106 F. 645 | 8th Cir. | 1901
This was an action by an employé against his employer for a failure to discharge its duty to use reasonable diligence to furnish its servant with a reasonably safe place in which to perform his work, and the answer was that the risk and danger from which the servant suffered was one of the ordinary and patent risks of the employment which he had assumed. At the close of the trial the defendant below requested the court to instruct the jury to return a verdict in its favor, and the refusal to grant this re
A servant assumes the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of liis age, experience, and capacity by the use of ordinary care and prudence. A minor assumes-1he ordinary dangers and risks of Ms employment that he actually knows and appreciates, and those which are so apparent and open > hat one of his age, experience, and capacity would, in the exercise of ordinary care and prudence, know and appreciate them to the same extent as an adult. By entering upon and continuing in the employment lie assumes these risks and dangers, and no negligence can be charged to (he master, and no liability can be fastened upon him, because he fails to give notices or warning's of or to remove these common risks of tiie employment. Manufacturing Co. v. Erickson, 55 Fed. 943, 946, 5 C. C. A. 341, 344, 12 U. S. App. 260, 265; Pressed Brick Co. v. Reinnciger (Ill. Sup.) 29 N. E. 1196, 1107; Dowling v. Allen, 74 Mo. 13, 16; Railway Co. v. Valirius, 56 Ind. 511, 518; Buckley v. Manufacturing Co. (N. Y. App.) 21 N. E. 717; Railway Co. v. Frawlev (Ind. Sup.) 9 N. E. 595, 598; Engine Works v. Randall, 100 Ind. 293, 298, 300; Berger v. Railway Co., 39 Minn. 78, 38 N. W. 814; Sullivan v. Manufacturing Co., 113 Mass. 396; Fones v. Phillips, 39 Ark. 17, 38. Under this well-settled rule and the testimony of the1 defendant in error, it is impossible to sustain his recovery in this case. Re testified that his accident was caused by the slipping of the block which lie himself placed before the hasher on the wet and greasy floor. He knew that the floor was wet, greasy, and slippery. lie had walked and worked upon the floor, placed and replaced the block upon it, for four weeks. If it was wet, greasy, and slippery, he knew the fact; knew his liability to slip and fall as he walked across it; knew (he danger that the block itself might slip.' If, as he walked along (hi1 floor, he had slipped and fallen, could he have recovered of the plaintiff in error? The question ⅛, susceptible of but one true answer. But he was as familiar with the danger that the block would slip as he was with the risk of the slipping of his feet. He, and he alone, had handled, placed, and replaced the block during the four weeks that he had occupied it as Ms standing ground. He knew that:, if Ms fingers fell into the hasher, they would be injured, perhaps destroyed. All these risks and dangers were so simple, open, obvious, that the con-
There was therefore no substantial evidence in this case upon which the jury could properly render a verdict in favor of the defendant in error, and it was the duty of the court below to direct them to return a verdict against him. Railway Co. v. Price, 97 Fed. 423, 427, 38 C. C. A. 239, 243; Commissioners v. Clark, 94 U. S. 278, 284, 24 L. Ed. 59; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 733, 8 Sup. Ct. 266, 31 L. Ed. 287; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Laclede FireBrick Mfg. Co. v. Hartford Steam-Boiler Inspection & Ins. Co., 60 Fed. 351, 354, 9 C. C. A. 1, 4, 19 U. S. App. 510, 515; Gowen v. Harley, 56 Fed. 973, 6 C. C. A. 190, 12 U. S. App. 574; Motey v. Granite Co., 74 Fed. 155, 157, 20 C. C. A. 366, 368, 36 U. S. App. 682, 686; Railway Co. v. Belliwith, 83 Fed. 437, 441, 28 C. C. A. 358, 362, 55 U. S. App. 113, 121.
There are other specifications of error in this case, but it is unnecessary to consider them. The judgment is reversed, and the case is remanded to the court below, with instructions to grant a new trial.