160 F. 896 | 8th Cir. | 1908
(after stating the facts as above). The movement of the wheel in connection with which the accident occurred involved ordinary manual labor, the dangers incident to which were open and obvious. With knowledge that three men were assigned to the task the plaintiff, who was an intelligent workman, engaged in it without complaint or objection. That three men could easily roll the wheel across the floor if unobstructed was plain to a man of his experience. It was equally plain that it might escape their control if run against an obstruction, and that, if it escaped their control, it would fall. The surface of the concrete floor over which they rolled the wheel was exposed when they began work, and the partly buried pipe on which the wheel slid was plainly observable until it was covered with the water and grease that came from the machinery they themselves dismantled. This was a condition that should have been provided against by plaintiff and his associates in the exercise of ordinary care, but they seem to have paid no attention to it. The accident was the result of their neglect rather than the lack of men to perform the service. The number of men furnished being reasonably sufficient to do the work in safety if they exercised ordinary care in doing it, defendant was under no obligation to furnish more. Just as employes may rely upon the performance by the employer of his positive duties to them, so may he rely upon their exercise of ordinary care in doing their work and neither is required to anticipate and make provision for the other’s default.
It may be further observed that the premises did not belong to defendant, and the work of taking down and removing machinery was not that usually performed there. The ordinary rule as to the duty of an employer in respect of the safety of the place where his work is being done does not apply. Westinghouse, Church, Kerr & Co. v. Callaghan, 83 C. C. A. 669, 165 Fed. 397; American Bridge Co. v. Seeds, 75 C. C. A. 407, 144 Fed. 605. In view of the conclusion reached, it is immaterial whether the foreman is to be regarded as a fellow servant or as a vice principal; nor is it necessary to consider the complaints as to the admission of evidence and the instructions.
The judgment is reversed, and the cause remanded for a new trial.
