210 F. 209 | 8th Cir. | 1914
(after stating the facts as above). -
' denial. In such case, its formal reiteration later should not operate to bar affirmative defenses tendered in good faith under a code framed with a view to substantial justice between litigants.
“The agreement of a servant to assume the ordinary risks of his employ-ment and the extraordinary risks thereof that are known * * * inheres-in and is an inextricable part of his contract of employment, and, when the latter is-proved or admitted, the assumption of these risks is proved, and no-pleading or proof on the part of the defendant is necessary to establish it.”
There can be no doubt that the duty of exercising reasonáble care-to provide a reasonably safe place to work, as applied to the particular nature of the work in hand, devolves in all cases upon the master; but it is equally true that the servant may and does assume certain risks,
In United States Smelting Co. v. Parry, supra, the rule is thus comprehensively stated:
“It is tlie duty of a master to exercise reasonable care to provide a reasonably safe working place for bis servant, and tbe latter is entitled to act upon tbe assumption tbat that duty bas been performed, unless tbe contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection to ascertain whether or not that duty bas been performed, but only to have due regard for what be actually knows and for what is so patent as to be readily observed by him, by tbe reasonable use of bis senses, having in view, bis age, intelligence, and experience.”
In the case at bar, from the testimony of the plaintiff, of Kirby, the pit boss, and of the witness Morgan, the secretary-treasurer of the Miners’ Organization, an issue of fact was raised, which, under the foregoing principles, should have been submitted to the jury, whether, either as an incident of his employment or by virtue of the orders issued to him, it was or was not the duty of the plaintiff, in conjunction with others, to clean and make safe the place in which he was to work, and whether, if he proceeded with his work before the proper conditions of safety were established, he did not assume the risks involved, and .was not at the same time guilty of contributory negligence.
Because, in our opinion, defendant was denied a full and complete presentation and submission of its defenses, the judgment below is reversed, and the case remanded, with directions that a new trial be granted.
HOOK, Circuit Judge, concurs in the result.