138 F. 13 | 8th Cir. | 1905
after stating the case as above, delivered the opinion of the court.
It is a general rule of law governing the relation of master and servant that it is the duty of the master to use ordinary care to furnish and maintain a reasonably safe place for the servant in which to perform his-work. This rule as to “safe place” only applies to such place as the master constructs, prepares, or selects for such purpose. It has a very limited application to the erection of new buildings or structures, though it may apply to stagings and the like, supplied by the master; and does not render the master responsible for dangers which necessarily inhere in the work and are only to be guarded against by the care the servants themselves shall exercise in its performance. Such risks, including the risk of neg
“I charge you that it became and was the duty of said defendant company and its roadmaster, supervisor, and agent, before ordering and directing said Whipps to work at the aforesaid place, to have examined and inspected, or caused to be examined or inspected, the place wherein said deceased was required to work; and if you find that the said defendant, disregarding its duty toward the said deceased, negligently or carelessly failed to inspect the said premises, or negligently or carelessly failed to sufficiently and safely prop or support the said embankment or wall or cliff of rock, so as to prevent the same from caving or falling, or in any other manner negligently or carelessly failed to provide a safe place for the said Whipps to work, or negligently or carelessly failed to see that the loose rock and earth overhead was secure from falling in and upon the said Whipps at the said point, and that the place where he was ordered and directed to work was an unsafe and dangerous place to work, and that by reason of the defendant’s violation of its duties and its several duties the said deceased lost his life, the case may be for the plaintiff, in connection with the other evidence in the case.”
This charge was duly excepted to, and is assigned as error. The exception must be sustained. The first rock slide occurred late in the afternoon, and wholly obstructed traffic on the railroad, making it the duty of the servants of the railroad near that place, without awaiting orders, to clear the tracks of the fallen rock as rapidly as was possible. There was no time to summon engineers to inspect the face of the cliff. Such slides were not infrequent on this railroad, and there was no evidence that such a precaution as propping or supporting the embankment, wall, or cliff of rock was practicable, or was ever taken or thought of by any one under such circum
It does not appear by direct testimony what information was given to Whipps, as to the exigency requiring this work to be done at night, or as to the character of the disaster, before he arrived at the obstruction and engaged in the work. It does appear that Miles McGrath arrived at Russell, where the bridge gang was, of whom Whipps was one, about 6 o’clock, with his engine and fiat cars; and waited while they got their suppers, after directing that they go with him to this work; and that they got their shovels and went on those cars 10 miles or more to the work. If it is not a certain presumption that all the men were informed of the cause of their being called to distant work at such a time, it is clear that their foreman was so informed, and that on arriving at the obstruction, the situation was obvious, and also the necessity for clearing the track and causing that work, then only begun, to be hurried through, although in the night; and this could leave no other inference than
As before stated, in the case of a sudden disaster like this rock slide, stopping all trains on a railroad, it was the duty of the servants without orders to enter on the work of clearing the tracks, and of the railroad company, without waiting for inspection, to direct its servants to hasten to the place and engage in that work, expecting the servants to use their own senses and judgment in avoiding dangers. The circumstances gave the servants no right to assume that a safe place was prepared and furnished, or any inspection had, other than such examination as had been or might be made by fellow servants in prosecuting the work. It appears that John McGrath had assumed to make such examination as he deemed proper. If he was negligent in this, although he was a foreman, he was engaged in a common employment with the others, and was a fellow servant. Balch v. Haas, 73 Fed. 974, 978, 20 C. C. A. 151. So, also, was Miles McGrath, the roadmaster. He had no entire control of any separate department, but was engaged, like the other servants and the foremen, in the common employment of keeping the road in repair, and was subject to the orders of the superintendent and trainmaster. Northern Pacific Ry. Co. v. Dixon, 194 U. S. 338, 343, 24 Sup. Ct. 683, 684, 48 D. Ed. 1006. In this case the court says :
“We have no hesitation in holding, both on principle and authority, that the employer is not liable for an injury to one employé occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work. It is enough to bring the case within the general rule of exemption if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes; or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end.”
Here all these servants, including the foremen and the roadmaster, were, when the disaster happened, engaged in the common work and enterprise of keeping the railway in proper condition for the. passage of trains. The disaster caused an instant sudden emergency-in the very work in which they were engaged. An emergency admitting of no delay — not even for daylight — certainly not for the summoning of the managing officers of the railway or of its engineers. The work to be done was simply the rough work of clearing the tracks of the fallen rocks, which the servants, under their foremen and roadmaster, were entirely competent to perform. The circumstances and conditions must have made it plain to all that no inspection or precaution respecting the cliff was or could have been had except by such of the servants as were there while it was daylight. Under these circumstances the servants who came later as well as those who were there in daylight assumed the risk of the
It is unnecessary to consider in detail the several assignments of error. The instructions to the jury throughout conformed to the theory presented by the instruction above quoted.
The judgment is reversed, and the cause remanded, with directions to grant a new trial.