ANNIE CLAVIN and Another v. WILLIAM SEMPLE.1 November 20, 1903. Nos. 13,579 (96). Appeal by defendant from an order of the district court for Beltrami county, McClenahan, J., denying a motion for a new trial. Affirmed. Charles W. Scrutchin, for appellant. Bailey & McDonald, for respondents. PER CURIAM. Action to recover $75 alleged to be due as rent under a certain lease. Plaintiffs had judgment in the court below, and defendant appealed from an order denying a new trial. Though there are no assignments of error in this case, we have examined the evidence for the purpose of determining whether the findings of the trial court are so clearly palpably against the evidence as to warrant a reversal. Our conclusion is that the findings are sustained, and the order appealed from is affirmed. By considering the merits of this case in the absence of assignments of error, we do not wish to be understood as establishing a precedent which will require us to do so at any time in the future. The rule requiring assignments should be observed. Order affirmed. 1 Reported in 97 N. W. 1117. EMMA M. DIXON v. UNION IRONWORKS.1 November 20, 1903. Nos. 13,581-(61). Master and Servant-Apparent Risk. The rule requiring the master to exercise a general supervision over the work of his servants does not require their protection from the negligence and carelessness of fellow servants, nor extend to dangers and risks that are apparent and obvious, or that might be discovered by the exercise of reasonable care and prudence. Fellow Servant. It is held, on the facts stated in the opinion, that the superintendent in charge of defendant's machine shop was not, in respect to the negligence charged in the complaint, a vice principal, but, on the contrary, a fellow servant of plaintiff's intestate; and, further, that plaintiff's intestate assumed the risks and dangers resulting in the injury complained of. Declaration of Decedent. Declarations and statements of a deceased person as to the cause of an injury which resulted in his death, tending to exculpate his employer from the charge of negligence respecting the injury, held competent evidence against his administratrix in an action for damages against the employer under the statute for negligently causing such death. Action in the district court for Hennepin county by plaintiff as administratrix of the estate of Charles E. Dixon, deceased, to recover $5,000 for the death of decedent. The case was tried before Brooks, J., who directed a verdict for defendant upon the close of plaintiff's testimony. From an order denying a motion for a new trial, plaintiff appealed. Affirmed. Benton & Molyneaux, for appellant. Cobb & Wheelwright, for respondent. BROWN, J. Action to recover for injuries alleged to have been caused by the negligence of defendant. A verdict was directed for defendant on the trial in the court below, and plaintiff appealed from an order denying a new trial. 1 Reported in 97 N. W. 375. There is practically no dispute about the facts in this case, which are stated in the memorandum of the trial court substantially as follows: Defendant is a corporation engaged in manufacturing and repairing heavy iron machinery. One Trevillyan was its foreman, and had the general management and control of the shops, and complete charge and direction of all the work and servants employed by defendant. The machine shop where the accident complained of occurred was eighty by forty-five feet in area, and defendant there manufactured and repaired heavy mill machinery. On one side of the shop was an entrance and passageway for wagons, upon which machinery was brought in and taken away. Near the entrance, and within the building, was a crane, used in lifting heavy machinery on and off wagons and from place to place within the shop. The crane was eighteen feet high, and had a boom eighteen feet long; and a considerable portion of the floor was naturally and necessarily covered with machinery and castings of various kinds. Plaintiff's intestate, an employee of defendant as a mechanic, was at the time of the accident engaged a short distance from the crane in setting up an "edger," a heavy piece of mill machinery made up of numerous parts. He had previously set up a large number of such edgers, but had done so at a point some distance from where he was engaged at the time in question, and where he would not be interrupted or interfered with by the operation of the crane. A wagon had been backed into the passageway upon which to load a pulley wheel, consisting of two parts, each weighing about three thousand pounds. One of these parts lay upon the other and upon the side of the passageway nearest where plaintiff's intestate was engaged in setting up the edger, and near, also, a heavy casting called a "flange wheel," which lay loose near another heavy casting. The foreman, Trevillyan, was overseeing the work of loading the pulley wheel onto the wagon, and had full charge of that work. One part of the wheel had been placed upon the wagon, and Trevillyan and other servants were engaged with the crane in lifting the other part, and as they did. so, and as the crane raised the wheel from the ground, it tilted, and in some way swung against the piece of machinery near plaintiff's intestate, causing it to fall upon him, inflicting injuries from which he soon after died. As stated, deceased had set up a large number of edgers, but, according to a uniform custom of the shop, had performed that work at a place near the center thereof, and at a perfectly safe distance from the crane and other machinery. IIe selected the particular place on the day in question of his own motion. He was ordered to do this work by the foreman, but chose to perform it at a point near the crane, and this notwithstanding the fact that a fellow servant admonished him that it would be dangerous to do his work at that place. The complaint alleges, in respect to the negligence relied upon for a recovery, that the casting which fell over upon and injured deceased was negligently placed and allowed by defendant to remain upon the floor of the shop near the iron pulley wheel, or against the same, in such manner that it would be knocked over by said pulley wheel; and that defendant negligently attempted to load the pulley wheel upon the wagon, and negligently handled and lifted the same, because of which the accident occurred. It is not alleged or claimed that deceased was not provided with a safe place in which to work, nor is it alleged that any appliance or instrumentality there used was defective, nor that any of his fellow servants were incompetent or unfit for the service in which they were engaged, nor are there any allegations that defendant failed to promulgate proper rules and regulations for the conduct of its busiThe negligence relied upon for recovery is attempting to load the pulley wheel upon the wagon in such manner as to permit it, when raised by the crane, to fall against the piece of machinery which fell upon deceased and injured him. ness. It is contended by appellant that in supervising the loading of the pulley wheel and in carrying forward that work Trevillyan was a vice principal, and charged with one of the master's absolute duties to the servant, which he failed properly to perform. The work engaged in at this time was the ordinary and usual work of defendant, such as the superintendent and other servants were daily engaged in. Recovery is not sought upon the ground that the superintendent was guilty of any personal negligence, but it is claimed that it was defendant's absolute duty to exercise a proper supervision over the work of loading the pulley wheel, and ordinary care in preventing accidents likely to result from the performance of that work; and that the superintendent, whom defendant had placed in charge thereof, failed to per form it. There was nothing complicated about the work; no hidden risks or dangers surrounding it; and it was not unusual at defendant's shops. It is true that the superintendent had general charge and supervision of defendant's business and this particular work, but from this it does not follow that he was a vice principal. A superintendent or foreman is not necessarily a vice principal simply because he occupies that position. Title or rank has not of itself any special significance in this connection. When engaged with the other servants in the common employment of the master, the superintendent or foreman is a fellow servant, and for his personal negligence the master is not responsible; but when clothed with special authority in respect to the management and conduct of the master's business, a general supervision of it, the control and direction of the other servants under his charge, authority to direct them in the performance of their duties, he is, in respect to those absolute duties the master owes such other servants, a vice principal. He stands in the place of the master in the performance of those duties, whether in reference to the selection of safe instrumentalities, a safe place to work, or in giving proper warning of dangers and risks not known to the servant, or which he could not by the exercise of reasonable prudence discover; and his failure and neglect to perform such absolute duties render the master liable. But the case at bar does not present facts showing that the master owed deceased any absolute duty in respect to the negligence alleged in the complaint, and, even though it be conceded that the superintendent was guilty of negligence in the manner of loading the pulley wheel, defendant is not liable. In respect to that work the superintendent was engaged with other servants in the ordinary work of defendant, loading and unloading heavy machinery, moving it in and out of the factory, and was a fellow servant, and not a vice principal. Corneilson v. Eastern Ry. Co., 50 Minn. 23, 52 N. W. 224; Ling v. St. Paul, M. & M. Ry. Co., 50 Minn. 160, 52 N. W. 378; O'Niel v. Great Northern Ry. Co., 80 Minn. 27, 82 N. W. 1086; McDonald v. Buckley, 109 Fed. 290, 48 C. C. A. 372. And besides the rule requiring the master to exercise a general supervision over the work of his servants does not extend to dangers and risks that are apparent and obvious, or which might be discovered by the servant by the exercise of reasonable |