94 P. 1051 | Cal. | 1908
This is an action for damages. After trial and verdict for plaintiff the court granted defendants' motion for a new trial and plaintiff appeals.
The court ordered a new trial "on the ground that the motion for nonsuit should have been granted, and order denied on all other grounds." It is contended by appellant that this limits the consideration of this court to the one proposition. The question is not of consequence in this case for, upon the ground indicated, the court was correct in its ruling. However, the position of appellant in this matter is contrary to the well-settled rule. (Kauffman v. Maier,
The action was for personal injuries alleged to have been occasioned to plaintiff, an employee of defendant, through the negligence of the latter. The negligence charged consisted in maintaining, in an unguarded condition, upon the second floor of its tannery building, a hole in the floor through which passed a leather belt. The accident to plaintiff occurred by his stepping with his right leg into the unguarded hole, whereby his leg was mangled by the moving belt. The undisputed facts disclosed by the evidence at the time when plaintiff rested his case and a motion for a nonsuit was interposed are the following: Plaintiff was an adult laborer in the employ of the defendant. For seven weeks prior to the accident he was engaged in hauling sides of sole leather upon a truck from the rolling room to the drying room. The truck was loaded upon one floor, wheeled into the elevator, thus carried to the second floor — the drying room — where the truck was *271 wheeled out of the elevator to some convenient place in the room for the purpose of drying the hides. About nine inches to the right of the entrance to the elevator and slightly in front of that entrance was the hole, 26 by 14 inches, through which the belt from the ceiling of the second floor ran to the first floor. This belt operated the elevator. Plaintiff was perfectly familiar with the condition, knew of the existence of the hole, which was unguarded, and at the time of the accident the room was so light that every object therein could be distinguished clearly and without difficulty. Plaintiff could have seen the hole had he looked for it. On the afternoon of the accident plaintiff with an assistant, Price, was pushing a truck loaded with leather off the elevator at the second floor. Plaintiff was guiding the truck and accidentally twisted the tongue, as he says, by reason of the fact that Price leaned against it. Because of this the direction of the truck was swerved and its rear wheels struck an elevation or "rise" in the floor. To guide the truck along its proper course it became necessary to back it off this elevation, and in doing so plaintiff stepped into the open hole. Plaintiff was perfectly familiar with the conditions at the time of the accident and they had not been changed. He had passed the spot of the accident at least four or five times a day for seven weeks. He knew of the hole and that it was unguarded and had made no complaint of its condition. The truck which he was handling at the time of the accident was a light one, was easily turned, and there was a light load upon it. The hole did not interfere with his route of travel to and from the elevator but was to one side of it. He backed into it. In pulling the truck off from the "rise" he stepped back three or four steps before putting his leg into the hole. He could have stepped back into the elevator, but did not want to do so lest somebody should lower it while he was there.
To summarize, an adult employee, perfectly familiar with his work and with the conditions and environment in which he is performing it, through the act of a fellow employee, pushes the light truck which they are wheeling against an obstruction so that it is necessary to back it off. In doing this the employee takes three or four steps backward, and *272 without looking for or thinking of a hole, with the existence, place, and purpose of which he is perfectly familiar, steps into it and is injured.
The law, in justly requiring that an employer shall furnish reasonably safe appliances and a reasonably safe place for the performance of his work, does not make him an insurer of his employees against all accidents. It does not require the employer to provide safeguards against every possible chance of accident. Nor, having furnished a reasonably safe place, does it hold him responsible if an accident has happened which could have been avoided had the employer used extraordinary precautions to prevent it. The requirement that the place of employment shall be reasonably safe is itself always to be considered in connection with the rule of law as to the assumption by the employee of known and understood risks. But, aside from the consideration as to whether under these circumstances negligence in failing to provide a safe place for work may be imputed to the employer in this case, it is indisputable that the accident was occasioned through the negligent failure of the plaintiff himself to use ordinary prudence for his own protection. Plaintiff, perfectly familiar with the condition of the premises, inadvertently walking backward, steps into a hole which he knew was there, and which, had he looked, he could readily have seen. This inadvertence and forgetfulness is sought to be excused by appellant upon the proposition that plaintiff was so engrossed in the performance of his duties at the time of the accident that his forgetfulness was not negligence, or at least that it was for the jury to say whether it was or not. It is recognized that there are cases where preoccupation or forgetfulness on the part of the employee does not bar a recovery. These cases, from the nature of things, are exceptional. They have to do with abnormal risks and with the performance of duties under the high tension of emergency, and where in the doing of one necessary thing under the stress of immediate action an employee shall not be held guilty of contributory negligence because he has omitted or forgotten another. Thus it is said in Labat on Master and Servant: "This doctrine may be referred to the general principle that the failure of an employee to perform a duty will not constitute *273
contributory negligence where such failure results from the necessary observance of a duty of equal importance and equally binding upon him, the neglected duty in this instance being that of keeping a vigilant lookout." But these exceptional cases are in no way subversive of the long-established rule that "the law demands that one who is working in a place where he is exposed to danger shall himself exercise his faculties for his own protection, and does not permit a recovery for damages resulting from a neglect of this rule." (Kenna v. Central Pacific R.R.,
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied. *275