133 Tenn. 137 | Tenn. | 1915
delivered the opinion of the Court.
Defendant in error was one of a number of colored men engaged in digging a ditch for sewerage purposes in the city of Chattanooga, under the direction of plaintiff in error’s foreman. The ditch was a long one, extending" the length of a city block. The part of it where defendant in error was at work had been excavated to the depth of ten feet and eight inches. Defendant in error became apprehensive on account of the depth, and called the foreman’s attention to the fact, and expressed some concern for his safety. The foreman assured him that the wall was safe, and commanded him to proceed with the work. Defendant in error continued for a time, and again became apprehensive, having observed the fall of some'pebbles from the top of the wall, and a second time called upon the foreman of the plaintiff in error, and asked that the wall should be braced. The foreman replied that the wall was perfectly safe, and commanded the defendant in error to continue his work. The latter, relying on the superior knowledge of the foreman, did
The defendant in error sued the city, and recoveredi a judgment for $350. The case was appealed to the court of civil appeals, and there the judgment was affirmed. The case was then brought to this court by the writ of certiorari.
The only question we deem necessary to consider in this opinion is whether the trial, judge committed error in refusing to peremptorily instruct the jury to render a verdict in favor of the city. We are of the opinion there was no error in refusing this instruction. Defendant in error, under the facts stated, was justified in relying upon the assurance of safety given to him by the foreman, and in obeying the latter’s orders to continue his work. Under these facts the city drew to itself the risk, it not appearing that the danger was so glaring that a man of ordinary prudence would not have
Tlie exception just noted as to glaring dangers is a sufficient protection to the master. The latter should not be permitted in other cases to say that the servant assumed the risk in the face of an assurance of safety and a command to proceed. The assurance, in such a case, is equivalent to a statement to the servant that the master has a knowledge of the matter superior to that of the servant, and that the latter can rely upon the information given. To permit the master, under such circumstances, to throw the responsibility ón the servant would be equivalent to conferring on him the right to practice a fraud. It would be tantamount to permitting him to say to the servant:
“You should not have trusted me. I invited your confidence, but you should have known it was misplaced. ’ ’
No court should sanction such treachery.
It is insisted, however, that the foreman had' no authority to give the assurance. It was his duty to
We are réferred to the case of Brown v. Electric Co., 101 Tenn., 252, 47 S. W., 415, 70 Am. St. Rep., 666.
That case is not in point. The nature of the earth, as described in the opinion of the court, was such as to furnish a direct warning to the servant of-the imminence of his danger. It was made earth— “principally filled in with cinders, which was loose stuff, and the person who was digging could tell this better than any one else.”
It appears that the servant knew the danger he was incurring, yet made no complaint, nor did he receive any assurance of safety, if indeed such assurance would have amounted to anything under the facts of that case.
Let the judgment of the court of civil appeals be af-. firmed.