Matson v. Hines, 207 P. 474

Matson v. Hines

207 P. 474 | Mont. | 1922

Lead Opinion

HONORABLE ROT E. ATERS, District Judge,

sitting in place of MR. JUSTICE REYNOLDS, disqualified, delivered the opinion of the court.

Plaintiff: brought this action to recover damages for personal injuries suffered by him during his employment as a section-hand for the Northern Pacific Railway Company. The injury pleaded was a relaxation of the left inguinal ring, left side and back, and left lower part of the abdomen. The negligence charged is that defendant failed to furnish a sufficient number of servants to assist plaintiff in lifting and carrying a railroad rail weighing approximately 750 pounds. The answer denied the negligence and affirmatively pleaded the assumption of risk by plaintiff. A reply denied the assumption of risk, and upon these issues the trial was had. At the close of plaintiff’s case, defendant moved for a nonsuit, specifying as one of the grounds therefor that plaintiff’s evidence showed that he assumed the risk of the injury claimed to have been received by him. This motion was overruled, and, after defendant had introduced his testimony, the jury returned a verdict for plaintiff, upon which judgment was entered. An order was made overruling defendant’s motion for a new trial, and this appeal is from that order and the judgment.

As a matter of law, in this state, an employee of a railroad company operating a railroad is deemed not to have assumed the risk incident to his employment, when such risk arises by reason of the negligence of his employer, or of any person in the service of such employer. (Sec. 6607, Revised Codes 1921.) However, the defense of assumption of risk may be interposed as a bar in an action for personal injuries *218of an employee, when such injuries have been caused by hazard which is incident to the particular business. - When they have resulted from a hazard brought about by a failure of the employer to exercise the degree of care required of him by law to perform his primary duty to provide a reasonably safe place of work and reasonably safe appliances for the work, the defense is also available, provided the employee is aware of the condition of increased hazard thus brought about, or it is so obvious that an ordinarily prudent person, under the same circumstances, would have observed and appreciated it. (McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701; Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973; Leary v. Anaconda C. Min. Co., 36 Mont. 157, 92 Pac. 477; Monson v. La France Copper Co., 43 Mont. 65, 114 Pac. 778; Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809; Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268, 163 Pac. 560.)

When an employee knows and appreciates the danger brought about by defective, appliances or an unsafe condition of the place of his work, he assumes the risk. In this connection he is bound to use his senses, and cannot allege ignorance of a hazard which is obvious to anyone of ordinary intelligence and understanding, and though he does not apprS' ciate the extent of the hazard, or does not know precisely the injury he may incur, the risk is his; yet, if the hazard requires knowledge or judgment not possessed by men of ordinary observation, the servant does not, as a matter of law, assume the risk. Assumption of risk implies knowledge, or the means of knowledge, and appreciation of the danger. (Cases supra; Alexander v. Great Northern Ry. Co., 51 Mont. 565, L. R. A. 1918E, 852, 154 Pac. 914; Morelli v. Twohy Bros. Co., 54 Mont. 366, 170 Pac. 757.)

Plaintiff introduced no other evidence than his own upon the facts concerning the happening of the injury. He testified that he was twenty-eight years old and had been en*219gaged in manual labor thirteen or fourteen years; that he had been working on railroads about two or three years; that he had before assisted in carrying rails weighing from 750 and 800 pounds, and knew that six or eight men were used in such work, and that such number were necessary to carry the thing (rail) with reasonable safety to the men doing the lifting; that at the time of the injury there were only himself and three other men lifting and carrying the rail by means of two pairs of tongs; that he had been employed by the Northern Pacific Railway Company since January 31, 1919, to the date of the injury, February 17 following, during all of which time he had been handling rails and doing the same class of labor that he was engaged in at the time of the accident. This testimony discloses that plaintiff was of mature years, experienced in the work he was performing, and knew that six or eight men were necessary to move the rail with reasonable safety. If he knew that six or eight men were necessary to move the rail with reasonable safety, then it must follow that he knew it was not reasonably safe to move it with four men. Hence he must be held to have appreciated the danger when he attempted to move it with the latter number.

Plaintiff contends that, because he was acting in compliance with orders from his foreman, he did not assume the risk incident to the work he was ordered to perform. An examination of the cases cited in support of this position discloses different facts than here considered. There the servants had no independent knowledge of the danger, nor was it obvious, glaring or imminent. The servants, acting under orders, relied upon the superior knowledge of their masters, and in such instances it was held that the servant had the right to rely upon his master’s judgment, assuming that the order could be obeyed safely, or it would not have been given. Quite the contrary in the instant case, for here we have the servant admitting his knowledge of the danger.

In cases of the character of this one, which may be classed as “strain cases,” the injury occurring by overtaxing one’s *220strength, the rule is that the lifting of a heavy object involves no peril that is not obvious to any person of common understanding. The employee is the best judge of his own lifting capacity, and the risk is upon him if he overtaxes it. An employee, who undertakes to lift, or assist in lifting, a heavy object, knowing its weight and condition, assumes the risk of the injury due to the task being too great for his strength, and, in ease injury results, he is not entitled to recover damages from his employer. (Sorenson v. Northern Pac. Ry. Co., supra; Worlds v. Georgia R. Co., 99 Ga. 283, 25 S. E. 646; Southern Kansas Ry. Co. v. Moore, 49 Kan. 616, 31 Pac. 138; White v. Owosso Sugar Co., 149 Mich. 473, 112 N. W. 1125; Haviland v. Kansas City etc. R. Co., 172 Mo. 106, 72 S. W. 515; Stenvog v. Minnesota Transfer Ry. Co., 108 Minn. 199, 17 Ann. Cas. 240, 25 L. R. A. (n. s.) 362, 121 N. W. 903; Ferguson v. Phoenix Cotton Mills, 106 Tenn. 236, 61 S. W. 53; Haywood v. Galveston etc. R. Co., 38 Tex. Civ. App. 101, 85 S. W. 433; White on Personal Injuries on Railroads, sec. 339.) The exception to this rule occurs when the servant is of immature years, or is inexperienced in the particular work at which he is injured. (Sorenson v. Northern Pac. Ry. Co., supra; Sherman v. Texas etc. R. Co., 99 Tex. 571, 91 S. W. 563.)

We appreciate that, if the employee should stop to make tests and experiments to determine for himself whether he could safely obey the orders of his foreman, it would be impossible to accomplish any kind of enterprise, where a considerable number of men are employed on the same work, and that it is his duty to obey orders from superiors, unless he has independent knowledge, or it is obvious that obedience will expose him to unusual danger. Here we have the plaintiff, an employee coming under the rule in “strain cases,” and in addition thereto possessing independent knowledge of the danger. That he assumed the risk is the only conclusion to be drawn from his own testimony. Defendant’s motion for nonsuit should have been granted.

*221The order and judgment appealed from are reversed, and the district court is directed to enter judgment upon defendant’s motion for nonsuit.

Reversed.

Associate Justices Holloway and Galen concur.

Dissenting Opinion

Mr. Justice Cooper:

I dissent. The primary duty of the employee is obedience to the orders of the master. He is on a wholly different footing from the foreman, who is charged by the employer with the duty of directing the employees, even as to the manner in which the particular act shall be done. It is bound to furnish and maintain suitable appliances for the work which it requires the employees to perform. This includes instrumentalities, as well as mechanical devices. (White on Personal Injuries, sec. 262; Wallace v. Tremont Ry. Co., 140 La. 873, L. R. A. 1917D, 959, 74 South. 179; 3 Labatt on Master and Servant, sec. 1107; Illinois Central Ry. Co. v. Langan, 116 Ky. 318, 76 S. W. 32; Young v. Lusk, 268 Mo. 625, 187 S. W. 849.) Whether the employer has furnished sufficient help is ordinarily a question for the jury. (4 Labatt on Master and Servant, sec. 1309; Chicago etc. Ry. Co. v. Cronin (Okl.), 176 Pac. 921; Pittsburgh etc. Ry Co. v. Edwards (Ind.), 129 N. E. 310; Patterson’s Railway Accident Law, sec. 297.) The true rule is: The employee never assumes risks growing out of the master’s negligence, unless he knows of the failure of duty and consequent dangers, or the failure of and the danger therefrom are so obvious that an ordinarily prudent man in Ms situation would have observed the one and appreciated the other. (Carter Coal Co. v. Howard, 169 Ky. 87, 183 S. W. 244; Chesapeake etc. Ry. Co. v. De Atley, 159 Ky. 687, 167 S. W. 933; Id., 241 U. S. 310, 60 L. Ed. 1016, 36 Sup. Ct. Rep. 564; Illinois Central Ry. Co. v. Langan, supra; Thompson on Negligence, sec. 4878.)

It required, as a general rule, from six to eight men to handle the rail with safety. On this occasion, there were present and participating in the lifting and carrying of tbe rail *222the plaintiff and three other men, including the foreman, who, standing in place of the master and directing the operations, apprehended no dangér on account of the diminished force. Under these circumstances, he, for the company, assumed all the risk, and not the plaintiff. It was, at least, a situation where the probability of danger was such that prudent men might entertain different views. Section 6607 of the Revised Codes of 1921 (Chap. 29, Laws 1911) reads as follows: “An employee of any such person or corporation so operating such railroad shall not be deemed to have assumed any risk incident to his employment, when such risk arises by reason of the negligence of his employer, or of any person in the service of such employer.”

Rehearing denied June 5, 1922. Petition for writ of certiorari denied by the supreme court of the United States on November 13, 1922.

The common-law rule in force before the Act became effectual is correctly stated in the opinions of this court cited in the majority opinion. The Act, however, relieves the employee of that burden, except in cases where the operation involves danger so 'glaring that no prudent person would take the chances. In Young v. Lusk, supra, it was held that, even in an action under the federal Employers’ Liability'Act, the employer could not rely upon the defense of assumption of risk in case he himself had been negligent.