No. 1693 | N.M. | Apr 7, 1917
OPINION OP THE COURT.
(after stating the facts as above). The only question before this court for its determination is whether or not the injury in question grew out of conditions of such a character as justified the trial court in holding, as a matter of law, that the plaintiff assumed the risk and cannot recover the damages sought. We will therefore refer only to that portion of the evidence having to to with the condition out of which the injury grew, and we find from the record that, while the plaintiff had been employed in the mine in question for several months earlier in the year, that his employment had terminated, and that in the interim between his first and second employment the change in the runway where the accident occurred had been made. At the time of the injury he had been employed but two days in his work of spragging the cars of the defendant company, and he testified positively that he was injured at the place in question, and the evidence of other witnesses bears him out in this. There is some difference in the testimony as to whether or not the obstruction in the runway was two inches in height or six inches above the level of the earth adjacent thereto. The appellant testified that the planks were two inches above the level of the earth, while from the testimony of another witness it might be argued that the plank runway was about six inches above the level of the remaining portion of the runway. Whatever this fact may be, however, it appears from the evidence that the condition was recognized as a dangerous one to which the attention of the defendant had been called with the suggestion that the same be remedied, the superintendent of the defendant company, however, refusing to remedy the condition, stating that it was all right.
In this connection it is the contention of the appellee that the risk was patent ,and therefore assumed by the plaintiff, he being a man of experience in the work in which he was engaged; that, the condition being openly visible, he must be presumed to have noticed it. There might be some merit in this contention if the evidence was all one way upon this point, but the witness Newman was not certain as to the character of the obstruction. lie said that it might be about six inches, while the other evidence upon this point indicates a less obvious condition.
It is shown by the evidence that a number of persons using the runway had stumbled over the same obstruction at different times. It is therefore clear from the evidence that the place, under the circumstances, was of a more or less dangerous character, and that the attention of the employes of the defendant company had been called to this condition. The condition had not been long existing, but arose out of the change made in the runway which had been made a short time before the accident.
“A servant, engaging for the performance of specified services, takes upon himself the ordinary risks incident thereto.”
But, as we have pointed out in the opinion referred to, if the facts of the case should disclose that the risk is not of an ordinary kind, but of an extraordinary character, the rule as to the assumption of ordinary risk by the servant should not apply. Our conclusion there stated was that the servant assumes all the ordinary risks of the service and all of the extraordinary risks, i. e., those due to the master’s negligence, of which he knows and the dangers of which he appreciates.
' “The reason wby the doctrine of the servant’s non-assumption of extraordinary risk has arisen, as an exception to the common-law rule of assumed risk, or accepted risk, as it is designated by some authors, may be said to rest primarily upon the consideration that, as the master has control of the conditions which affect the servant’s safety, he is the party who ought in fairness to be held responsible if those conditions are not such as a prudent man would maintain under the circumstances. It is ailso said that extraordinary risks are not assumed because tbey are not the natur'al and ordinary incidents of tbe servant’s work.”
Applying these principles of law, which this court has heretofore adopted, it would seem to be clear that a condition in the runway of the defendant’s mine existed which was recognized to be a dangerous one and which employes had sought to have remedied, but which the superintendent of the defendant company had refused to correct.
The evidence discloses that the servants of the defendant company engaged in work such as the work of the plaintiff on the occasion of the injury were required to use this runway in their work, which was of such a character that they were not at all times able to observe the place where they were about to step, by reason of the fact that they were required to run alongside the tram cars with one hand, upon the car and with their eyes upon the wheel in order that, with the other hand, the oak stick or sprag could be inserted between the spokes of the wheel, thereby blocking it and causing the cars to slow up' or stop, all of which clearly and imperatively required that the master should use reasonable care in preserving the runway in a safe condition, which, judging from the evidence introduced in this case, it neglected and failed to do.
It can hardly be said that the condition was an ordinary condition pertaining to the business or the character of the work done. It was, on the other hand, an extraordinary condition, arising out of the change in the runway which has been referred to, and, so far as the evidence discloses, it does not appear that the plaintiff: had any knowledge of the condition.
If the contention of appellee be correct upon the proposition that there is evidence to support the contention that the obstruction was of such a character that a knowledge of its condition must necessarily be imputed to the plaintiff, with the result that we should hold that he as-' sumed the' risk because of its obvious nature, we would point out that there is other evidence in the case to the effect that the obstruction was but two or, at most, three inches in height, and this conflict of evidence would certainly make it possible for at least two inferences to be drawn, one which would impute a necessary knowledge to the. plaintiff, and the other which would support him in his contention that he had not noticed the obstruction.
Therefore, as we have indicated, it is our conclusion that the state of facts here in question did not constitute an ordinary risk, but an extraordinary one, resulting from the negligence of the master; and, as we have indicated, it not appearing that the servant knew of the condition, we conclude that the trial court was in error in directing a verdict for the defendant.
The judgment of the district court will therefore be reversed, and the cause remanded for a new trial.