5 Dakota 517 | Supreme Court Of The Territory Of Dakota | 1889
(after stating the facts as above.) The evidence in this action, when construed most favorably to the plaintiff, discloses that in November, 1885, he engaged his services to the defendant as a laborer; that he and a considerable number of other men were at work under the supervision of one Mahoney, as foreman, in the work of shoveling gravel from a gravel bed or bank onto a train of platform cars, which, when loaded, were drawn to Sioux Falls, a distance of a few miles, emptied, and returned to the pit for the purpose of being reloaded; that the plaintiff had been thus engaged 10 days or more when the accident complained of occurred; that about November 25, 1885, an overhanging bank of the gravel-pit, 12 or 13 feet high, having been produced by the removal of gravel under and adjacent to it, was attempted to be pried down by the foreman, who for that purpose went upon the bank with a bar, and commenced prying, having first given the men in his charge notice of what he was about to do. The plaintiff and the other men at work heard the warning, and stopped working for a few moments, and watched the foreman’s efforts to pry down the bank. The bank failing to yield to his efforts, the foreman told the men to proceed with their work. The foreman continued his efforts to break down the bank, and the plaintiff returned to his labors at a point from which he could see him, (the foreman;) and when he supposed he was in a place of safety, to use his language, “We went to work again. In mean time, while I was yet at work, the boss was breaking on that piece upon the bank. * * * I thought we were so far away from the cut, we were out of the way. I thought sure it could not hurt me. Then I saw it come, — I saw the bank come down. I was trying to get back. There was a big chunk lying in the way. I got one foot out of the way, but the other got caught. I ran against this chunk
The train being loaded at the time of the accident comprised 14 cars. This was substantially all the evidence in the case in favor of the plaintiff’s right to recover, and it is obvious that it wholly fails to establish negligence on the part of the appellant. There is no pretense that Mahoney was not an entirely competent person for foreman, or that the defendant was guilty of any negligence in engaging his services in the capacity in which he ■was employed. Was the foreman himself negligent? It will •not be pretended that it was negligence in him going upon the ■bank, and attempting to break it down, especially as he gave ■warning to the men in his charge, which the plaintiff understood, that he was about to do so. Nor can it rightfully be said '.that his negligence in continuing his efforts to pry off the bank,
■ Another sufficient defense under the facts as established by the evidence in behalf of the plaintiff is that the injury complained of was one of the ordinary risks which he assumed when he engaged his services to the defendant, in the business which he undertook. He was a person of usual intelligence, in possession of all his faculties. He was entirely familiar with the gravel-pit, the height of the embankment, and the effect of the thawing frost upon it; also that the foreman and conductor were-trying to pry it down. He saw them at work, and understood the situation in all respects; and notwithstanding it was fraught with danger to a greater or less extent, (and this it was, to his own knowledge,) he assented to incur the dangers to which he was thereby exposed, and proceeded with his work. It is difficult to perceive in this case that any precautions for his safety had been neglected, but, if they had, having consented to serve-in the way and manner'in which the business was being conducted, with full knowledge thereof on- his part, he cannot now be heard to complain.. The following cases are analogous to the one at bar, and fully sustain the respondent’s contentions;