No. 43 | 2d Cir. | Nov 13, 1917
Lead Opinion
(after stating the facts as above).
The complaint herein was supplemented by a bill of particulars, and on turning to that document, to ascertain the sort or kind of negligence of which defendant complains, we find but one allegation which, in the fight of Sawickas’ own story, needs consideration. The bill asserts in a variety of ways that it was negligent to permit, and not to prevent, plaintiff below from using an iron or steel tamping bar without a copper or other soft metal head.
Assuming for argument’s sake that any such duty lay upon the defendant below, it is still necessary to find some causal connection between the use of an uncapped tamper and the explosion producing injury. The plaintiff’s theory (and the word is used advisedly) is that the steel tamper must have struck “sulphur,” thereby produced a spark, which spark ignited the cartridge and caused the explosion, and that this train of circumstances happened in a damp hole, and had never anywhere happened before to the knowledge of plaintiff, or (it may be added) of any one else who testified herein.
But let it be assumed that the plaintiff below was injured because he was putting in a blast in an improper manner, and especially with an improper tool, that in so doing he did strike a spark, and as a consequence thereof received the injury comjffained of. He was a certified miner, not only a proper person, but the only kind of person lawfully authorized to do the work he was doing. He had been used to this labor for years, and if it be true that sparks may be produced from damp rock by blows from a steel tamper, he for years had had opportunity of learning the truth about the matter, larger than that of all except other miners. Knowledge of such dangers was part of a miner’s equipment for his- work, and to ascertain and remember the fact required nothing but ordinary judgment and common observation.
A master is .not bound to warn a servant of dangers so patent as to be readily observed by the reasonable use of the senses, considering the age, intelligence, and experience of the observer. Chicago, etc., Co. v. Shalstrom, 195 F. 725" court="8th Cir." date_filed="1912-03-22" href="https://app.midpage.ai/document/chicago-b--q-r-v-shalstrom-8782889?utm_source=webapp" opinion_id="8782889">195 Fed. 725, 115 C. C. A. 515, 45 L. R. A. (N. S.) 387; King v. Morgan, 109 F. 446" court="8th Cir." date_filed="1901-05-03" href="https://app.midpage.ai/document/king-v-morgan-8744643?utm_source=webapp" opinion_id="8744643">109 Fed. 446, 48 C. C. A. 507; Lindsay v. New York, etc., Co., 112 F. 384" court="2d Cir." date_filed="1901-12-06" href="https://app.midpage.ai/document/lindsay-v-new-york-n-h--h-r-8745931?utm_source=webapp" opinion_id="8745931">112 Fed. 384, 50 C. C. A. 298; Crawford v. American, etc., Co., 123 F. 275" court="2d Cir." date_filed="1903-04-06" href="https://app.midpage.ai/document/crawford-v-american-steel--wire-co-8751205?utm_source=webapp" opinion_id="8751205">123 Fed. 275, 59 C. C. A. 293. A knowledge of danger may be presumed from the servant’s “abundant opportunities of observation” (Fletcher v. Traction Co., 190 Pa. 117" court="Pa." date_filed="1899-02-27" href="https://app.midpage.ai/document/fletcher-v-philadelphia-traction-co-6245193?utm_source=webapp" opinion_id="6245193">190 Pa. 117, 42 Atl. 527), and the court may draw such inference (Borck v. Michigan, etc., Works, 111 Mich. 129" court="Mich." date_filed="1896-12-09" href="https://app.midpage.ai/document/borck-v-michigan-bolt--nut-works-7938598?utm_source=webapp" opinion_id="7938598">111 Mich. 129,
. 12, 3] The rule charging a master, under many circumstances, with the consequences of his servant’s using an unsafe contrivance, does not apply when the cause of hurt is not furnished by the master, who is not charged with the duty of providing the same. McKean v. Colorado, etc., Co., 18 Colo. i4pp. 292, 71 Pac. 425, and cases cited. One who holds himself out as skilled in a trade, and thereby procures employment, cannot hold his employer liable for failure to instruct him in a matter he must be assumed to know, in order successfully to pursue that trade. Hammond v. Union, etc., Co., 136 App. Div. 102, 120 N.Y.S. 652" court="N.Y. App. Div." date_filed="1909-12-30" href="https://app.midpage.ai/document/hammond-v-union-bag--paper-co-5214038?utm_source=webapp" opinion_id="5214038">120 N. Y. Supp. 652. Since there is no proof that the master knew of the alleged danger in Sawickas’ tools or methods, or that such danger was so notorious that knowledge thereof must be imputed, such decisions as Griffiths v. London, etc., Co., L. R. 12 Q. B. Div. 495, McGowan v. La Plata, etc., Co. (C. C.) 9 Ped. 861, and Mather v. Rillston, 156 U.S. 391" court="SCOTUS" date_filed="1895-03-04" href="https://app.midpage.ai/document/mather-v-rillston-94107?utm_source=webapp" opinion_id="94107">156 U. S. 391, 15 Sup. Ct. 464, 39 L. Ed. 464" court="SCOTUS" date_filed="1895-03-04" href="https://app.midpage.ai/document/mather-v-rillston-94107?utm_source=webapp" opinion_id="94107">39 L. Ed. 464, do not apply.
While holding, as above indicated, that defendant below had a right to rely upon this certified miner’s knowledge of the matter suggested as the cause of injury, it is also true that, if the accident happened in the way and for the cause necessarily found by the jury, such cause of injury was an unusual and therefore unheard of incident; anil the proofs, so far from, showing that spark danger with a loose cartridge and a damp hole was usual, make it plain that it could not have been warned against because no one had ever heard of such a thing happening. To predicate negligence on lack of a warning not based on either experience or observation is, we think, unheard of.
It is urged that rule 30, supra, was violated by the use of the tamping bar without a soft metal head. But this rule applies only to instances where a “tight cartridge” is being rammed into a hole. The cartridge in this instance was not tight, and the rule inapplicable.
Finally, it is suggested that defendant is liable because it did not have the statute and rules posted in compliance with the rule, supra. Of this contention it may be observed (1) that in response to appropriate interrogatories no such charge of negligence is contained in the bill of particulars; (2) since the cartridge was not tight, there was no violation of the rule, and the injury could not have flowed from a failure to post rules which were not violated; (3) plaintiff does not testify that the rules were not posted, but: only that he had not seen them. This is unavailing against uncontradicted evidence that they were posted in several places in compliance with the statute.
A verdict should have been directed for defendant below. Judgment reversed, with costs.
Dissenting Opinion
(dissenting).. There was some evidence that a spark from the bar fired the charge. Suppose the bar had ruptured the cartridge and exposed the powder. One witness,
Nor can I see, especially if the plaintiff’s explanation of the explosion is thrown out as beyond any legitimate inferences' from the evidence, how it can be supposed that ordinary judgment and common observation would have disclosed the danger. I agree that experience showed it was a very remote danger; apparently this was the first instance of it. How far it should have been anticipated was another matter. If the miner were on an equal footing of experience with the owner, there would be, of course, no reason to require the owner to instruct him. Surely he is not. Seeing the work going on about him in the way which eventually undid him, and having no instruction against it, the jury might have concluded that a prudent man would think it safe.
Yet I think that there was room to say that the danger was enough within customary foresight to charge an owner with some precautions. Rule 30 does not, of course, cover this case, but it shows that, when a steel bar ruptures a tight cartridge, its sparks may fire the powder. The question is whether, if a steel bar is used to tamp a free cartridge, it may not rupture it, and then fire it in the same way. It is true that this contingency was apparently too remote to justify a rule against it, but not conclusive. Some of the witnesses said that they put a dirt wad between the bar and the cartridge when driving it in, and Rowan, a supposed expert, said that to drive it in with a steel bar was dangerous. One of the defendant’s own witnesses, Kelly, said that there was a tradition 'among miners against it, though he himself thought it safe. The fact that no instance of explosion from the method was recorded does not, however, necessarily absolve the master from precautions. I cannot see how we may take from the jury the question whether the traditional fear among miners was wholly unfounded.
Finally, the plaintiff’s certification as a miner under the law seems to me irrelevant. It had no effect upon the mutual duties of the parties; the law was only a police regulation of Pennsylvania. I agree that, if a stranger presented such a certificate, the master might assume that he already possessed tire rudiments of his calling. The critical question, however, is always this: How far would a prudent master suppose the servant qualified ? If the master had other evidence bearing on his qualifications, the certificate would only be evidence with the rest, going to establish how far he might think instructions necessary. Here the master knew just what the miner’s experience had been. At most he could only have asked that the jury consider whether the board’s certification of the plaintiff might not have assured him
While I should not have reached this verdict myself, I cannot see how we can reverse the judgment without taking over the decision of what have aways been called questions of fact. I dissent.