2 Alaska 8 | D. Alaska | 1903
In approaching a discussion of the questions involved in the motion I may say the law affecting the right of the servant to recover for personal injuries'sustained while in the employ of the master seems to have traveled in no uncertain pathway from the days of the old English Case of “Van” down to our own time. The general principles applicable to this class of cases have been long settled, and at this day there is practically no diversity of opinion among courts and law-writers in respect to them. But in the application of well-settled principles to the varying facts of different cases there is found a wide divergence. In the effort of1 courts to apply a principle to variant facts in order to mete out justice in each particular case as made by the evidence, the principle is sometimes whittled away until there remains only a diminutive point.
Nevertheless, in surveying the whole field of the law upon this subject, one is often filled with a sentiment of wonder and admiration for the courts of last resort of our own and other countries, who have succeeded, by their great learning, wisdom, and broad good sense and judgment, in meeting the demands of justice through the ever changing conditions of human society growing out of new inventions in machinery and appliances and the new methods of work and employment.
This question is now fairly before the court for its determination: Do the rules of the defendant company requiring the men operating machine drills to examine conditions around them, and determine for themselves the question of danger or safety of the place where they work, add additional burdens to the duty of the employé beyond those ordinarily required in the performance of like duties? Is the defendant by the adoption and posting of such rules relieved of any duty otherwise required of it toward its servant, and may the master relieve himself of the duty to
The rules of the company are in part as follows: (1) Each man must ascertain that the particular place in which he is employed is absolutely safe. If found to be in an unsafe condition, measures must be taken to remove such danger at once, and, if necessary, the foreman or shift boss must be notified. (2) When returning-to a place after a blast has been fired, the first employé to enter such place-must make a careful examination for any loose rock or other element of danger, and if any such be found he shall immediately make it safe.
These rules are proper, and valuable in calling the attention of the workmen to their duties, and clearly notify them of the necessity for an examination of the conditions around them, to determine whether the place in which they are at work is safe or otherwise. It implies, at least, that reasonable time shall be used by the employé to examine, from time to time, the changing conditions around him, and to see to it that he is exposing himself to no needless risk or danger. It is believed that these rules impose some additional burden upon the employé, but they do not in any wise, in the opinion of the court, relieve the defendant company from its obligation to furnish its servant a reasonably sáfe place in which to work. The obligation
There are conditions under which the rights of a servant to recover could in no wise be affected by such rules. It would be absurd to require an engineer or conductor of a train to examine the conditions of the track for miles in advance, to determine whether it would be safe to run his train over it, before venturing thereon with his engine or train. But it would be reasonable and just to say to the conductor, “the river is high at such a point on your road, and the banks are washing out at the crossing; you must not venture upon the bridge until you have consulted the watchman and made personal examination.” It would seem that every one would agree that such an order or rule would not only be reasonable and proper, but its violation, if injury came to the conductor by running his train upon the bridge without examination or inquiry of the watchman, would preclude him from recovering damages therefor. Many other illustrations might be used to demonstrate the value or lack of value of rules of the character here offered in evidence, but, without further discussion of that matter, there seems but one conclusion clearly deducible, viz., a rule that requires the employé to make personal in
Counsel for the defendant cites with great confidence English v. C., M. & St. P. Ry. Co. (C. C.) 24 Fed. 906, the decision being by Mr. Justice Brewer. This litigation arose out of a death occurring during the repair of a water tank on said railroad. There was a shelf around the base of the tank some feet from the ground, about 21 inches in width, and at the widest place perhaps 2 feet and 5 or 6 inches in width, with no railing around the bottom of the tank to hold on by. The men that were repairing the tank had to stand on this shelf. One of them, while working, slipped and fell to the ground and was killed. Judge Brewer says:
“The company was negligent as to said shelf, and. there is no question but it was grossly negligent It would have been a very simple thing to have put an iron rail on the outside of that tank, which a man might hold on to, and the company ought to have put it on. But the question, and the only substantial question, in the case, as counsel well say, is whether deceased was guilty of contributory negligence. I take it the law as stated by counsel for plaintiff is supported by many authorities, and is correct, that where a master commands his servant to go outside of his regular employment to do a work which is attended with special danger, and the servant in response to the specific commands of his master goes and does the-work in the way and at the time directed, the fact that the servant knew it was dangerous does not exonerate the master from responsibility, or make the servant guilty of contributory negligence, unless*18 tlie character of the clanger be so patent and so extreme that no one but a foolhardy, reckless man would attempt it. * * * It does not appear from the testimony whether a ladder could of could not have been obtained, but he might have taken time to do something. He might haye driven in some nails for his protection, or used other methods which would have afforded him protection. The testimony is silent upon this point, but it appears that there was no specific directions, nor was English commanded to do this work in a specific way and in a specified time. It is very clear from the testimony that he might have taken a great many precautions to protect himself without infringing upon the commands which were given to him.. But instead of that he walked around, stood on a slippery place, and fell. Under these circumstances, can it be said that he was not guilty of contributory negligence? * * * This is one of the dangers whose existence and extent every one has equal capacity for determination. A slippery wall with ice on it, with no support — you do not require to have any technical knowledge, or to be skilled in machinery, or learned in the law, to know that there was danger in walking thereon. When I walk on a shelving place I know it is dangerous, and if there is ice on it, it. is more dangerous; and if there is nothing to hold on to, that makes it still more dangerous. Ev.ery one knows that. It is not as though the master 'had sent the servant among some machinery of whose danger only a mechanic may have full knowledge.”
It will be observed that this man was sent away from his regular employment to an unusual employment, to do a particular thing. He was at liberty to protect himself, and to do the work in his own way, having no orders about it. He deliberately chose to go upon a place of danger that was so clear and certain that no man could mistake it. The man himself must have seen and recognized the danger, knew it as well as any one could possibly tell him; he chose to take the chance, and was killed. Can there be any doubt that this was contributory negligence, no matter what the negligence of the corporation? But does this case in any wise tend to support the contention of cpunsel? It is clear, we think, as a principle of law, that where the danger is patent, and is known alike to the master and servant, and the servant chooses to go into' the place of
The next case cited by counsel for defendant is found in 31 Fed. 528 (Anderson v. Wintson). This is a case where the plaintiff was one of a gang of workmen hired by the contractors, and while excavating a tunnel was injured by an earth slide produced by a cracking of the soil from the blast. . The dirt slid in upon the plaintiff, and lie was injured. During the blasting a crack was formed. After a blast on the afternoon of the day before the accident, and some time during the morning, there was a slide of earth which injured the plaintiff. It is claimed the foreman of the gang saw the crack, and did not inform the men of the fact that it was a dangerous place. The plaintiff was .ordered to work there. The evidence of all the parties, with the exception of one, in regard to the character of the excavation, goes directly to the point that the foreman saw the crack, and that they also saw it. Anderson testified he didn’t see it, bút it was obvious, if there was any danger, it was as apparent to Anderson as to any one else. In this case it would seem that, because the danger was patent, and was either observed or might have been observed by all persons exposed to the danger, the plaintiff was guilty of contributory negligence. The evidence in the case at bar is not at all uniform upon the question of the patentcy of the danger which threatened Seittn; indeed, it is testified by the foreman, Noonan, that when he looked at the place in the morning of the day of the accident it looked safe, and the plaintiff testifies that it was safe as far as he could see and examine.
In the case of Erskine v. Chino Val. Beet-Sugar Co. (C. C.) 71 Fed. 270, it would seem that Erskine was injured by the breaking of a certain rope; that he had charge of all the ropes and rigging of the company, and had selected the same rope used at the time of his injury. The court held that, inasmuch as the duty of inspecting the rope and the selection of it in the first instance devolved upon Erskine, he could not recover for injuries sustained by a defect in the' rope; it being clear at the same time that the defect in the rope was not a patent one, and was one that the master could not have been informed of. Counsel in the case at bar seems to believe that, because it was the duty of the servant in that instance to inspect the rope and rigging
The case of Lindsay v. New York, N. H. & H. R. Co., 112 Fed. 384, 50 C. C. A. 298, is a case where a brakeman was injured by falling into a drain. The syllabus of the ■case is sufficient to indicate the question involved, and is .substantially as follows: Where a brakeman who had been ■continually employed in a railroad yard for over nine'months was injured by falling into a drain which with 118 other similar drains had plainly existed in the yard during all the time of his employment in substantially the same condi
The case of the Moon-Anchor Consol. Gold Mines, Limited, v. Hopkins, 111 Fed. 298, 49 C. C. A. 347, it would seem, was one wherein the verdict was based upon some offered testimony which was excluded by the court, and was therefore not before the jury for its consideration. And, not
Again, counsel for the defendant cites Bethlehem Iron Works v. Weiss, 100 Fed. 45, 40 C. C. A. 270. In that case it was held:
“Tlie rule that it is the duty of a master to provide his servant with a reasonably safe place in which to work is not an absolute one, but is qualified and limited by the other rule that the servant assumes all the ordinary risks incident to the service so far as those risks at the time of entering upon the service are known to him, or should be readily discernible to a person of his age and capacity, in the exercise of ordinary care, whether his business is dangerous or not. Such rules do not deprive the master of the right to manage and conduct his business according to his own judgment, even though other methods might be safer; and where the place provided by him for the servant to work is free from dangers which are latent or not obvious, or he has instructed the servant upon entering his service expressly of such dangers, if they exist, he has fulfilled his duty in the premises.”
The question presented in the case at bar is somewhat unusual, and in my opinion one that may be regarded under -all the facts and circumstances of the case, as to whether the question of contributory negligence should be submitted to the jury, a close one. The rules of the company, of which the plaintiff was advised, were to the effect that each man should ascertain that the particular place in which he was to work was absolutely safe. If found to be unsafe, the employe was to notify the foreman or shift boss. It was also required that, when the servant was returning to a place after a blast had been fired, the first employé to enter such place must make a careful examination for any loose rock or other element of danger, and if any such should be found he should immediately make the place safe.
Still another rule required the employés to carefully ex-
Taking these rules together, what do they mean? Each man was to ascertain that the particular place in which he was employed was absolutely safe. What is meant by the “particular place” ? Is the servant to understand by this rule that he is to examine all the conditions of the mine that might affect his safety; or was he to examine the conditions immediately about him,, whereby he might be injured if the place was unsafe ? The particular place is no doubt the place where the servant is at work, and the conditions to be •examined are those conditions immediately surrounding him. Employés must carefully examine the workings before setting up machines, and all missed holes must be fired before drilling is commenced. This means, so far as the rule may be construed by persons of ordinary understanding, it seems to me, when taken with the other rule as to the particular place, that the servant should carefully examine the ground before setting up his machine, has reference to the working •at the place where the machine is to be set or is being set, and more • especially to examine for missed holes before commencing work. Again, when returning to any place after a blast had been fired, the first employe to enter such place must make a careful examination for any loose rock or other element of danger. In the case at bar it is said the plaintiff was the first person to return to the workings in the Glory Hole after the blast was fired, and that the duty devolved upon him to make the examination for loose rock or other elements of danger. This rule seems to presuppose, at least, that rock might become loosened above the place where the servant was at work, and that any rock so loosened by the blast should be removed before work was resumed. The rule refers to conditions that may grow out of the blasting,
It would seem in this case that there were some dangers peculiar to the place in which the servant was working that he necessarily understood and should have taken note of; that one of these conditions was the liability of the-rock upon the wall of the Glory Hole to slip from its place- and fall down at various times; that to guard against such dangers required constant watchfulness on the part of the employé. And these rules seem to have been drawn, partially, at least, to call the attention of the employé to this danger, and to so emphasize it that watchfulness in this regard might be constant on the part of the servant. It is in evidence, and the testimony upon this proposition is uncontradicted, that after the benches in this mine are worked down to the bottom of what is called the Glory Hole or the 110-foot level, before working further it is the custom to begin at the top and work all the way down with pick, bar, and. shovel, to remove and clean off any loose rock or dirt that may be found upon the side of the wall in a position where it might come down at any time during the progress of the-work unless cleared away. When the walls have been thus prepared it seems the work of cutting down new benches and blasting off the ore began anew. By clearing this wall from all loose or shattered rock that might have been left,, the master seems to have done all that was reasonably necessary to make further work in this place a reasonably safe employment. The pieces of rock that might be disturbed thereafter by blasting and other changing conditions of the-mine were matters that the employé was charged to examine-into and ascertain from time to time as blasting occurred im the mine. But this was a duty not only required of the employé, but a duty that devolved upon the master as well, in order that the place might be made a reasonably safe one-
The plaintiff testifies that the slide of rock came from the surface some 80 feet above him; that he examined the side of the wall above him after the blast as far as he could see; that he was unable to see the surface, and could not see the particular point from which the rock came that struck him and injured him. Other witnesses say that the rock which did the injury came from a few feet above the plaintiff’s head, and was clearly to be seen by a reasonable examination on the part of the plaintiff, and might have been barred down. The plaintiff’s helper testifies substantially that he saw the place from which the rock fell a’ moment before it did fall; that he was nearer the wall and in front of the machine, and jumped away to a place of safety. Another witness testifies on behalf of the plaintiff that shortly after the accident he examined the wall and the surface, and found cracks running down through the frozen dirt on the surface, and that the surface and side of the wall had the ap
It is to be remembered that the duty of the master to furnish a reasonably safe place for his servant to work is qualified by the conditions attending the work or service upon which the servant enters. The servant is presumed to understand those dangers necessarily inherent in the' service upon which he enters, and he takes such risks upon himself. The duty of the master to furnish a safe place to work is qualified further by the duty of the servant to observe the rules of the company, and to so act in obedience thereto that the danger attending the work may be- minimized as far as possible. The master never warrants the servant’s safety and never guaranties the safety of the place; he discharges his duty by observing due care in this behalf. -The servant may not by indifference and want of care bring misfortune upon himself, and then charge the master with negligence when disaster comes to him, but he must be alert and observant of conditions around him;' and particularly is this true where the rules of the master, in addition to the duties the law. imposes, require him to make inspection for his own protection. “Where the work in progress necessarily changes the character for safety of the place in which it is performed as the work progresses,” says Judge Sanborn, “the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary
It is generally held that contributory negligence is a question for the jury, and is one that should never be taken from a jury unless the case is so clear that in case of a verdict against the defendant it could not be sustained by the court. Counsel for the plaintiff urges with a great deal of earnestness and skill his claim that the evidence in the case as to contributory negligence is at least contradictory, and is therefore a question peculiarly for the jury. If counsel
Under all the circumstances of the case, however, I am forced to the conclusion that the defendant is not liable. I shall therefor instruct the jury to find for the defendant.