83 F. 989 | 8th Cir. | 1897
This is a suit for personal injuries, in which John Joyce, the defendant in error, sued the Cross Lake Log
It is further claimed by the defendant company that if Klein was unskilled in the performance of the duties to which he had been assigned, and that fact was known to the plaintiff, then the fact that he continued to work amounted to contributory negligence on his part, because the incompetency of Klein rendered the work to he done so imminently and immediately dangerous that no prudent person would have continued to work at the labor in which the plaintiff was engaged until some other person had been put in Plein’s place. It is doubtless true that when a master promises to remedy a defect in a machine, or to replace an incompetent fellow servant, such promise will not justify the promisee in continuing to work, if, in view of the defect or the mcompeteney of the fellow servant, the work to be done is rendered imminently and immediately dangerous. Haas v. Balch, 12 U. S. App. 534. 540, 6 C. C. A. 201, and 56 Fed. 984; Gowen v. Harley, 12 U. S. App. 574, 586, 6 C. C. A. 190, and 56 Fed. 973; Mining Co. v. Fullerton, 36 U. S. App. 32, 41, 16 C. C. A. 545, and 69 Fed. 928; Hough v. Railway Co., 100 U. S. 213. But it is usually a question for the jury to determine whether the work was rendered imminently dangerous by reason of the defect, and whether the employ'd was guilty of contributory negligence, because he continued to work in reliance on the promise of his master to remedy a given defect or discharge an incompetent fellow servant. It was treated as a question of fact in the present case, and the jury-were instructed in accordance with the law as above stated. The jury found in favor of the plaintiff upon that issue, and we cannot say that the work was so extremely dangerous, in view of Klein’s incompetency, that the trial court ought to have charged, as a matter of law, that he was guilty of culpable negligence in remaining at work, notwithstanding Bolin’s promise to put a competent man in Klein’s place.
It is Anally claimed that the trial court should have instructed the jury that there was no evidence in the case from which they could infer that the plaintiff remained in the defendant’s employ in reliance upon any promise other than a promise made by Bolin that