18 Colo. App. 431 | Colo. Ct. App. | 1903
The plaintiff in error was plaintiff, and the defendant in error defendant, below. A demurrer to-the complaint for-want of facts was sustained. The-
The complaint alleged that the defendant employed the plaintiff as a stoker in its gas works; that prior to his employment the defendant became involved in trouble with the men then working for it, the result of which was a strike by those men, all of them quitting work; that the strikers were very aggressive and threatened violence to any person or persons taking their positions; that the defendant, when it employed the plaintiff, was acquainted with the offensive attitude of the strikers and knew of their threats, but failed to disclose to the plaintiff the fact of the strike or give him any information concerning the disposition of the strikers or the threats they had made; that the plaintiff had not, at the time of his employment or at any time before he received the injuries complained of, any knowledge of the existence of the strike or of the angry temper of the defendant’s old employees; that he commenced work for the defendant on the 21st day of June, 1899, and that on the 9th day of July following, while he was engaged in his work and unapprehensive of danger some of the strikers fired upon him, two of the shots taking effect, disabling him and causing him severe and painful injury.
The plaintiff, when he contracted to work for the defendant, took upon himself the usual and necessary risks of the employment; but concerning extrinsic or extraordinary dangers of which he had no knowledge he was entitled to information from the defendant before entering the service, if such information was in the defendant’s possession. In Perry v. Marsh, 25 Ala. 659, it is said that if one employs a workman in a service which is apparently safe but which becomes hazardous from causes disconnected with the service which are not discoverable
In McGowan v. Mining and Smelting Co. it was decided that the master was hable for' injuries to his servant caused by an explosion resulting from the overturning by the servant of a quantity of hot slag into water, even although the accident might have been attributable to the servant’s own want of care, because the master had not advised bim of the danger incident to the contact of the slag with the water. The court held that for a burn caused by the spilling of the slag on himself the servant could not have recovered because it would be assumed that he knew what the effect would be of a contact of. hot slag with his person; but that a violent explosion would occur when the slag met the water he was not presumed to know, and this was a peril against which
“The general principle which forbids the employer to expose the employee to unusual risks in the course of his employment and to conceal from him the fact of such danger is not affected by the fact that the danger known to the employer arose from' the tortious or felonious purposes or designs of third-
A difference is suggested between the latter case and the one before us in that the employer was there invading the premises of another and was therefore a trespasser, and the attack occurred immediately upon the attempted interference with the fence; whereas, here the defendant was conducting its business upon its own premises and there was no assault for eighteen days. We do not conceive this difference to be important. It strikes us that the degree of danger to be apprehended from exasperated men is not safely measurable by the cause of the exasperation. The destructiveness of firearms in the hands of persons determined to use them is the. same, whatever the grievance or fancied grievance may be by which the murderous disposition is excited. The controlling feature of both cases is that the employer knowingly exposed the employee to personal danger, 'and concealed the danger from him. Neither are the
It is intimated that during the intervening time the plaintiff ought to have discovered that a strike was in existence, and that the defendant’s old employees were in no tranquil frame of mind. How he might have made the discovery unless he had seen or heard something to suggest inquiry, we are not told. But it is the complaint and not the case which is on trial. It is alleged in that pleading that the plaintiff did not know that there was a strike, or that he was in any danger, until he was attacked. This explicit-statement of fact is not to be met by mere argument. The facts necessary to charge the defendant with liability for the injury, namely, the existence of -reasons to apprehend danger, the defendant’s knowledge and the plaintiff’s want of knowledge of their existence, and the defendant’s failure to communicate to the plaintiff the knowledge in it possession, are all sufficiently averred. It was error to sustain the demurrer, and the judgment will be reversed.
Reversed.
Maxwell, J.., not sitting.