant. The court say: “This instruction was clear, positive, and direct, and disposed of the question-of liability of the defendant in this action, with one single qualification, and that was the question, did the defendant owe to the plaintiff a positive duty to use reasonable precaution to ascertain whether the shaft was clear of obstructions before lowering him ¡down the shaft to his place of work. This question the court submitted to the jury as a question of fact to be determined from the evidence relating to the custom in the operation of mines where this precaution was taken to secure the safety of the workmen. A number of witnesses testified that such a custom did prevail in many mines, because of the danger of obstructions and displaced timbers in the shaft caused by blasting operations. There was also the inference that the time elapsing between the coming up of the night shift and the going down of the day shift, to which the plaintiff belonged, made it specially necessary that the effect of such disturbances should be ascertained before sending workmen down the shaft. What was a reasonable precaution to be taken by the defendant to secure the safety of the plaintiff, under the circumstances of the case, was a question of fact for the jury, and justified the instructions of the court.” The case of McFall v. Ia. Cent. Ry. Co., 96 Ia. 723 & 104 Ia. 47, was an action against a railway company for injury to a brakeman through th$ alleged negligence of the defendant in permitting its water tank to become out of repair, whereby the water was permitted to run on and over the tracks, forming a sheet of ice thereon, which rendered the same dangerous for brakemen to perform their duty of coupling cars passing on its tracks and over said ice. It was held that there being evidence tending to show, negligence on the part of the defendant and that plaintiff was not guilty of negligence, the question was for the jury, and a direction to find for defendant was error.

In the case of Balhoff v. Mich. Cent. R. Co., 106 Mich. 606, it appeared that a brakeman was killed by the derailment of a car that was being backed upon a side track, caused by the formation of ice on the tracks at a point where there was a slight depression in the roadbed. Held, that it was the duty of the defendant to provide a reasonably safe track, one which, .measured by the standard of good railroading as actually conducted, can be said to be reasonably safe, and if such standard required the danger of ice freezing over the track to be foreseen, and the making of provision to prevent it, then'it would be negligence to omit such provision; and the same rule would furnish the test of the adequacy of provisions made. Held, further, that these were questions of fact, unless the evidence was conclusive and uncontradicted, one way or the other; and that not being the case, it was a question for the jury whether a reasonably safe place had been furnished by the defendant. In Louisville & Nashville R. Co. v. Kemper, 153 Ind. 618, where it appeared that the railroad company permitted a portion of its roadbed underneath the cross-ties to become soft by reason of the flow of water from a hydrant of the company, so .that- the rails and cross-ties would sink down when the weight of a car was placed thereon, such condition not being obvious or apparent, but being known to the company, or by the exercise of ordinary care discoverable by it, the company was held negligent in failing to keep the roadbed in a sound and safe condition for the protection of its employees.

It was held in Fifield v. Northern Railroad, 42 N. H. 225, that an action may be maintained against a railroad corporation for an injury to a brakeman caused by the negligence of the company in permitting its road to become blocked with snow and ice, and a car to be out of repair, the plaintiff being.in no fault. The court said: “Whether the negligence (of the master) consisted in not discovering or in not removing the defects himself, or in not employing any or a sufficient number of repair-menj or competent ones,- the action could be founded upon his personal negligence. * * * Ordinary care and prudence may have required that workmen should have been employed to repair the cars, and to remove the .snow and ice from the track.”

It appeared in the case of Courtney v. Cornell, 49 N. Y. Super. (17 J. & S.) 286, that the plaintiff was injured while employed by defendants in operating a derrick used in constructing a building, and was injured as the result of the slipping of the derrick from its place while in use. The accident was caused by the stretching of the guy ropes from rain which fell the night before the morning of the accident, and there was evidence that the accident might have been prevented by proper precautions, one of such precautions being the usual one after a rainy day, according to the testimony of an expert witness, of testing the ropes by raising from the ground the iron column for which the derrick was used, watching it to see what the rope gives, and then straightening the derrick up again. It was the duty of defendant’s foreman to construct and rig the derrick, and he superintended the starting of the derrick on the morning of the accident immediately prior thereto. It was held that the dismissal of the action at the trial was error; that it was the continuous duty of defendants to furnish their employees a properly rigged derrick, and to maintain it in such condition; and that the foreman’s negligence in that regard was the negligence of defendants, for as to such duty the foreman was not the fellow servant of the plaintiff, though in other respects he might 'have been, but was the agent and representative of defendants concerning the duty of the latter to provide and maintain a safe derrick for the workmen, so far as reasonable car.e and precaution could affect that result. (See also Harsen v. N. P. R. Co., 139 Wis. 186; Thomas v. Ross, 75 Fed. 552; Donnelly v. Granite Co., 90 Me. 110; Mayer v. Liebmann, 16 App. Div. N. Y. 54; Lawson v. Truesdale, 60 Minn. 410; Nutzman v. Germania Life Ins. Co., 78 Minn. 504; Kreigh v. Westinghouse & Co., 214 U. S. 249.)

It does not appear that it was any part of the plaintiff’s duty to inspect the machinery, and we perceive nothing in the evidence that would justify taking the case from the jury on the ground that the plaintiff ought to have known of the alleged defect that may have caused the accident, or that he was himself negligent. Nor can such action be sustained on the ground suggested in defendant’s brief that the accident was the result of an act of God. “If there is any intervening human agency which contributes to cause the damage it cannot be considered as caused by an act of God.” (Sandy v. Lake St. El. R. Co., 235 Ill. 194; Welfelt v. Ill. Cent. R. Co., 149 Ill. App. 317.) The fact that the water on the brake froze because the night before the accident was very cold would not exempt the defendant from liability, if it should be found that the negligence of the defendant in failing to repair a defect, the existence of which it knew or ought to have known by the exercise of reasonable care, or .in failing to inspect, or in any other particular within the allegations of the petition, was a proximate cause of the injury. For the reasons stated the judgment must be reversed and the cause remanded for new trial.

Heard, C. J., concurs. Scott, J., did not sit.