Rankel v. Buckstaff-Edwards Co.

120 N.W. 269, 138 Wis. 442, 1909 Wisc. LEXIS 86

Opinions

Siebecker, J.

The plaintiff challenges the correctness of the trial court’s ruling as to all the questions involved in directing a verdict for the defendant. We will examine them as presented.

The first contention is that the plaintiff was in the employ of the defendant as its servant at the time of the accident. This is denied by the defendant, and it asserts that he was in the employ of one Heidlinger, who, it claims, had contracted to erect the mill for the defendant. The facts adduced establish that Heidlinger was employed by the defendant to attend to the construction of the mill, the defendant to pay him a compensation at the rate of $5 per day for the time he was so engaged. It also appears that the defendant was to fur- liisb all tbe materials for tbe structure aud. for tbe prepara-tiou of tbe grouuds, aud tbat it was to pay tbe daily wages ■of all tbe meu needed in erecting tbe structure. Tbe men were hired by Heidlinger, and be took account of tbeir time .and presented it to tbe defendant’s officers, received tbe amounts due bim for wages and due tbe men wbom be bad engaged, and paid tbem, retaining out of tbe sum so paid bim by tbe defendant tbe amount due bim as ‘compensation for bis time at tbe rate agreed upon by bim and tbe defendant. It is also shown tbat tbe defendant’s officers exercised a control over tbe undertaking to tbe extent of directing its progress, course of procedure, and general management. Tbe evidence does not establish tbat defendant and Heidlinger agreed tbat Heidlinger was to have tbe right to control tbe erection of tbe structure and was to be responsible for tbe cost of tbe work and tbe wages of tbe men employed. It is manifest tbat tbe defendant was responsible to all persons engaged on tbe job, and tbat Heidlinger merely acted as its agent in securing tbeir services. Under these circumstances it cannot be said tbat Heidlinger bad contracted witb defendant to •erect tbe mill according to bis own method and without being subject to tbe control of tbe defendant except as to tbe result of tbe work. Upon tbe evidence it must be held tbat tbe plaintiff was in defendant’s employ at tbe time of tbe accident. Erom tbe foregoing conclusion it follows tbat Span-bauer was in defendant’s employ when be was conducting the; operation of blasting tbe earth at tbe mill site.

We are persuaded that' tbe defendant exercised reasonable •care in selecting Spanbauer as one competent to do tbe blasting. Whether or not Spanbauer proved to be competent to perform this highly dangerous service does not determine this •question. Tbe inquiry is: Did tbe defendant act upon such information respecting Spanbauer’s skill and competency in this regard as that upon which ordinarily prudent men will act under tbe same or similar circumstances? If so, it ful filled its measure of duty to its other servants in the selection of employees. It is shown that Heidlinger apprised the defendant’s officer in charge of the construction that he had not-the knowledge and skill to set the loads of dynamite and explode them. Thereupon he was directed by defendant to obtain for this purpose a competent blaster from among the men engaged in this service in a neighboring quarry. Pursuant to this direction Heidlinger applied to the person operating the quarry, and was informed that Spanbauer was engaged at the quarry and understood the business. It is manifest that the officers of the defendant and Heidlinger knew that persons were engaged in blasting in the quarry, and understood from the representations of the person operating that-Spanbauer had performed this service and was skilled in it. Their conduct in this respect was that of reasonable and careful men and acquits them of the charge of negligence in this, respect.

It is insisted by respondent that, if the plaintiff was in defendant’s employ in performing the service at which he was injured, then defendant is not liable therefor, because it was caused by the negligence of Spanbauer, who was a fellow-servant of the plaintiff in the work of blasting. The trial court held this contention of the defendant to be sustained by the facts of the case under the ruling in Wiskie v. Montello G. Co. 111 Wis. 443, 87 N. W. 461. In the Wiskie Case the plaintiff, while assisting the foreman of the quarry in conducting the blasting, was injured through the unexpected explosion of part of a powder blast which the foreman had negligently permitted to remain and near which he had set the plaintiff at work. The facts of the case show that Wiskie and the foreman had jointly placed the blast, that they worked together under the foreman’s direction at raising and blasting rocks, and that they had been so engaged for a long time before the accident. It was held upon these facts that Wiskie and the foreman were engaged in a common service- of blasting rocks wben Wiskie was injured. Erom an examination of tbe facts in tbat case it is manifest tbat Wiskie and tbe foreman were jointly performing tbe same task and were engaged in a common service; but we do not find a like state of facts in tbe instant case. Here tbe defendant bad employed tbe plaintiff to belp remove tbe earth for tbe foundation of tbe mill. Tbe defendant in tbe course of tbe prosecution of such work decided to employ a blaster to break tbe frozen ground so as to expedite tbe work. Spanbauer was engaged for this purpose and was employed at this special work for two days. Tbe work was conducted as follows: Plaintiff and tbe other workmen at tbe excavation drove boles with iron bars into tbe earth for setting dynamite charges in. Spanbauer then took charge of tbe work. He placed tbe dynamite charges in tbe boles, packed them with earth, connected them by wire with an electric battery, and discharged them by turning on tbe electric current. Neither tbe plaintiff nor tbe other workmen took part in setting and packing in tbe charges or in connecting them by wire with tbe battery or in discharging them. All of this was under tbe control of and was performed by Spanbauer in tbe capacity of blaster. Erom this it appears tbat tbe setting and exploding of tbe blast was exclusively intrusted to'the expert and tbat plaintiff took no part in performing this service. It is obvious from tbe dangerous character of this service tbat it was treated as separate and distinct from tbe service plaintiff and tbe other workmen were performing in excavating the earth for tbe foundation of tbe mill. In tbe Wiskie Case tbe plaintiff assisted tbe expert in performing tbe work of blasting. In tbe instant case tbe plaintiff did not assist or engage in tbe work of blasting, and herein tbe two cases are widely distinguished. In tbe former tbe plaintiff and expert were engaged in tbe common service of blasting. In tbe latter tbe plaintiff and tbe expert were engaged in separate and distinct services, which were different in nature and in tbe hazards and dan gers incident thereto. True, they both served a common master and occupied the same place while performing their respective duties, but the operation of blasting was wholly different, distinct, and independent of the employment of the excavator engaged in the construction of the mill. The risks and dangers of blasting are not ordinarily incident to the service plaintiff was performing. These features and conditions of the instant case clearly differentiate it from the Wiskie Case. Upon these considerations the ruling of the trial court that plaintiff and Spanbauer were fellow-servants cannot be approved. The case must be treated from the standpoint that plaintiff was the servant of the defendant and was not engaged in the operation of blasting with Spanbauer, who acted alone for the defendant in using and handling highly explosive and dangerous agencies for blasting the earth. Cadden v. Am. S. B. Co. 88 Wis. 409, 60 N. W. 800.

Nor can the plaintiff be treated as one informed of the dangers which are incident to the want of a proper conduct of the blasting operation. The nature of plaintiff’s work and his relation to the blasting did not inform him of the unsafe condition of the place where he was directed to proceed with the work of excavating after Spanbauer had exploded the blast and had pronounced the place safe for continuing the work of excavating. While the plaintiff knew that an explosive was being used by Spanbauer to expedite the work, he was not informed of the particular danger to him from a failure to discharge part of the dynamite charges. He had no reason to apprehend that an undischarged load was hidden in the earth where he was put to work. He was in fact led to believe by the expert that the place was safe.

It does not appear that plaintiff was instructed or warned of the extraordinary hazards and dangers incident to the use of dynamite, and he cannot be held to have assumed the risks thereof as dangers ordinarily incident to his employment. It devolves on the master, who finds it necessary and expedient to use hazardous agencies in tbe conduct of bis business, to inform bis servants, not informed on tbe subject, of tbe extraordinary risks and dangers attending tbeir use, in order that they may avoid them by refusing to continue in tbe service, or may otherwise protect themselves against them. Tbe evidence in tbe case bearing on tbe question of defendant’s negligence was such as to present questions for solution by a jury, and it was error to direct a verdict for tbe defendant.

By the Court. — Judgment reversed, and tbe cause remanded to tbe trial court for a new trial.