162 P. 369 | Utah | 1916
Lead Opinion
The plaintiff commenced this action against the defendant, a mining corporation, to recover damages for injuries which it is alleged the plaintiff sustained while working in defendant’s mine. The material facts, briefly stated, are as follows:
On the 14th day of May, 19.14, the plaintiff was in the employ of the defendant as timberman in its mine. It is conceded that the plaintiff at the time was a competent and experienced timberman, machineman and miner. Indeed, the
“Eli (plaintiff) came to me and said: ‘Hello, John, how is your place 9 ’ I say, ‘ It is all right. ’ ‘ Have you everything down 9 ’ I say: ‘ Sure, it is all right now; it is a good place to work. ’ ’ ’
All this time the drilling machines were being operated by two machinemen to each machine, and were kept at work in the face of the stope some distance from where plaintiff and Snarich worked. The machines were being operated by compressed air, and their operation, both plaintiff and Snarich testified, caused the earth surrounding the machines for a considerable distance to vibrate or “shake,” as they called it. Soon after the plaintiff had commenced to work with Snarich Mr. Kelly, the shift boss, also came into the stope. The plaintiff testified that he requested Kelly to stop the machines
“I said to him (Kelly), 'It will be a good thing to stop this machine for a while so we can throw this timber in and put it in shape as quick as we can and that helps a good deal.’ * * * He said: 'We can’t stop the machine. Men have to .go on the same time that you are working, and they cannot do that that way. The machinemen can’t make no time at all. It will be to the quitting time, and the machines has got to keep going to make muck for the night shift. ’ He then say: ‘This is pretty good. John (Snarich) has been working all morning and picking it down, and it is in good shape now, and don’t be afraid.’ ”
The plaintiff also says that he relied on what Mr. Kelly said about the place being ''all right.” Snarich, in referring to what was said by Mr. Kelly to the plaintiff, testified:
"Mr. Kelly go to.that place. Eli (plaintiff) was there, too, and me, and Eli says to Frank (Kelly): ‘Frank, will it be all right to stop that machine whole we are working in the open place?’ And Frank says: ‘She'is all right. John (Snarich) was here all morning, and everything was picked down. Don’t be scared. You keep going. ’ ”
Plaintiff and Snarich then kept at work as before stated. The plaintiff, when asked what was usually done if a timber-man asked that the machines be stopped, said :
"If a man is scared, he asks them to shut (stop) the machine. If he isn’t seared, he don’t ask them.”
He, in speaking of himself, testified:
"I was seared something from above would fall.”
That is, he feared that, if the machines were kept going, the vibration incident to their operation might cause material to fall from the roof of the stope. He, however, kept at work after what was said by Snarich and Kelly, and at no time made any examination of the roof of .the stope, and paid no attention to it, except to look at it from time to time, when he says it "looked all right to me.” Plaintiff, while testifying as an expert miner and machineman, also said that the vibration of the drilling machines caused the material to fall upon him and injure him. Mr. Snarich and two other wit
Upon substanitally the foregoing evidence respecting the manner and cause of the accident the defendant moved for a nonsuit upon the grounds: (1) That plaintiff had failed to prove any negligence on the part of the defendant; (2) that the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law; and (3) that the plaintiff had assumed the risk. The court sustained the motion and dismissed the complaint. Plaintiff appeals.
Both parties have devoted most of their arguments and citation of authorities to the latter proposition. The defendant, however, also contends that no actionable negligence on its part was pi’oved. Assuming without deciding that there was sufficient evidence to go to the jury upon the question of defendant’s negligence, yet the serious question that must be answered is whether or not, under the facts and circumstances disclosed by the evidence, plaintiff did or did not assume the risk of injury as matter of law. Plaintiff’s counsel contend that plaintiff did not, while defendant’s counsel vigorously insist that he did. His counsel insists that .plaintiff did not assume the risk, for .the reason that Mr. Kelly, who represented the defendant, gave assurances of safety upon which, under all the circumstances disclosed by the evidence, the plaintiff had a right to rely, and thus continue the work of putting in the timbers. Counsel have cited and relied upon the following eases in support of their contention: Nugent v. Cudahy Pkg. Co., 126 Iowa 517, 102 N. W. 442; Chicago, etc., Co. v. Sobkowiak, 148 Ill. 573, 36 N. E. 572; Schmit v. Gillen, 41 App. Div. 302, 58 N. Y. Supp. 458; Haas v. Balch, 56 Fed. 984, 6 C. C. A. 201; Harder, etc., Co. v. Schmidt, 104 Fed. 282, 43 C. C. A. 532; Consolidated, etc., Co. v. Shepherd, 220 Ill. 123, 77 N. E. 133; McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542; Beseloff v. Strandberg, 62 Wash. 36, 113 Pac. 250; Faulkner v. Mammoth M. Co., 23 Utah 437, 66 Pac. 799; Frank v. Bullion Beck, etc., Co., 19 Utah 35, 56 Pac. 419; Toone v. O’Neill Const. Co., 40 Utah 265, 121 Pac. 10.
In support of defendant’s contention counsel have cited and rely upon tbe following cases: Showalter v. Fairbanks, Morse & Co., 88 Wis. 376, 60 N. W. 257; Breckenridge, etc., Co. v. Murphy, (Ky.) 38 S. W. 700; Scott v. Delaware, L. & W. R. Co., 136 App. Div. 347, 120 N. Y. Supp. 895; Knorpp v. Wagner, 195 Mo. 637, 93 S. W. 961; Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171; Metallic G. M. Co. v. Watson, 51 Colo. 278, 117 Pac. 609, Ann. Cas. 1913A, 1276; Thurman v. Pittsburgh, etc., Co., 41 Mont. 141, 108 Pac. 588; Rohrabacher v. Woodward, 124 Mich. 797, 82 N. W. 797; Anderson v. H. C. Akeley L. Co., 47 Minn. 128, 49 N. W. 664.
Tbe foregoing cases are all directly in point upon tbe question raised by counsel. In addition to the foregoing cases, we also refer to tbe following authorities wherein the question of assumption of risk by a servant having equal knowledge of the conditions and danger with the master is discussed: 3 Labatt’s M. & S. (2d Ed.), Section 879, also Sections 1179, 1182, 1184, 1186a, 1187, 1190, 1191 and 1219 to 1224; 26 Cye., pp. 1202, 1203.
It should be noted, however, that the question that the servant had equal knowledge with the master, standing alone, is not necessarily and under all circumstances the controll-
In discussing the assumption of risk under circumstances very much like those in the case at bar in the case of Scott v. Delaware, L. & W. R. Co., supra, the court in the opinion said:
“The plaintiff’s theory, aside from the contention that he was not furnished a reasonably safe place in which to perform his labor, is that in acting under the orders of Connelly, the foreman, the plaintiff was justified in accepting the supposed superior knowledge of the boss, and that it was negligent for the foreman to tell him to go ahead. But clearly the foreman was not giving him any positive orders. He' merely expressed an opinion that the stone would remain in place, and there is not a single fact or circumstance which would justify the jury in believing that the foreman had any greater knowledge, or any greater experience than the plaintiff, or that the latter had any reason to expect that he would be discharged if he disregarded the so-called order to go ahead, or that he had any assurance of safety, other than the mere opinion of the foreman that the rock would not fall.”
In the course of the opinion in Hencke v. Ellis, supra, Mr. Justice Marshall said:
“It is elementary that, where the dangers of a servant's working place are as open to his observation and knowledge as to his employer’s — having regard for the duty of each to exercise ordinary care, and the quantum of care that may be reasonably expected of each, considering the kind of work to be performed — the servant assumes the risk thereof. The work respondent was employed to do was that of a specialist, the kind he was trained to do. He was not obliged to assume the risk of doing it in the way indicated, or excused for proceeding in that way, so as to hold appellants responsible for the safety of the casing, merely because they directed him to so proceed or assurfed him that it was safe to do so if he exercised ordinary care. An assurance of safety in such a case is not material, except where the person giving the assurance must be presumed to have better judgment or information than' the assured, so that the latter may reasonably rely thereon instead of on his own judgment.”
In Rohrabacher v. Woodward, supra, the doctrine is stated in the headnote thus:
*239 “An experienced servant of mature years cannot continue to operate a machine which he knows is dangerous without assuming the risk, simply because the employer has assured him that it is safe, when the servant has just as much knowledge of the danger arising from its operation as the employer.”
In 26 Cyc. 1202, 1203, the rule is stated in the following language:
“The general rule is well settled that, where the master and servant are possessed of equal knowledge, or means of knowledge, of defects and dangers, or where they are equally ignorant thereof, the servant assumes the risk; and the same is true a fortiori where the servant has better means of knowledge than the master. But if the master knows, or is under an obligation to know, of dangers of which the servant is ignorant, and of which he is not under an equal obligation to know, there is no assumption of risk.”
In 3 Labatt’s M. & S. (2d Ed.), Section 897, the author says:
“The doctrine applied in the older English cases and in all the American cases up to the present time, ,with a few possible unimportant exceptions, is that, in the case of all adult servants except seamen, the action must be declared not to be maintainable, as a matter of law, if the evidence leaves no reasonable doubt that the servant comprehended the abnormal risk which caused his injury.”
The same author further says (Section 1184):
“The servant is frequently said to be incapable of maintaining the action where his knowledge of the risk which caused his injury was, as compared with the master’s knowledge, either equal or superior. But this form of expression is obviously of no special significance in a logical point of view. If the servant knew of and appreciated the risk in such a sense and to such an extent that he must be deemed to have accepted it as one of those incident to the employment, his inability to maintain the action is a necessary inference, irrespective of whether his master possessed the same or a less amount of information in regard to the subject-matter. As it is the knowledge of the servant which withholds from him a right of action, it is immaterial that the master also knows of the conditions which produced the injury.”
It is not necessary to quote further from the authorities.
It seems very clear to us that there is no room for any difference of opinion in this case regarding plaintiff’s assumption of the risk incident to putting up the timbers in
In view of the conceded facts, therefore, we are of the opinion that the ruling of the district court in sustaining the motion for a nonsuit was clearly right, and hence the judgment should be, and it accordingly is, affirmed at plaintiff’s costs.
Concurrence Opinion
I concur. But I think the case ought to be ruled on the theory that the plaintiff, while hardly an expert, yet an experienced timberman and miner, was engaged at work making a place safe, and was employed for that purpose, timbering a stope to prevent rock and other material from falling. While doing that work he of necessity .was exposed to dangers of rock and earth which might become loose and fall. But that was incident to work in hand, and as to him was but an ordinary risk, not only as to rock which might be loose when he entered the stope, but also which might become loose in the ordinary and usual prosecution of the work, or from natural causes. In other words, this servant was employed to do and was engaged at master’s duty making a place safe and guarding and protecting the stope against material likely to fall or cave. That the danger to which he was exposed was not, as is argued, from loose, overhanging rock when he entered the stope, but from rock and earth that might be loosened from vibrations of the ground caused by operations of drilling machines, is not, as it seems to me, of controlling importance. True, such dangers might have been avoided by the suspension