126 F. 524 | 8th Cir. | 1903
Lead Opinion
The plaintiff below, Theodore Roy, brought an action against the Glenmont Dumber Company, a corporation, for alleged negligence which he averred caused him to fall upon a log carriage in the defendant’s sawmill, and to lose a part of
The condition of the saw and of the boxing about it, and the absence of any post near the lower end of the bumper, if defects, were open, visible, and obvious ones. The following testimony of one of the plaintiff’s witnesses — the workman who had preceded him in the discharge of the duty of tending the chain — yvas uncontradicted:
“Q. Working on the log deck, you can see your work as plainly as you can see this table? A. Yes, sir. Q. You can see that log deck as plainly as you can see anything? A. Yes, sir. Q. And you could see these timbers that make up the bumper just as plainly as you can see either of these tables in the courtroom? A. Yes, sir. Q. It is all in plain, open sight? A. Yes, sir. Q. You could see it just that way — that one stick of timber was put on top of the other — could you not? A. Yes, sir. Q. But you walked on it, and you walked there freely, whether it was loose or whether it was tight? A. Certainly. Q. You couldn’t walk on there without knowing whether it was loose or whether it was tight, could you? A. No, sir. Q. A man couldn’t walk on there more than once without knowing just what condition it was in, could he? A. No, sir. Q. And you worked there for a long time, you say? A. Yes, sir. * * * Q. There is nothing about a cant hook, so far as the manner in which it is put up and made, but that you can see how it is made, and how it works, by looking at it, taking it up, and handling it? A. No, sir. Q. If a cant hook is loose, you will know it just as soon as you take it up in your hand, will you not? A. Why, yes; certainly. Q. You couldn’t take it up and handle it without knowing it is loose? A. No, sir. Q. So that, if you took up the cant hook that you have testified to was in the mill— the one with the heavy, oak handle — if that was loose, the moment you took it up and undertook to handle it you could see it was loose? A. Yes, sir. Q. You could see that at once? A. Yes, sir. Q. You couldn’t handle it without knowing that it was loose? A. No, sir. Q. You could see that in an instant? A. Yes, sir. Q. State whether or not there was any projection on the iron ring at the end of the cant hook? A. Yes, sir. Q. You couldn’t handle it very well without seeing these projections? A. No, sir. Q. You couldn’t handle it very well without knowing there were no projections on there, could you? A. No, sir. Q. A cant hook is a plain, ordinary tool used in and about the lumber business? A. Yes, sir. Q. Used for the moving of logs? A. Yes, sir.”
The plaintiff testified that he noticed that the timbers constituting the bumper were a little loose and shaky while he was working there; that the first work he ever did lumbering was rolling logs into a lake with a cant hook; that at that time he used such a tool two days; that the first day he worked with a cant hook he knew that if the hook was fast in the log it would not slip, and if it was not it would slip; that, the moment he took up the cant hook which he was using when he was hurt, he saw that it was loose in the socket; that he used it frequently many times an hour each of the five days he was working in the place where he was injured before he was hurt; that he knew
“Q. You don’t know what caused you to fall, do you? A. Yes, sir. Q. What was it? A. Just as I caught hold, the cant hook— If the cant hook had not slipped, I wouldn’t have fell. Q. You say the cant hook. State whether you were positive about that? A. Yes; just as I got hold of the log it slipped, and I went right over with it. Q. The cant hook slipped? A. Yes, sir. Q. Then the slipping of the cant hook caused you to be thrown over there? A. Yes, sir.”
Conceding, without considering or deciding the question, that there is some evidence in this case that the defendant failed to completely discharge its duty to exercise ordinary care to furnish for the plaintiff’s use a reasonably safe place and reasonably safe appliances, this case is ruled by these established principles of law:
The master is not required to supply the best, newest, or safest appliances to secure the safety of his servants; nor is he bound to insure the safety of the place or of the appliances he furnishes. His duty in this respect is discharged when he has exercised ordinary care to furnish a place and appliances reasonably safe and suitable for the use of his employés. Washington, etc., R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235; Patton v. Railway Co., 179 U. S. 658, 661, 21 Sup. Ct. 275, 45 L. Ed. 361.
The factory act of Minnesota (Gen. St. 1894, § 2248), which requires employers to guard or fence dangerous machinery so far as possible, does not abolish the defense of assumption of risk. It does not deprive parties of their right to contract regarding the risks of their avocations.
A servant, by entering or continuing in the employment of a master without complaint, assumes the risks and dangers of the service which he knows and appreciates, and those which an ordinarily prudent person of his capacity and experience would have known and appreciated in his situation. Choctaw, Oklahoma & Gulf Ry. Co. v. McDade, 24 Sup. Ct. 24, 48 L. Ed.-; opinion filed Nov. 2, 1903.
An employé cannot be heard to say that he-did not appreciate or realize the dangers where the defects were obvious, and the dangers would have been known and appreciated by an ordinarily prudent person of his intelligence and experience in his situation. Choctaw, Oklahoma & Gulf Ry. Co. v. McDade, 24 Sup. Ct. 24, 48 L. Ed.-; opinion filed Nov. 2, 1903.
Among the risks and dangers which the servant may thus assume are those which arise from the failure of the master to fully discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work, and reasonably safe appliances to use.
Where the uncontradicted evidence discloses» the fact that the defects in the place or in the tools were obvious, and the dangers from them would have been apparent to an ordinarily prudent person of the intelligence and capacity of the servant, if placed in his situation, and the employé entered upon or continued in the service without complaint, the defense of assumption of risk is conclusively established, and the court should instruct the jury to return a verdict for the defendant.
A more exhaustive discussion of the rules of law on which this decision is based, a citation, review, and analysis of the authorities which sustain them, and which compel the ultimate conclusion in this case, may be found in the opinion of this court, filed herewith, in St. Louis Cordage Co. v. Miller, 126 Fed. 495, a case which was argued at the same term, and which has been considered at the same time with the case in hand.
The judgment below must be reversed, and the case remanded for a new trial, and it is so ordered.
3. Assumption of risk incident to employment, see note to Railroad Co. v. Hennessey, 38 C. C. A. 314.
Dissenting Opinion
(dissenting). I dissent from the opinion of the majority of the court in this case for the following reasons:
The complaint on which the case was tried charged that the employer, the Glenmont Lumber Company, was negligent in three respects: First, in riot providing the plaintiff with a safe place to stand when he was doing his work, as it might easily have done; second, in providing him with a defective cant hook with which to handle logs; and, third, in leaving the saw, in proximity to which he worked, unboxed or uncovered. At the conclusion of the case the defendant company asked the court to direct a verdict in its favor, which request the court overruled, and the defendant excepted. The refusal of this request is the sole error assigned.
It is conceded, apparently, by the majority of the court, or at least they decline to discuss that question, that there is some evidence in the case tending to show that the defendant company failed to discharge its duties in the matter of providing him with a safe place to work, and with reasonably safe tools and appliances wherewith to work. Under the testimony in the case, this concession, I think, is clearly necessary. It was the province of the jury to decide whether the plaintiff’s employer had provided him with a reasonably safe place to stand, or whether it had exercised proper care and foresight in that respect. The evidence shows that the plaintiff was a young man, about twenty years of age; that his customary work was to float logs up to the foot of a slide, and put a chain around them, so that they could be drawn onto the log deck in the mill; that it was the business of another man, by the name of Erickson, who stood on
Judge Shiras, who tried this case below, instructed the jury to the following effect:
“Now, as I said before, the rule of law is that where a master furnishes a place of a certain character, or appliances of a certain nature, for the use of his employs, and that employs enters upon the work, and the employs has a reasonable knowledge, or a fair opportunity to know the character of the place that he is required to work in, or the nature and character of the appliances that are furnished him to work with, so that you can fairly say that he knows, as well as the master, the dangers, risks, and hazards that will be east upon him by working in the place that is furnished him, and by the use of the appliances that are furnished him, then, if he has knowledge of that, and he continues in the employ, and receives pay from the master, making no complaint about it, that would justify you in finding that he was willing to undertake and carry it on in the place and with the appliances that the master furnished him, and he would therefore be held, in law, to have assumed the risks and dangers pertaining to the situation as it then existed. Now, in determining this matter, as I have already stated in the case, you will look at the situation as it actually existed, as to whether the plaintiff assumed the risk of these appliances and the place, and the dangers connected with them. The theory is that an employé has assumed those risks, by*532 reason of the fact that he has knowledge of them — that he has the same knowledge that the master has of these dangers that are created by the place and the appliances that are furnished him — and, knowing them, he has continued in the work. You will look, therefore, at the age of the employé, his knowledge, his experience, and what his powers of observation are at the time he is called upon to enter into the work; what the opportunitie's are or were- for him to know and ascertain and have knowledge of the dangers and risks surrounding him when working in that place with these appliances. But the employé is not to be held to have assumed these risks and dangers if they are due to the negligence or want of reasonable care and caution on the part of the master, unless it clearly appears, and you can fairly find from the evidence, that he knew or had a reasonable opportunity of knowing, as fully as the master did, and as fairly as the master, the character of the dangers, and what risks and hazards he was really assuming when he continued in the work.”
He further instructed the jury that, when he spoke in his charge about the plaintiff’s seeing the danger, he meant “not merely with the eye alone, but with the brain, in the sense of realizing it — having an opportunity to know and have knowledge of the dangers of the surroundings of the situation.”
Now, my associates, taking no note of the fact that the plaintiff below was only 20 years old, and assuming, apparently, that a young man of that age must of necessity possess as much caution and prudence as one having years of experience, and taking no note of the fact that the law cast on the defendant company, rather than the plaintiff, the duty, when it constructed this bumper, of foreseeing the risk to which its employés would be thereby exposed, and taking no note of the fact that the plaintiff had only worked on the log deck a few days before he was hurt, and that thousands of young men of his age, if ordered by their foreman to work in such.a place, would have obeyed the order without complaint, and without a realizing sense of the danger, even if the danger had been greater, confidently find that he did see and appreciate the danger, and did voluntarily consent to assume it and absolve the defendant company from all liability. I am unable to assent to any such doctrine, the result of which, as it seems to me, will be to enable employers to expose their employés to all sorts of risks with the utmost nonchalance; saying to them, when hurt: “You cannot call on us for compensation. You saw the danger to which we negligentlv exposed you, or at least you ought to have seen it and you might have quit our service if you were unwilling to incur it.” I am of opinion, for the reasons stated at length in my dissenting opinion in the case of St. Louis Cordage Co. v. Mary Miller (C. C. A.) 126 Fed. 495, that this ought not to be the law, under any enlightened system of jurisprudence, and that it is not the law. At all events, juries should be permitted to find, in such cases as this, whether the servant, with a full knowledge and appreciation of the risk, agreed with his master to assume it and absolve him from liability. This is an inference of fact, and juries should be left to determine it. It is an invasion of the province of the jury to do otherwise. I think the learned trial judge took the right view of this question, and that the verdict of the jury, which awarded the plaintiff nothing more than reasonable compensation for the injuries which he had sustained, ought to be upheld.