178 F. 768 | 9th Cir. | 1910
(after stating the facts as above). The principal contention of the plaintiff in error is that the court denied its motion, at the close of all the testimony, for an instructed verdict in its favor, and it argues that where, by the contract of employment, the employé is to construct the appliances by which the work is to be done or made safe, the employer to furnish the proper materials therefor, the latter is not liable to the employé for any defect in such construction or adjustment of appliances, that his duty is fulfilled when he furnishes the employé suitable materials, and that the doctrine of a safe place has no application to such a case. The argument would be pertinent if it were shown that the employé in this instance had knowledge of, or ought to have discovered, from the obvious indicia upon the ground, the existence of the first ditch. But we cannot' say, upon the evidence in this case, that there was upon the ground obvious evidence that the first ditch had been dug and filled, or that the defendant in error was chargeable with knowledge that it had been dug. The fact that the dirt from that ditch lay upon the ground to the southward therefrom would not necessarily apprise him of the depth, the location, or even the existence of the first ditch. So far as he could see, while it might be evidence that another ditch had been dug, it was also evidence that it had been dug and subsequently filled at the point where the earth lay, a point so far away as to occasion no danger of caving in.
The rule that, where employés are to construct and adjust the appliances upon which the safety of their working place depends, the employer is not liable for any defect in such construction or adjustment, has no application here. The accident was not traceable to any failure of the employé to use or adjust.appliances or to take the steps which he should have taken to make his working place safe. It was due to a hidden defect, known to his employer, but, as he testified, unknown to him — the existence of a concealed excavation, and the pressure of the earth newly placed therein. The employer’s duty was either to make the working place safe, or, if the danger was not obvious, to notify the employé of the hidden, unseen, and unappreciated danger, so that he might adopt means for his own safety. If the defendant in error was sent away from another place to work in finishing the nearly completed new ditch without any warning of danger, and did not know of the existence of the adjacent ditch, and it was not apparent to him in the exercise of reasonable care, it cannot be said that the danger of his working- place consisted in the nature of the work in which he was engaged, or from any act or failure to act on his part. The duty of providing a safe place is measured by the character -of the work to be done there. If the work is one of construction or repair, the risks incident to the place and the work are assumed by the employé, and the master’s duty of maintaining a safe place is not so broad as to charge him with injuries to the employé which result from the place becoming unsafe under exigencies created in the progress of the work, which could not have been anticipated. But where an employé is called from other work, and is set to work in an excavation, he has the right to assume that the master has investigated the conditions and
“It is tlie duty and tlie right of the master to give orders and direct the plaees where Ms servants shall work. Their duty is instant and absolute obedience, unless it he obvious to them that such obedience will expose them to unusual dangers. Dispatch, discipline, and the safety of person and property in the execution of work imperatively require that the master should order and the servant obey. It would he practically impossible to carry on a work of any magnitude on any other basis. A workman, when ordered from one part of the work ,to another, cannot be allowed to stop, examine, and ex-jieriment for himself, in order to ascertain if the place assigned to him is a safe one.”
Other cases in point are Baird v. Reilly, 92 Fed. 884, 35 C. C. A. 78, Schroder v. Montana Iron Works, 38 Mont. 471, 100 Pac. 619, and Hilgar v. Walla Walla, 50 Wash. 470, 97 Pac. 498, 19 L. R. A. (N. S.) 367.
Error is assigned to the refusal of the court to give certain requested instructions. The objection to the instructions so requested was that they were based upon the assumption that:
“The plaintiff knew, or ought to have known, the character of the ground where ho was working.”
This, it seems unnecessary to say, was.to ignore the evidence, and to take for granted that the plaintiff had failed to prove the one essential fact on which his right to recovery depended. The whole case was predicated upon the allegations that there was a recently filled ditch approximately four feet away from the ditch in which the plaintiff was injured, and that he was ignorant thereof, and could not have known it by the exercise of ordinary care and prudence. In instructing the jury the court said:
“Ask yourselves whether or not the old ditch was so plain that a man of experience in ditch digging would have seen it. If a man of experience in ditch digging, going there, would have seen it, and Dasseti went in and undertook to dig at the boitom of the new ditch for about six inches, and the cave occurred, he could not recover. Dut if he did not see it, and in the exercise of ordinary care would not have seen it, and was not told of it, and if, furthermore. the cause of the cave was the extra weight in the old ditch and its lateral pressure, he can recover, unless he was guilty of what may be called contributory negligence.”
In view of these considerations, and of tlie instructions which were actually given to the jury, there was no error in refusing the requested instructions. The instructions which were given were appropriate to the evidence. There was one witness for the defendant, it is true, who testified that there were places where the banks of the old ditch showed through and were visible; but the general trend of the testimony was that the old ditch was covered up with tlie dirt taken from the new, and while the witnesses all declared that the dirt taken from the first ditch was also visible in a continuous mound, the fact that it was there, as we have before seen, did not necessarily indicate that there were two ditches, or that there were two ditches in close proximity.
It is assigned as error that the court, in tlie instruction quoted above, charged the jury that the plaintiff’s right to recover depended upon
We find no error in giving or refusing any of the instructions. The judgment is affirmed.