| Wis. | Mar 16, 1897

PinNet, J.

The plaintiff, in entering upon the employment in which he was engaged when injured, assumed all risk or danger of injury ordinarily and fairly incident to ■such service. When the danger is alike open to the observation of all, both the master and servant are upon an equality, and the master is not liable for an injury resulting from the dangers incident to the employment. Naylor v. C. & N. W. R. Co. 53 Wis. 661" court="Wis." date_filed="1881-12-13" href="https://app.midpage.ai/document/naylor-v-chicago--northwestern-railway-co-6603664?utm_source=webapp" opinion_id="6603664">53 Wis. 661; Showalter v. Fairbanks, Morse & Co. 88 Wis. 377; Paule v. Florence Mining Co. 80 Wis. 350" court="Wis." date_filed="1891-10-20" href="https://app.midpage.ai/document/paule-v-florence-mining-co-8183775?utm_source=webapp" opinion_id="8183775">80 Wis. 350. The plaintiff was familiar with the kind of work he was required to perform, and had had considerable experience in working in gravel pits, and had worked on railroads. He knew that blasting was being resorted to to break down the frozen bank, and to get at the sand and gravel where he worked; and five or six blasts for that purpose had been set off on the day in question, and before he was injured. He had witnessed and understood the effect they produced in shattering the bank in front of which he was working, and which was not more than 100 feet in length, rendering it insecure and liable to fall down as excavation proceeded at the bottom. The situation itself suggested to him the dangers incident to the 'service, and the necessity of proper caution for his own protection. He chose, notwithstanding, to continue work under the circumstances, instead of declining the service, and it is entirely well settled that he must be held to have assumed the risk or danger, so far as it was open for his observation. He testified that after the last blast had been set off where he had been set to work, “ I did not see any cracks in the bank; I did not loole to see.” He was bound to take ordinary care to observe whether any, ■and what, dangers were incident to his service. “Where the defect or danger is open or obvious, the -knowledge of It, on his part, will be presumed or imputed to the servant, as a matter of law; and an adult servant is presumed to possess ordinary intelligence, judgment, and discretion to appreciate such danger, so as to regulate his conduct and *539avoid it; and, if be continues in the service and suffers injury from such danger, he has no right of recovery against the master.” Luebke v. Berlin Machine Works, 88 Wis. 448, and cases cited; Haley v. Jump Rimer L. Co. 81 Wis. 412" court="Wis." date_filed="1892-03-22" href="https://app.midpage.ai/document/haley-v-jump-river-lumber-co-8183905?utm_source=webapp" opinion_id="8183905">81 Wis. 412, 421-425. The evidence of the plaintiff’s witness Charles Erickson shows that there had been a serious and dangerous •crack about one inch wide in the bank on top, extending along the bank, and down its face at the place where plaintiff was working, that could be readily observed, even from the train; and the witness felt that the situation was dangerous, and warned the plaintiff of it in a loud voice, -^hen standing within five feet of him; but the evidence tends to show that the plaintiff may not have heard or understood him. Whether he did hear or understand, knowledge of a danger so open and obvious is imputed to him by the law. His own evidence shows that he omitted the'proper caution, and failed, under circumstances so highly suggestive of danger, of looking out for it.

The danger to which he was exposed was the direct result of the operations of the plaintiff and of his fellow workmen in blasting the. 'bank and in excavating at the foot of it. As they were on the ground, and as the danger was open and obvious, and they had ample facilities' to discover and remove it, there would seem to be no ground for holding that the master might not impose such duty on the workmen themselves. Jones v. Florence Mining Co. 66 Wis. 275. The case is distinguishable from that of McMahon v. Ida Mining Co., ante, p. 308, where the danger was concealed, and the plaintiff had no knowledge of its existence, but was justified in the belief that no danger existed. The present ease does not seem to fall within the rule that the master must furnish the servant a reasonably safe place in which to work, inasmuch as the plaintiff and his fellow-servants practically created the place and its attendant perils from hour to hour, in the prosecution of their *540labors; and tbe condition was constantly shifting by reason of tbeir own acts, of wbicb, as well as tbeir probable consequences, they must be beld to have bad notice. Tbe negligence, if any, in this view of tbe case, would be that of the-plaintiff and bis fellow-servants, and tbe risk of it must be regarded as assumed by tbe plaintiff as incident to bis employment; and, in any view that may be taken of tbe case,, it must be regarded as a risk assumed by tbe plaintiff, as incident to bis employment. Petaja v. Aurora Iron Mining Co. (Mich.), 64 N. W. Rep. 335; Peffer v. Cutler, 83 Wis. 281" court="Wis." date_filed="1892-10-25" href="https://app.midpage.ai/document/peffer-v-cutler-8184065?utm_source=webapp" opinion_id="8184065">83 Wis. 281-284. We think, from tbe undisputed evidence, that the-plaintiff must be beld to bave assumed tbe risk of tbe injury of wbicb be complains, and that tbe circuit court erred in refusing tbe motion for a nonsuit, and afterwards in refusing to direct a verdict for tbe defendant.

By the Court.— Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.