In doing work upon an appliance in a mill, intended to be used in facilitating the carrying on of defendant's business, a servant occupies the place of the master; and hence, if the work is improperly or negligently done and the plaintiff is injured thereby, he, being free from contributory negligence, is entitled to recover. The fellow-servant rule has no application to such a set of facts. Dictum in Laporte v. Cook, 21 R.I. 158, distinguished. (2) Contributory Negligence. Question for Jury. Where the evidence is such that different minds, fairly considering it, might draw different conclusions therefrom, the question of contributory negligence is for the jury to determine.
At common law, a Rhode Island employer owed to its employees the duty to provide and maintain a reasonably safe work environment; to provide whatever appliances, tools, and equipment that the employee needed to do his or her job safely; to provide a sufficient number of suitable and competent fellow employees to permit safe performance of the work; to warn employees of unusual or nonobvious hazards; and to make and enforce safety rules. See Faltinali v. Great Atlantic Pacific Tea Co., 55 R.I. 438, 444-45, 182 A. 605 608-09 (1936) (duty to provide reasonably safe workplace); Connor v. White, 41 R.I. 219, 223, 103 A. 561, 562 (1918) (employer must exercise reasonable care in the selection of an employee's fellow workers); Savage v. Rhode Island Co., 28 R.I. 391, 401, 67 A. 633, 637 (1907) (company had duty to warn employee of hidden or extraordinary dangers and instruct him or her with respect thereto); Laporte v. Cook, 21 R.I. 158, 160, 42 A. 519, 520 (1899) (employer has nondelegable duty to furnish proper tools to its employees). Thus, if an employer breached any of these obligations and in turn caused harm to its employee, the employee could seek redress by bringing a complaint against the employer for negligence at common law.
Baumler v. Narragansett Brewing Co., 23 R.I. 430, 50 A. 841 (1901).Laporte v. Cook, 21 R.I. 158, 42 A. 519 (1899). Avenir is a jewelry factory whose plant, at the time in question, was located in the Greenville section of the town of Smithfield.
The defendant relies upon this exception to the general rule in the case at bar. This court has recognized the doctrine just referred to in Laporte v. Cook, 21 R.I. 158 and Laporte v. Cook, 22 R.I. 554. It has been applied frequently in other jurisdictions in cases involving injury to workmen while engaged in the excavation of trenches or while at work in trenches that were being excavated. In the case at bar it must be said that the plaintiff's injuries were not received in either of those circumstances.
fely and easily done by a portable hand-pump, as it had been done in other cases; but it appears that not even such a pump had been furnished. Under these circumstances we are constrained to hold that the owner of the "Mary Lou" and the master as the representative of the owner were grossly negligent in permitting this unseaworthy condition to continue, and in resorting to a dangerous makeshift for the purpose of removing the water due to leakage; and that the captain of the vessel was grossly negligent in ordering the plaintiff, without proper warning or safeguard, into such a position of danger as resulted in his injury, and that in so doing the captain was the representative of the owner, and the owner became liable to answer for the injury. We think the case at bar, both in relation to the question of assumed risk, and also in relation to the question of the owner's liability for the injury sustained, falls within the general doctrine so often followed by this court, set forth in Laporte v. Cook, 21 R.I. 158, where the question determined related to the liability of a municipal corporation for injuries to a laborer in a sewer trench, caused by the caving of the soil, which had not been properly shored up with boards, and wherein the lower court had granted a non-suit; the court says, p. 160-161: "The conduct of the plaintiff, in going into the trench to dig the bell-holes as directed by his boss, was not, as matter of law, in view of the facts aforesaid, a negligent act. Nothing appearing dangerous to him in connection with the trench, he had the right to presume that it was reasonably safe, or, at any rate, that if there were special elements of danger, not obvious to ordinary observation, but known to his boss, he would be notified thereof. In this regard the case is materially different from Larich v. Moies, 18 R.I. 513, which is relied on by defendant's counsel.
Frangiose v. Horton Hemenway, 26 R.I. 291, 293, 294, and cases cited. It can not be said as matter of law that the plaintiff assumed the risks of the employment when he was ignorant of facts on which a proper appreciation of the risks may have depended. Laporte v. Cook, 21 R.I. 158; Pilling v. Machine Co., 19 R.I. 666; see also De Costa v. Hargraves Mills, 170 Mass. 375; Atkins v. Merrick Thread Co., 142 Mass. 431; Coombs v. New Bedford Cordage Co., 102 Mass. 572; O'Connor v. Adams, 120 Mass. 427; Brennan v. Gordon, 118 N.Y. 489; Quinn v. Johnson Forge Co., 9 Houst. (Del.) 338; Whitelaw v. Memphis C.R.R. Co., 16 Lea (Tenn.), 391; Michael v. Roanoke Machine Works, 90 Va. 492. The plaintiff's exception to the decision of the Superior Court sustaining the defendant's demurrer is sustained, and the case is remitted to the Superior Court with direction to overrule said demurrer, and for further proceedings.
And further, where nothing dangerous is apparent to the servant in connection with his employment, he has the right to presume that it is reasonably safe and that he will be notified of special elements of danger not open to ordinary observation, but which are known to his employer. Laporte v. Cook, 21 R.I. 158. In view of the law applicable to the case at bar, as thus briefly stated, we are of the opinion that the question of contributory negligence was clearly one of fact for the jury to determine, and also that their finding in the plaintiff's favor is supported by the evidence.
The question is, did he know, or ought he to have known in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects existed." See also Mayott v. Norcross Bros., 24 R.I. 187, and Laporte v. Cook, 21 R.I. 158. The law relating to assumed risk, as laid down by this court in McGarr v. Worsted Mills, 22 R.I. 352, was as follows: "Knowledge by the servant of the unsafe condition of appliances which carries, or should carry, to the mind of the servant the danger to which he is exposed is the true test."
It will at once be seen, therefore, that the case is not an authority in support of the declaration now before us. Laporte v. Cook, 21 R.I. 158, was also a case where there was evidence that the plaintiff was necessarily absorbed in the doing of his work on the pipes at the bottom of the trench where he was ordered to go, and that while so engaged the bank caved in upon him; and hence that case is of the same general nature as those we have previously considered. The case most similar to the one at bar, which is cited and much relied on by plaintiff's counsel, is Ferren v. Old Colony Ry. Co., 143 Mass. 197. The plaintiff in that case, who was a blacksmith, and whose work was in the shop, was ordered by the foreman to assist in moving a car in the yard outside the shop.
New trial denied. For previous opinions, see 20 R.I. 261, and 21 R.I. 158. William G. Rich and Archambault Gaulin, for plaintiff.