184 F. 43 | 8th Cir. | 1910
While employed as an engineer’s helper or oiler in the engine house of a mine in Colorado, the plaintiff in error was caught, thrown, and injured by a moving cable ov.er which he was stepping at the time, and he now complains that, upon the trial of an action brought by him against his employer, the defendant in error, to recover damages for the injuries so sustained, the Circuit Court directed a verdict against him. The only evidence relating to the circumstances surrounding the injury was that given by the plaintiff himself, and it conclusively established these facts: In the engine house were an engine and hoist used in raising an'd lowering the cages in a double compartment shaft which extended down into the mine 500 feet. The engine controlled a double drum about which were wound and unwound two cables; one connecting with each cage. The cables were so arranged that one wound and unwound from the top of 'one' section of the drum and the other from the bottom of the other section, and so the drum moved the cables in opposite directions and lowered the cage in one compartment at the same time that it raised the cage in the other. The cables extended directly from the drum to a pair of pulleys above the collar of the shaft and thence vertically downward to the cages. These pulleys
The plaintiff was 22 years old, was of a good degree of intellig-ence, and had been in the defendant’s service four weeks, the first two as a boiler maker’s assistant'and the last two as a helper or oiler in the engine room. When entering upon the latter service, he was informed by the master mechanic and the engineer that the latter would instruct him as to his duties and would look out for him. According to his instructions, it became his duty to oil the axle of the drum by screwing down two oil cups thereon, one near either end of the drum, and to wipe off the engine and clean the floor. He screwed down the oil cups every 5 or 10 minutes, and in each instance had to pass from one end of the drum to the other. There were two ways of making this passage in safety; one by going around behind the engineer, and the other by crossing directly in front of the drum pit when the hoist was at rest. By the first way, which was the longer one, the passage could be made within the time required to raise a cage to the top, and by the other it could be made during any of the customary stops. But a single stop usually was not long enough to enable the oiler to screw down both oil cups and pass from one to the
The negligence charged in the complaint as the proximate cause of the injury was as follows: First, that the defendant was negligent in failing to provide a suitable guard about the drum and lower cable; second, that through the negligence of the defendant the rollers, between which the lower cable ran, had become so worn that the cable was not held steady when running, but jerked and vibrated violently; and, third, that it was the duty of the engineer when about to change the speed of the hoist to give a warning thereof to other employes about the hoist, and that in negligent disregard of this duty, and as the plaintiff was stepping over the cable, the engineer, with knowledge of the plaintiff’s position, and without any warning to him, suddenly increased the speed of the hoist, and this without having received any signal so to do. The answer denied the negligence so charged and set up the defenses of assumption of risk and contributory negligence.
With this statement of the circumstances surrounding the injury and of the issues presented by the pleadings, we come to consider whether in any reasonably admissible view of the evidence a verdict for the plaintiff lawfully could have been sustained. If so, the court erred in directing a verdict for the defendant; otherwise that ruling was right.
As respects the first specification of negligence, it conchtsively appeared that the absence of a guard about the drum and lower cable was so patent as to be readil)' observed; that the enhanced danger arising ^herefrom was so obvious that its appreciation by the plaintiff was unavoidable, in view of his years, intelligence, and experience; and that under those conditions he voluntarily continued to work about the drum and cable. So, even if the absence of a guard! was a negligent omission on the part of the defendant, the court was bound to rule, as matter of law, that the plaintiff assumed the risk incident thereto. Butler v. Frazee, 211 U. S. 459, 29 Sup. Ct. 136, 53 L. Ed. 281; American Linseed Co. v. Heins, 72 C. C. A. 533, 141 Fed. 45; Missouri, Kansas & Texas Ry. Co. v. Wilhoit, 87 C. C. A. 401, 160 Fed. 440; Federal Lead Co. v. Swyers, 88 C. C. A. 547, 161 Fed. 687; United States Smelting Co. v. Parry, 92 C. C. A. 159, 166 Fed. 407; Denver & Rio Grande R. R. Co. v. Gannon, 40 Colo. 195, 200, 90 Pac. 853, 11 L. R. A. (N. S.) 216.
The second specification of negligence was, as we think, without any substantial evidence to sustain it. The plaintiff testified that immediately after his injury the “particular rollers” then in use were “in bad condition” because “they were cut,” and that this permitted the cable to vibrate more than it otherwise would have done; but the extent of the cutting was not more definitely stated, and there was no
The third specification of negligence was to the effect that the engineer suddenly increased the speed of the hoist, including the cable, (a) without any signal so to do, (b) without any warning to other employes about the hoist, although it was his duty to give such a warning, and (c) without any warning to the plaintiff, although, knowing that the latter was then stepping over the cable. Of this it is said in the brief for the plaintiff:
“Perhaps the most direct canse oí the accident was the negligence of the engineer in starting lip the'hoist without proper signals, and starting it up suddenly, when he must have known what the effect of a sudden start would be upon the calilo, and in starting it without warning the plaintiff, who, as the engineer saw, was in a dangerous position.”
When the plaintiff attempted to step over the cable, the hoist was not at rest, but was raising to the top a loaded cage at the end of that cable and lowering a cage at the end of the other cable. Just prior thereto the hoist was moving at full speed, and the plaintiff was standing near the cable “waiting,” as he stated, “for the cable to stop.” Having attended to one oil cup when the hoist was last at rest, he was intending to pass to the- other side and there to attend too the other cup. Presently the engineer applied the brake to the hoist, and it slowed down to such an extent that the plaintiff readily could see the strands of the moving cable. He then concluded! to pass to the other side without further waiting, and as he was stepping over the moving cable the engineer materially increased the speed of the hoist. This produced a jerky or vibrating motion of the cable, and the plaintiff was thereby tripped and thrown upon the cable, and was carried partly around the drum. The evidence did not disclose the position of either cage when the speed of the hoist was slackened or when it was increased, and did not indicate that either of these movements was not in obedience to an appropriate signal. True, the plaintiff stated that he neither heard nor saw any signal to the engineer after the hoist was started; but he also stated that the electric flash device was used by the eager according to an established code in giving signals to the engineer, and that he (the plaintiff) was not at the time in a position to observe, and did not know, whether any such signals
There was also a like failure of proof in respect of the charge that it was the duty of the engineer to give a warning to other employés about the hoist when he was about to change its speed. No evidence was presented which tended to show that any such general duty had been laid upon the engineer, or that he usually, or in any instance, had given such a warning. But it is said that, even although no such general duty rested upon him, he was in duty bound to warn the plaintiff, because when the latter entered the service as an oiler he was told that the engineer would look out for him. The contention is without merit. Doubtless what was said amounted to an assurance that the engineer would take such precautions for the plaintiff’s safety as were reasonabty appropriate in view of his want of familiarity with the service and its surroundings; but it did not mean, and reasonably could not have been regarded as meaning, that the plaintiff was absolved from exercising ordinary care for his own safety, or that the engineer would treat him as a novice, or as likely to assume positions of danger unnecessarily, after he .became familiar with the service and its surroundings. At the time of his injury, he had worked about the hoist for two weeks, had come fully to understand how it was operated and all its surroundings, knew of the two ways of passing in safety from one end of the drum to the other, had made frequent use of both ways, could determine easily whether the cable was moving or was at rest, and knew it was inclined at times to jerk and vibrate very perceptibly. Not only so, but his testimony disclosed that on the occasion in question, after the cage at the end of the lower cable was loaded, the bell rang once as a signal to raise the cage to the top of the shaft, that he heard and understood that" signal, that he knew the hoist was started in response to it, and that while the hoist was still in motion, and therefore before the cage reached the top, he attempted to step over the cable. Thus he had the benefit of that signal and knew its object was not accomplished. As respects his conduct on prior occasions, he testified in the course of his examination in chief:
“Q. And in doing this (attending to the oil cups) did you have to go from one side of the cable or drum to the other?
“A. Yes, sir.
“Q. And when would you do this?
“A. Always when he would unload and load up.
“Q. What is- that for, at the time when the cable was still and the drum still?
“A. Yes, sir.
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“Q. Had yori at other times stepped over the cable when it was slowed down that way?
“A. I had stepped over when' it was stopped.
*49 “Q. Had you at other times stepped over when it was about to stop or slowed down?
“A. No, sir.”
True, later in his examination in chief he testified that on prior occasions he had stepped over the moving cable, and this without attempting any explanation of the conflict, but he in no wise indicated that he had been instructed to pass over the cable while it was in motion or that the engineer had observed him do so. We conclude, therefore, that the claim that a special warning should have been given to him was without any support in the evidence, unless his real situation was known by the engineer.
We come then to the charge that the engineer materially increased the speed of the hoist without any warning to the plaintiff, although knowing that he was then stepping over the cable. Under the evidence, it must be accepted as true that the speed was materially increased, that no warning thereof was given, and that the plaintiff was then in the position described. And it must be conceded that, if the engineer knew the plaintiff was in that position, then ordinary care demanded that a suitable warning be given to him, even although otherwise a warning would not have been necessary; and this because the engineer knew that the change in speed was calculated to produce a jerky and vibrating motion of the cable which would make such a position one of obvious peril. So the crucial question is: Was there any evidence reasonably tending to show that the engineer knew the plaintiff was in that position? Certainly'there was no direct evidence to that effect; but, as that alone is not decisive of the question, we turn to what is claimed to have been indirect proof to that effect. Principal reliance is placed upon testimony given by the plaintiff to the effect that, just before the speed was slackened, the engineer looked in his direction and “appeared to see” him, then looked at one of the indicators (the flash signals when given shone upon one of them), and then applied the brake. But as the plaintiff was then standing near the cable in a place of safety and was “waiting,” as. he stated, “for the cable to stop,” the fact that the engineer appeared to see him then had no tendency to show that later on, when the speed was increased, the engineer knew he was attempting to step over the moving cable. It next is insisted that as the engineer stood with his face in the plaintiff’s direction, and as there was no intervening obstruction to the view, it was a reasonable inference that the engineer observed what the plaintiff was doing. But the facts relied upon do not fully or fairly reflect the engineer’s situation. As before indicated, he was charged with the engrossing task of closely watching the indicators and signal devices and of controlling the hoist with due regard to the position of the cages as shown upon the former and in strict obedience to the signals received through the latter, and the safety of the eager and others about the shaft, as also of the appliances connected therewith, depended upon an attentive performance of that task. In that situation, it well may be that he was so occupied, and properly occupied, with his own immediate task, that he neither did nor could observe what the plaintiff was doing; and so there was no reasonable basis for the inference suggested.
We conclude that a verdict for the plaintiff could hot' have been sustained in any reasonably admissible view of the evidence}' and therefore that no error was committed in directing a verdict for the defendant. ,! : • •
Complaint is made of the exclusion of two hypothetical questions put to the plaintiff; but, as they were not pertinent to the matters here discussed, their exclusion becomes immaterial.
A matter to which much attention was given by counsel is the asserted invalidity, or nonexistence as a law, of the purported statute of Colorado (Sess. Laws 1901, p. 161, c. 67), abrogating the fellow-servant rule of the common law; but that matter need not be considered, because there was no evidence of negligence on the part of the engineer, who was the only fellow servánt whose conduct was in issue.
What has been said requires that the judgment be affirmed, and it is so ordered. ' '