126 F. 495 | 8th Cir. | 1903
Lead Opinion
after stating the case as above, delivered the opinion of the court.
The defendant did not plead in this case that the plaintiff was guilty of contributory negligence. Its only defense was that the rapidly revolving cogs were seen and known by the plaintiff, that the danger from them was apparent, and that she assumed the risk of it. These are the questions, therefore, which the instruction to the jury presents : Are the risks from defective place of employment, appliances, and fellow servants which employés assume by entering and continuing in the service of a master with knowledge of the situation and its dangers and without complaint, limited to those risks the danger from which is so imminent that persons of ordinary prudence would not incur them? Or do the risks capable of assumption in
The charge of the court answered the first of these questions in the affirmative, and the second in the negative. It was, in effect, that the defense of assumption of risk and the defense of contributory negligence were identical in effect and coterminous in extent, that no servant in the exercise of due care can lawfully assume the risk of a defective place, defective machinery, or defective appliances, and that it is only where the danger from them is so grave that no prudent person would chance it that a servant can lawfully contract to take the chance of the injury which they may inflict upon him. This instruction was undoubtedly inspired by the opinion of the majority of this court in Southern Pac. Co. v. Yeargin, 109 Fed. 436, 442, 48 C. C. A. 497, 503, to which the writer never assented, and the following authorities are now cited in support of it: Hough v. Railway Co., 100 U. S. 224, 225, 25 L. Ed. 612; District of Columbia v. McElligott, 117 U. S. 621, 631, 6 Sup. Ct. 884, 29 L. Ed. 946; Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 655, 6 Sup. Ct. 590, 29 L. Ed. 755; Goodlett v. Louisville & Nashville R. Co., 122 U. S. 391, 411, 7 Sup. Ct. 1254, 30 L. Ed. 1230; Northern Pac. R. Co. v. Mares, 123 U. S. 710, 712, 714, 715, 720, 8 Sup. Ct. 321, 31 L. Ed. 296; Kane v. Northern Central R. Co., 128 U. S. 91, 94, 9 Sup. Ct. 16, 32 L. Ed. 339; Snow v. Housatonic R. Co., 90 Mass. 441, 450, 85 Am. Dec. 720; Ford v. Fitchburg R. Co., 110 Mass. 240, 241, 242, 243, 261, 14 Am. Rep. 598; Patterson v. Pittsburg, etc., R. Co., 76 Pa. 389, 394, 18 Am. Rep. 412; Wuotilla v. Duluth Lumber Co., 37 Minn. 153, 155, 33 N. W. 551; Francis v. Railroad Co., 127 Mo. 658, 666, 672, 28 S. W. 842, 30 S. W. 129; O’Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 212, 218, 21 S. W. 503; Thorpe v. Missouri Pac. R. Co., 89 Mo. 650, 653, 2 S. W. 3, 58 Am. Rep. 120; Wood’s Law of Master and Servant, § 385; Buswell on Law of Personal Injuries, § 207; Shearman & Redfield on Law of Negligence, § 211.
There is an exception to the law of assumption of risk as well established as the rule itself. It is that, where a servant makes complaint to his master of a dangerous defect in his place of work or in the appliances furnished him, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from the defect is so imminent that a person of ordinary prudence would not continue in the employment after the defect is discovered. Hough v. Railway Co., 100 U. S. 225, 25 L. Ed. 612. Of course, cases which fall under the exception are not governed by the rule, and the only defense remaining in such cases is that of contributory negligence. Laying aside the case of Southern Pac. Co. v. Yeargin, all the cases above cited fall within the exception, so that the doctrine of assumption of risk was not applicable to them, and the only question remaining in them was one of contributory negligence, excepting the cases of Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 653, 6 Sup. Ct. 590, 29 L. Ed. 755; Goodlett v. Louisville & Nashville R. Co., 122 U. S. 391, 411, 7 Sup. Ct. 1254, 30 L. Ed. 1230; Ford v. Fitchburg R. Co., 110 Mass. 240-243, 261, 14 Am. Rep. 598; Wuo
It is said that if, by entering or continuing in .the service, an employé may assume the risk of a defect which arises from the violation of the duty of the master to exercise ordinary care to provide a reasonably safe place or reasonably safe appliances, the master may be in large part relieved from the discharge of this duty, and may be led to furnish more defective places arid appliances than he otherwise would do, and that for this reason the doctrine of assumption of risk ought not to be permitted to apply in cases in which the danger is not so imminent that prudent persons would not incur it. The answer to this contention is: (1) That the servant is constantly at liberty to accept or reject the employment, and may do so at any time in case the wages do not in his opinion compen
The danger from the negligence of fellow servants is not so imminent that persons of ordinary care and prudence will not and do not incur it, and yet the Supreme Court and the courts of America and England generally agree that, in the absence of statutory provisions to the contrary, an employé who, with others, enters the service of a common master, assumes the risk of their negligence. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. The danger from unblocked frogs upon a railroad is not so imminent that employés of ordinary care and prudence would not and do not engage and continue to operate trains over them, and yet the Supreme Court and other courts hold that such servants assume the risk of the injuries which they may entail. Southern Pac. Co. v. Seley, 152 U. S. 145, 155, 14 Sup. Ct. 530, 38 L. Ed. 391; Appel v. Buffalo, etc., R. Co., 111 N. Y. 550, 19 N. E. 93; Gillin v. Railroad Co., 93 Me. 80, 86, 44 Atl. 361; Wood v. Locke, 147 Mass. 604, 18 N. E. 578; Mayes, Adm’r, v. Chicago, R. I. & P. Ry. Co., 63 Iowa, 563, 14 N. W. 340, 19 N. W. 680. The danger of injury from low bridges on railroads is not so grave that servants of ordinary prudence and care would not and do not engage and continue to operate railroads through them, and yet they assume the risk of the injuries which result from these bridges. Myers v. Chicago, St. P., M. & O. Ry. Co., 95 Fed. 406, 407, 37 C. C. A. 137, 138; Brossman v. Railroad Co., 113 Pa. 490, 6 Atl. 226, 57 Am. Rep. 479; Smith v. Railroad Co., 42 Minn. 87, 43 N. W. 968; Devitt v. Railroad Co., 50 Mo. 302, 305. ‘The danger of injury from working on the greasy floor of a packing house, or from depressions in cement floors, is not so grave that persons of ordinary prudence would not and do not engage and continue to work upon them, and nevertheless the risk of such injuries is assumed by the servants who engage in the employments. Cudahy Packing Co. v. Marcan, 45 C. C. A. 515, 517, 106 Fed. 645, 647; Kleinest v. Kunhardt, 160 Mass. 230, 35 N. E. 458; Hoard v. Blackstone Mfg. Co., 177 Mass. 69, 71, 58 N. E. 180. The danger of in
The doctrine of assumption of risk is placed by the authorities and sustained upon two grounds. That doctrine is that, while it is the duty of the master to exercise ordinary care to provide a reasonably safe place for the servant to work and reasonably safe appliances for him to use, and while, unless he knows or by the exercise of reasonable care would have known that this duty has not been discharged by the master, he may assume that it has been, and may recover for any injury resulting from the failure to discharge it, yet he assumes all the ordinary risks and dangers incident to the employment upon which he enters and in which he continues, including those resulting from the negligence of his master which are known to him, or which would have been known to a person of ordinary prudence and care in his situation by the exercise of ordinary diligence. The first ground upon which this rule of law rests is the maxim, Volenti non fit injuria. A servant is not compelled to begin or continue to work for his master. Ordinarily, he does not work for him under a contract for a stated time. He is at liberty to retire from his employment, and his master is free to discharge him, at any time. The latter constantly offers him day by day his wages, his place to work, and the appliances which he is to use. The former day by day voluntarily accepts them. By the continuing acceptance^ of the work and the wages he voluntarily accepts and assumes the’ risk of the defects and dangers which a person of ordinary prudence in his place would have known. No one can justly be held liable to another for an injury resulting from a risk which the latter know-i ingly and willingly consented to incur. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 161, 29 N. E. 464, 31 Am. St. Rep. 537; Leary v. Boston & Albany Railroad, 139 Mass. 580, 2 N. E. 115, 52 Am. Rep. 733; Buzzell v. Laconia Mfg. Co., 48 Me. 113, 77 Am. Dec. 212; Mundle v. Mfg. Co., 86 Me. 400, 407, 30 Atl. 16.
This clear distinction between assumption of risk and contributory negligence has been repeatedly announced and constantly maintained in the federal courts and in most of the courts of the states. The law upon this subject which controls this case and all cases of this character in the federal courts is stated in Washington, etc., R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235, in the quotation which follows, and, so far as our investigation has extended, the rules of law thus announced have never been disregarded' or modified by that court in any subsequent decision:
“Neither individuals nor corporations are bound, as employers, to insure tbe absolute safety of tbe machinery or mechanical appliances which they provide for the use of their employes. Nor are they bound to supply the best and safest or newest of those appliances, for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employé or servant. But if the employé knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And further, if the employé himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for ‘the injury, although it was occasioned by the defect of the machinery, through the negligence of the employer.”
Here the two defenses of assumption of risk and contributory negligence are separately stated, and the first failed because the servant “did not know that the belt in which he was caught had been recently and perhaps imperfectly repaired,” and “was wholly unaware of the danger attendant upon putting on the belt by hand,” while the defense of contributory negligence failed because the defendant failed to satisfy the jury that the servant was not exercising ordinary care ^in placing the belt upon the pulley.
In Union Pacific Ry. Co. v. O’Brien, 161 U. S. 451, 454, 456, 16 Sup. Ct. 618, 40 L. Ed. 766, the Supreme Court sustained a refusal to submit an instruction to the jury upon the express ground that it confused these two distinct defenses, assumption of risk and contributory negligence. Its words were:
“The second instruction was properly refused because it confused two distinct propositions, that relating to the risks assumed by an employé in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances.”
In Choctaw, Oklahoma & Gulf Railroad Co. v. McDade, 24 Sup. Ct. 24, 48 L. Ed. -, a case in which the opinion was filed November 2, 1903, the Supreme Court says:
“The question of assumption of risk is quite apart from that of contributory negligence. The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer’s negligence in per*504 forming such dutíes. The employé is not obliged to pass judgment upon the employer’s methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. The rule is subject to the exception that where a defect is known to the employé, or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation. In other words, if he knows of a defect, or it is so plainly observable that he may be presumed to know of it, and continues in the master’s employ without objection, he is taken to have made his election to continue in the employ of the master notwithstanding the defect, and in such case cannot recover.”
In Peirce v. Clavin, 82 Fed. 550, 553, 27 C. C. A. 227, 230, the Circuit Court of Appeals of the Seventh Circuit, in an opinion delivered by Judge Jenkins, said:
“The court below ignored wholly the doctrine of assumption of risk, and refused the instructions requested in that behalf, erroneously supposing that absolute knowledge of the defect which existed during the entire time of his service could not, under any circumstances, amount to an assumption of risk, but merely cast upon him greater care in the use, or in avoiding danger from the defective appliance. This is manifest error, for which we think the judgment must be reversed. The doctrine of assumption of risk is not to be confounded with the doctrine of contributory negligence; for, where the former doctrine is applicable, the servant may exercise the greatest care, and yet be precluded from recovery for an injury in the performance of his service, because fhe risk was assumed. Miner v. Railroad Co., 153 Mass. 398, 26 N. E. 994.”
To the same effect is the opinion of the Circuit Court of Appeals of the Sixth Circuit in Narramore v. Cleveland, etc., Ry. Co., 96 Fed. 298, 301, 304, 305, 37 C. C. A. 499, 501, 504, 505, where Judge Taft, delivering the opinion of that court, said:
“Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself, but the correct statement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed expressly or impliedly to assume. The master is not, therefore, guilty of actionable negligence towards the servant.” Pages 501, 502, 37 C. C. A., and page 301, 96 Fed.
After discussing various cases in which servants had entered or continued in the employment of their masters after discovering defects in machinery, he said:
“Assumption of risk is in such cases the acquiescence of an ordinarily prudent man in a known danger, the risk of which he assumes by contract. Contributory negligence in such cases is that action or nonaction in disregard of personal safety by one who, treating the known danger as a condition, acts with respect to it without due care of its consequences.” Page 504, 37 C. C. A., and page 304, 96 Fed.
And again:
“Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra*505 compensation, one who assumes the risk cannot be said to be guilty of contributory negligence if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences. One who does not use such care, and who, by reason thereof, suffers injury, is guilty of contributory negligence, and cannot recover, because he, and not the master, causes the injury,' or because they jointly cause it.” Page 505, 37 C. 0. A., and page 304, 96 Fed.
In Miner v. Railroad Co., 153 Mass. 398, 402, 26 N. E. 994, the Supreme Judicial Court of that commonwealth held that where the plaintiff was guilty of no contributory negligence he might be barred from recovery by assumption of the risk. It said:
“Independently of any relation of master and servant, there may be a voluntary assumption of the risk of a known danger, which will debar one from recovering compensation in case of injury to person or property therefrom, even though he was in the exercise of due care. In other words, it may be consistent with due care to incur a known danger voluntarily and deliberately; and this may be so when the danger arises from the known or apprehended neglect or carelessness of others.”
In Hesse v. Railroad Co., 58 Ohio St. 167, 169, 50 N. E. 354, 355, the Supreme Court of that state said:
“Acquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed may yet use the utmost care to avert the dangers which they threaten.”
The unavoidable logical deduction from the principles and deci sions to which we have adverted is that assumption of risk and contributory negligence are distinct and independent defenses, that the former rests in contract and upon the maxim, Volenti non fit injuria, and is not conditioned or limited by the probability or improbability, the imminence or the remoteness, of the danger from the risk assumed, or by the existence or by the absence of contributory or other negligence on the part of the party who undertakes to assume the risk, while contributory negligence is founded upon an absence of ordinary care which causes or contributes to the injury which is the basis of the suit. This conclusion is fortified by the numberless decisions in which the defense of assumption of risk has been sustained in which the plaintiffs were not guilty of contributory negligence, cases in which prudent persons in the exercise of ordinary care would have assumed and ordinarily did assume the very risks which were the subjects of the actions. Kohn v. McNulta, 147 U. S. 238, 241, 13 Sup. Ct. 298, 37 L. Ed. 150; Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Tuttle v. Detroit & Milwaukee Ry. Co., 122 U. S. 189, 194, 7 Sup. Ct. 1166, 30 L. Ed. 1114; Gibson v. Erie Ry. Co., 63 N. Y. 449, 20 Am. Rep. 552; Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; Buckley v. Mfg. Co., 113 N. Y. 540, 21 N. E. 717; Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798; Berger v. Railway Co., 39 Minn. 78, 38 N. W. 814; Southern Pac. Co. v. Seley, 152 U. S. 145, 155, 14 Sup. Ct. 530, 38 L. Ed. 391; Appel v. Buffalo, etc., R. Co., 111 N. Y. 550, 19 N. E. 93; Gillin v. Railroad Co., 93 Me. 80, 86, 44 Atl. 361; Wood v. Locke, 147 Mass. 604, 18 N. E. 578; Mayes, Adm’r, v. Chicago, R. I. & P. Ry. Co., 63 Iowa, 563,
A servant by entering or continuing in the employment of a master without complaint assumes the risks and dangers of the employment which he knows and appreciates, and also those which an ordinarily prudent person of his capacity and intelligence would have known and appreciated in his situation.
A servant who knows, or who by the exercise of reasonable prudence and care would have known, of the risks and dangers which arose during his service, but who continues in the employment without complaint, assumes those risks and dangers to the same extent that he undertakes to assume those existing when he enters upon the employment.
Among the risks and dangers thus assumed are those which arise from the failure of the master to completely discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and reasonably safe appliances and tools to use.
Assumption of risk and contributory negligence are separate and1 distinct defenses. The one is based on contract, the other on tort. The former is not conditioned or limited by the existence of the latter, and is alike available whether the risk assumed is great or small, and whether the danger from it is imminent and certain or remote and improbable.
The court below fell into an error when it instructed the jury that although the plaintiff continued in the employment of the defendant by the side of the visible unguarded gearing with full knowledge that the cogs which injured her were uncovered, still she could not be held to have assumed the risk of working by their side unless the danger from them was so imminent that persons of ordinary prudence would have declined to incur it under similar circumstances. Choctaw, Oklahoma & Gulf R. R. v. McDade, 24 Sup. Ct. 24, 48 L. Ed. -(opinion filed November 2, 1903).
There is another alleged error specified. A preliminary question for the judge always arises at the close of the evidence before a case can be submitted to the jury.. That question is, not whether or not there is any evidence, but whether or not there is any substantial evidence upon which a jury can properly render a verdict in favor of the party who produces it. Cole v. German Sav. & Loan Society (C. C. A.) 124 Fed. 113, 122; Brady v. Chicago & G. W. Ry. Co., 114 Fed. 100, 105, 52 C. C. A. 48, 52, 53, 57 L. R. A. 712; Railway Co. v. Belliwith, 83 Fed. 437, 441, 28 C. C. A. 358, 362; Association v. Wilson, 100 Fed. 368, 370, 40 C. C. A. 411, 413; Commissioners v. Clark, 94 U. S. 278, 284, 24 L. Ed. 59; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 733, 8 Sup. Ct. 266, 31 L. Ed. 287; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Laclede Fire Brick Mfg. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 60 Fed. 351, 354, 9 C. C. A. 1, 4;
The factory act of Missouri (2 Rev. St. 1899, § 6433) does not abolish the defense of assumption of risk in cases which fall under its provisions. In this respect it differs from the act of the Congress of the United States (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), which requires cars engaged in interstate commerce to be equipped with automatic couplers. Congress in that act expressly provided that in case the railroad companies failed to comply with its terms the employes should not be deemed to have assumed the risk thereby occasioned. Act March 2, 1893, c. 196, § 8, p. 532, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3176]. The Legislature of Missouri had power to apply a similar provision to cases in which employers failed to keep their machinery safely and securely guarded, but they did not do so. The negligence of the master to safely and securely guard his machinery in accordance with the provisions of the law of Missouri is of the same nature as his negligence in providing a reasonably safe floor or ax or other tool or appliance, and there is no reason why an action for a resulting injury should not be subject to the defense of assumption of risk in the one case to the same extent as in the other. And so it is under the law here under consideration. The factory act of Missouri (2 Rev. St. 1899, § 6433) does not abolish the defense of assumption of risk in cases in which the absence of the guards and the risks and dangers from the gearing and machinery are obvious or well known to the employé and he enters or continues in the service without complaint. O’Maley v. South Boston Gas Light Co., 158 Mass. 135, 138, 139, 32 N. E. 1119, 47 L. R. A. 161; Lore v. American Mfg. Co., 160 Mo. 608, 624, 61 S. W. 678; White v. Wittemann Lith. Co., 131 N. Y. 631, 635, 30 N. E. 236; Higgins Carpet Co. v. O’Keefe, 51 U. S. App. 74, 80, 79 Fed. 900, 902, 25 C. C. A. 220, 222; Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367; Graves v. Brewer, 4 App. Div. 327, 38 N. Y. Supp. 566.
The question here, therefore, is: Was there any substantial evidence at the close of the trial below which would have warranted a finding and verdict.by the jury that the plaintiff did not voluntarily assume the risk of the uncovered gearing? Of course, 'the question whether or not a servant has willingly assumed a risk of the service is, like all questions of fact, for the jury when the evidence is conflicting or when the deductions from it are doubtful, and, as this is usually the case in the trial of this issue, as in the trial of all other issues of fact, the general rule becomes that this question is ordinarily for the jury.
There are many cases in which the danger from the condition of the place or of the appliances is uncertain or recondite, as in Ford v. Fitchburg R. Co., 110 Mass. 240-243, 261, 14 Am. Rep. 598, where an explosion which could not have been reasonably anticipated resulted from a defect in a boiler which was known to the servant, and from such cases the rule arises that mere knowledge of the defect in the place or in the appliances does not necessarily establish the fact as a matter of law that the employé assumed the risk which the defect entailed.
There are other cases, like Coombs v. New Bedford Cordage Co.,
The cases of Northern Pacific R. Co. v. Mares, 123 U. S. 717, 720, 8 Sup. Ct. 321, 31 L. Ed. 296; Hough v. Ry. Co., 100 U. S. 224, 225, 25 L. Ed, 612; Kane v. Northern Central R. Co., 128 U. S. 91, 94, 9 Sup. Ct. 16, 32 L. Ed. 339; Snow v. Railroad Co., 90 Mass. 441, 447, 448; Francis v. Kansas City, etc., R. Co., 127 Mo. 658, 28 S. W. 842, 30 S. W. 129; Thorpe v. Missouri Pac. R. Co., 89 Mo. 650, 2 S. W. 3, 58 Am. Rep. 120; and O’Mellia v. Kansas City, etc., R. Co., 115 Mo. 205, 21 S. W. 503 — to which our attention has been called, are not in point upon the question now under consideration, because the discussions and decisions in these cases are either devoted to the defense of contributory negligence exclusively, or they so confuse the two separate defenses of assumption of risk and contributory negligence as to be without persuasive force upon the issue now in hand. Thus in Kane v. Northern Central R. Co., 128 U. S. 91, 94, 9 Sup. Ct. 16, 32 L. Ed. 339, there was no defense of assumption of risk in the case. That defense had been stricken down by a complaint of the defect which the brakeman had made to his conductor. His freight train had started at midnight. When it had gone 20 miles he discovered that a step was missing from one of the cars, and called the conductor’s attention to it. The latter promised to drop the car at the coalyard or junction beyond them if upon examining his manifests he found it did not contain perishable freight. About 4 or 5 o’clock in the morning, and before they had reached the coalyard, the brakeman started to go along the train to his post, and in letting himself down from the car whose step was missing he forgot that fact and fell. The Supreme Court well said, “An employe upon a railroad train, likely to meet other trains, owes it to the public as well as to his employer not to abandon his post unnecessarily,” and that the danger was not so imminent as to subject him. to the charge of recklessness in remaining at his post after he had complained and received the conductor’s promise. The plaintiff in the case at bar was not engaged in a quasi public employment, and owed the public no duty which required her to con
Now, while it is true, as the decisions to which we have adverted declare, that mere knowledge of a defect by a servant who continues in the employment does not necessarily establish the fact as a matter of law that he has assumed the risk it entails, and while it is also true that he does not assume such a risk unless an ordinarily prudent person of his capacity in his situation would have appreciated the danger from it, it is equally true that a servant who enters or continues in the employment of his master in the presence of visible or obvious defects and plain or apparent dangers from them, which he knows or appreciates, or which an employé of his intelligence and capacity would by the exercise of ordinary care and prudence know and appreciate, assumes the risk of these dangers, and he cannot be heard to say that he did not appreciate them, and when the uncontradicted evidence establishes these facts no case arises in his favor, no question remains for the jury, and it is the duty of the court to peremptorily instruct them to return a verdict for the master. This is a familiar and well-established rule of law. It is sustained and illustrated by the following cases, in which courts have held that it was the duty of the trial court to direct a verdict for the employer: Higgins Carpet Co. v. O’Keefe, 51 U. S. App. 74, 80, 79 Fed. 900, 902, 25 C. C. A. 220, 222, in which a boy 15 years of age who had been at work in a room with a picking machine was assigned to feed it, and permitted his hand to slip into the exposed cogs, which the factory act of New York required the master to keep covered; Buckley v. Mfg. Co., 113 N. Y. 540, 21 N. E. 717, wherein a boy 12 years old slipped and threw his fingers into exposed cogs; Engine Works v. Randall, 100 Ind. 293, in which a boy 19 years of age permitted his hands to engage with revolving cogs; Berger v. Ry. Co., 39 Minn. 78, 38 N. W. 814, wherein a boy in feeding rollers
The record in the case at bar has been searched in vain for any fact or testimony adequate to withdraw it from the principles of law established by this strong current of decision, or to distinguish it from the cases which have been cited to illustrate the rule. This plaintiff was a young woman 20 years of age. The presumption is that she was possessed of ordinary intelligence and ability. She had' been at work in factories for more than a year, and in the establishment of the defendant for more than six months. She knew that the gearing which injured her had been covered before Christmas, and that it was uncovered from that time until she was injured on February 13, 1902. She had worked at this machine by the side of the exposed mashing cogs from 10 to 15 minutes every day during the six weeks that they remained uncovered. She testified that she did not know that it was dangerous to run the gearing uncovered, but she knew the action of the lever, the greasy condition of its handle, its proximity to the mashing cogs, and she could no more have failed to know and to appreciate that the revolving cogs would crush her hand if she permitted it to slip between them than she could have failed to appreciate that boiling water would scald or fire would burn. One cannot be heard to say that he does not know or appreciate a danger whose knowledge and appreciation are so unavoidable to a person of ordinary intelligence and prudence in a like situation. King v. Morgan, 48 C. C. A. 507, 509, 109 Fed. 446, 448; Moon Anchor Consol. Gold Mines v. Hopkins, 49 C. C. A. 347, 353, 111 Fed. 298, 304; Sullivan v. Simplex Electrical Co., 178 Mass. 35, 39, 59 N. E. 645; Buckley v. Mfg. Co., 113 N. Y. 540, 21 N. E. 717. The machinery, the cogs, the slippery lever, and their relation to each other, were open, visible, known. There was nothing recondite, imperceptible, uncertain, in the danger impending from them. It was plain and certain that if the employé permitted her hand to slip between the revolving cogs that hand would be injured. The defect of the unguarded gearing was obvious, the danger from it was apparent, and, without a disregard of the rules to which we have adverted and the decisions of the Supreme Court and of the other courts of the country to which reference Iras been made, there is no escape from the conclusion that the evidence in this case established without contradiction or dispute the facts that the plaintiff, by continuing in her employment without complaint, in the presence of an obvious and known defect and of a plain and apparent danger,
Dissenting Opinion
(dissenting). I do not concur in the foregoing opinion. The laws of Missouri (Rev. St. 1899, § 6433) required the defendant company to keep the gearing which occasioned the plaintiff’s injury “safely and securely guarded when possible” for the protection of its employés. This statute was enacted in pursuance of a sound public policy; that is to say, to insure, as far as possible, the safety of the many thousand artisans and laborers who are daily employed in mills and factories throughout the state, and while so employed are exposed to unnecessary risks of getting hurt if belting, gearing, drums, etc., in the establishments where they work are left uncovered when so situated that they may be covered readily. The act was. inspired by the same motives which induced the Congress of the United States (Act March 2, 1893, c. 196,' 27 Stat. 531 fU. S. Comp. St. 1901, p. 3174]) to require cars to be equipped with automatic coupling appliances when it was discovered that hundreds of brakemen were annually killed or made cripples for life by the use of the old-fashioned couplers that do not 'couple by impact. A wise public policy demands that as far as possible human life shall be preserved, and that there shall not be in any community a large class of persons who are unable to earn a livelihood because they have become maimed and crippled through exposure to unnecessary risks. The statute in question is not only a wise measure of legislation, but was prompted by a humane spirit. For these reasons it should not be so applied or construed by the courts as to defeat the objects which the Legislature had in view, nor in such a way as to render it less efficient than it was intended to be in the promotion of such objects.
It is conceded that the defendant company neglected to perform its statutory duty; it left the gearing, which inflicted the injury, uncovered for several weeks, although it could have been covered easily, and was covered, when the plaintiff below entered its service; and as the result of such neglect the plaintiff below, a girl of 20, who had scarcely reached years of discretion, sustained a severe and painful injury. The majority of the judges of this court hold that she cannot recover because,-by working at the machine for 10 or 15 minutes each day for about six weeks after the covering of the gearing had been removed, she consciously entered into a contract with the defendant company, although her wages were not increased, that she would assume the risk of getting hurt by the uncovered gearing, which she did not assume when she entered its service, and that she would absolve it from all liability. They hold, further, that although the plaintiff may not in fact have appreciated or foreseen the risk and danger which she incurred by working at the machine with the gearing uncovered, yet, because in their opinion a person of her age and intelligence ought to have appreciated it, they will infer that, with a full appreciation of the risk, she voluntarily entered into
I do not regard the question whether “contributory negligence" and “assumption of risk,” considered as defenses to an action for personal injuries, are identical or are different defenses as of much practical importance. That is rather a question for the schoolmen. It matters very little whether we say of a servant who has used a defective tool or appliance, which the master has supplied, with a full knowledge of the defect and a full appreciation of the danger incident to its use, that such servant is as much at fault as the master and is guilty of contributory negligence, or whether we say that he has agreed to assume the risk and absolve the master from liability. The result, as respects the master’s liability, is the same in whatever way we may choose to designate the defense.
The other questions, however, that are discussed in the opinion, and are decided in the manner above stated, are of great moment, affecting, as they do, the rights of thousands of people who are daily engaged in service and are liable to sustain injuries because reasonable precautions are not taken, by those who employ them, to prevent their being injured. In view of the motives which usually influence the conduct of men, I think it is certain that employers will be'less careful in inspecting tools and machinery which they provide for their employés, less prompt in remedying defects therein when they are discovered, and less mindful of the discharge of the duties imposed on them by such a statute as the one involved in the case at bar, and other police regulations of that sort which may be made in the future, if the doctrine is established that by using an implement or machine having visible defects, although the risk of injury is not" overshadowing and imminent, a servant thereby assumes the risk and agrees to hold the master blameless if he is hurt. The other doctrine, that the servant cannot rely upon the master to discharge
On grounds of public policy, therefore, and to insure the faithful1 discharge by employers of the duty which the law devolves on them, and to prevent them from forcing their employés to assume risks which they of right ought to assume, the law ought to be as it was declared by the learned trial judge, that the plaintiff was not debarred from recovering compensation for the injuries which she
In the case of Northern Pacific Railroad Co. v. Mares, 123 U. S. 710, 717, 720, 8 Sup. Ct. 321, 31 L. Ed. 296, a brakeman in the employ of a railroad company had been injured in consequence of the negligence of the company in retaining in its service an engineer who was known to be careless and negligent. On the trial of the case the defendant company asked the court to instruct the jury that “if the plaintiff knew or had the opportunity of knowing, before his fall from the car in question, that Bassett [the engineer] was an unfit or unsafe man to run the engine in question, in that case it was the plaintiff’s duty to refuse to work with him any longer, and his failure to do so would prevent him from recovering.” The trial court refused this instruction, and the Supreme Court of the United States, speaking by Mr. Justice Matthews, said that the trial judge was clearly right in refusing the instruction; that the duty of the plaintiff under the circumstances was not to be determined by the single fact of his knowledge of the danger he incurred by continuing to serve with a coemployé known by him to be an unfit and incompetent person; that it was enough for the court to say, as it did, that a failure of the plaintiff to refuse to work, in view of the knowledge which he had of the engineer’s incompetency, might be negligence on his part, and that it was for the jury to say, from all the attending circumstances, whether his failure to do so was in fact contributory negligence.
In the case of Kane v. Northern Central Railway, 128 U. S. 91, 94, 9 Sup. Ct. 16, 32 L. Ed. 339, the plaintiff, Kane, had been injured by reason of the fact that a step was missing from one of the cars of the train upon which he was working, which rendered the car defective. It appeared that the plaintiff became aware of the defect in the car some time before he was injured, and that after such knowledge he continued in the discharge of his regular duties. The Supreme Court, speaking by Mr. Justice Harlan, declared that it could' not be said that the plaintiff was guilty of contributory negligence in staying upon the train in the capacity of a brakeman after he had observed that a step was missing from one of the cars; that an employe upon a railroad owes it to the public as well as to his employer not to abandon his post unnecessarily; and that the danger arising from the defective car was not so imminent as to subject him to the charge of recklessness in remaining at his post under the circumstances disclosed in that case; citing, in support of his statement that the plaintiff was not bound to quit his employer’s service unless the risk of getting hurt was imminent, the previous decision of the Supreme Court of the United States in Hough v. Railroad Company, 100 U. S. 213, 224, 225, 25 L. Ed. 612.
In the case of Patterson v. Pittsburgh & Connellsville Railroad Co., 76 Pa. 389, 393, 394, 18 Am. Rep. 412, it was held by the Supreme Court of Pennsylvania that, if the instrumentality by which a servant' is required to perform his duty is so obviously and imminently dangerous that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damage. In such a case, the court said:
“The law adjudges the servant guilty of concurrent negligence, and will refuse him that aid to which he otherwise would be entitled. But where the servant, in obedience to the requirement of the master, incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the rule is different. In such case the master is liable for a resulting accident.”
In the case of Ford v. Fitchburg Railroad Co., 110 Mass. 240, 14 Am. Rep. 598, it was held that an engineer was not disabled from recovering against his employer, he having continued to use an engine with knowledge that it was not in good working order and that it was in some respects defective, although he sustained injuries in consequence of using it notwithstanding the defects. The court remarked, in substance, that the fact that he had run the engine over the road with knowledge that it was in a defective condition was not conclusive evidence of want of due care on his part, and it was not even suggested that because he had done so he had assumed the risk of getting hurt.
In the case of Lee v. Smart, 45 Neb. 318, 63 N. W. 940, it was held that where a servant, in obedience to the requirements of his master, incurs the risk of machinery or appliances which, although dangerous, are not of such a character that they may not be safely used by the exercise of reasonable skill and caution, he does not, as a matter of law, assume the risk of injury from accident resulting from the master’s negligence; citing Sioux City & Pacific Railroad Co. v.
In the case of Parker v. South Carolina & Ga. Railroad, 48 S. C. 364, 26 S. E. 669, 673, 676, the court held that an instruction was properly refused which declared “that an employé who works defective machinery, knowing the defects, assumes the risk, and if injured from such defect cannot recover, even if his employer knows it”; while it approved of an instruction, which was given by the trial court, to the effect that if, after working with machinery, a servant finds that it is unsound or defective to such an extent that a prudent person would not use it, then he would assume the risk of injury by using it under such circumstances.
Moreover, in Buswell on Personal Injuries, at section 207, the learned author says, with respect to defects in tools, machinery, and appliances which the servant has an opportunity to detect, that:
“The authorities are not agreed upon the question whether the employé assumes absolutely the risk of injury from apparent defects in machinery or appliances which are caused by the negligence of the master; but it is believed that the weight of modern authority is in favor of the rule that such injuries are not to be included in the ordinary risks of the employment, and that this rule is justified by sound reason. It is to be considered that the contract between the master and an employé is reciprocal, the obligation on the part of the master being to furnish suitable and safe means for doing the work; and this obligation, independent of any contract, rests as well on the duty which every member of the community is under, not to expose another to unnecessary danger.”
Further on in the same section he remarks:
“It would seem to be unreasonable to say that the employé on his part contracts to take the risks of injury caused by the breach of the reciprocal contract on the part of the master, or that injuries caused by defects in the means furnished to the servant to do his work are in any just sense incidental to the employment, since the law justifies the servant in assuming that proper and sufficient appliances will be furnished him. It is apprehended, therefore, although there is much confusion in the expression of the rules on this subject in some of the cases, that the view of the law is to be accepted which holds that the whole question in such cases is whether or not the employé has been guilty of contributory negligence in continuing in his employment after he has discovered the existence of the defect.”
And in Shearman & Redfield on the law of Negligence, at section 211, it is said:
“The true rule, as nearly as it can be stated, is that a servant can recover for an injury suffered from defects du,e to the master’s fault of which he had notice, if, under all the circumstances, a servant of ordinary prudence acting with such prudence would under similar conditions have continued the same work under the same risk; but not otherwise.”
Relative to the decision of this court in King v. Morgan, 48 C. C. A. 507, 109 Fed. 446, to which some allusion is made in the majority opinion, this may be said, and the same remark may be made of the decision in Southern Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391, that these cases were correctly decided upon the ground that the defective appliances, to wit, a tamping rod in one case, and an unblocked frog in the other, which occasioned the injuries complained of, were not only in use when the respective plaintiffs in those cases entered the employer’s service, but they were implements which at that time were in general use by other persons and corporations engaged in a like business, as the plaintiffs well
The defendant company having failed to perform its statutory duty of keeping the gearing of the forming machine covered, and the plaintiff below having been injured by reason of such neglect, I think, for the reasons already stated, that the trial court properly advised the jury that she might recover, unless the risk which was incurred by working in proximity to the uncovered gearing was so great and imminent that a prudent person of the plaintiff’s age and in her situation would not have incurred it. In the case of Thomas v. Quartermaine, 18 Q. B. D. 685, 696, where the maxim, Volenti non fit injuria, seems to have been first prominently applied'to an action for personal injuries, Bowen, E. J., who wrote the majority opinion of the Court of Appeal, strongly intimates that the maxim in question cannot be invoked by an employer as a defense when, as in this case, it appears that he has neglected the performance of a statutory duty, in consequence whereof one of his servants has sustained injury. His language is as follows:
“The maxim, be it observed, is not ‘seienti’ non fit injuria, but ‘volenti.’ It is plain that mere knowledge may not be a conclusive defense. There may be a perception of the existence of the danger without comprehension of the risk, as where the workman is of imperfect intelligence, or, though he knows the danger, remains imperfectly informed as to its nature and extent. There may again be concurrent facts which justify the inquiry whether the risk, though known, was encountered voluntarily. The injured person may have had a statutory right to protection, as where an act of Parliament requires machinery to be fenced.”
I am also of opinion that even on the theory on which the majority .decision proceeds, namely, that where by the negligence of the master his servant has been exposed to a risk of injury that was neither great nor imminent, he may, by continuing at work with knowledge of the danger, be held to have consented or agreed to assume it, the decision of my associates is erroneous in holding as a matter of law, on the facts and circumstances of the case, that the plaintiff did voluntarily agree to assume the risk to which she was exposed by the admitted fault of the master, and in withdrawing that issue from the jury. When the decision in Thomas v. Quartermaine, supra, was first announced, it was assumed by many that as the result of that decision, when an employer succeeded, in a personal injury case, in showing that his servant, before being hurt, had used the defective tool or appliance which occasioned the injury, with knowledge of the defect, .or had shown that he had worked in an unsafe place with knowledge of its insecurity and had on that account sustained injury, he was immediately absolved from all liability for his neglect, and that the courts must perforce declare, as a matter of law, that the servant had agreed to assume the risk. It was very soon discovered, however, by ■the English judges, that this doctrine was exceedingly unjust to employes, and that it would enable employers, to shift the responsibility
“But does the maxim, Volenti non fit injuria, go this length, that the mere fact of the workman knowing that a thing is dangerous, and yet using it, is conclusive to show that he voluntarily incurred the risk? The answer to that depends, so far as this court is concerned, upon whether or not Thomas v. Quartermaine has so decided. * * * Taking the whole of that judgment together, it seems to me to amount to this: that mere knowledge of the danger will not do; there must he an assent on the part of the workman to accept the risk, with a full appreciation of its extent, to bring the workman within the maxim, Volenti non fit injuria. If so, that is a question of fact. Here the judge of the court below has come to the conclusion that the moment it appeared that the plaintiff knew and appreciated the danger, and did not at once quit the defendant’s employ, he came within the maxim, and was therefore, upon the authority of Thomas v. Quartermaine, disentitled to recover. He did not bring his mind to bear upon the motives which induced the plaintiff to act as he did, whether he relied upon the foreman’s statement that the employer would be responsible in case of an accident, or whether he was influenced by the fear of being thrown out of employ if he disobeyed the foreman’s orders. All that was for a jury, and the judge ought to have applied his mind to it.”
In that case it was accordingly held that the servant might recover from his master, who had provided him with a vicious horse to be driven and used in the performance of his daily duties, although it appeared that the servant had continued to use the vicious animal long after he had become fully conscious of the fact that he was vicious and unfit to be used. At all events it was decided that the lower court, upon this state of facts, was not authorized to say, as a matter of law, that he had assumed the risk and could not recover.
To the same effect was the decision in Thrussell v. Handyside & Company, 20 Q. B. D. 359, 364, where it was said by the court, inter alia:
“It cannot be said, where a man is lawfully engaged in work and is in danger of dismissal if he leaves his work, that he willfully incurs any risk which he may encounter in the course of such work, and here the plaintiff had asked the defendant’s men to take care * * *. If the plaintiff could have gone away from the dangerous place without incurring the risk of losing his means of livelihood, the case might have been different; but he was obliged to be there; his poverty, not his will, consented to incur the danger.”
And in a still later case, Smith v. Baker, 1 Appeal Cases, L. R. (1891) 325, which was decided by the House of Lords, the highest judicial authority in England, the doctrine announced in Yarmouth v. France, supra, was reaffirmed. In that case it appeared that the plaintiff was employed to drill holes in a rock. A crane was set up in close proximity to the place where he worked, so that the arm of the crane, which was used to lift stones, swung the same over the plaintiff’s head, and he was injured by a falling stone. The doctrine was invoked in that case that the danger incident to the situation where the plaintiff was put at work, was obvious, and that by continuing to work in the presence of visible dangers the plaintiff had agreed to as
“When, as is commonly the case, his acceptance or nonacceptanee of the risk is left' to implication, the workman cannot reasonably be held to have undertaken it, unless he knew of its existence and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work with such knowledge and appreciation will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk and the workman’s connection with it, as well as upon other considerations which must vary according to the circumstances of each case.”
Farther on in his opinion the same learned judge observed:
“In the circumstances of this case, the question whether he [the plaintiff] has accepted the risk is one of fact; there is no arbitrary rule of law which decides it.”
Lord Herschell observed (vide p. 362):
“Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer’s negligence, and the creation or enhancement of danger thereby engendered. If, then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service it is true to say that he is willing that his employer' should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as wrong, and I know of no principle of law which compels the conclusion that the maxim, ‘Volenti non fit injuria,’ becomes applicable.”
Farther on in his opinion, when discussing1 the decision in Thomas v. Quartermaine, the same judge observed that if it was assumed in that case—
“That there was a breach of duty on the part of the employer in not having the vats fenced, * * * it seems to me that it must have been a question of fact, and not of law, whether the plaintiff undertook the employment with an appreciation of the risk which arose on the occasion in question from the particular nature of the work which he had to perform. If the effect of the judgment be that the mere, fact that the plaintiff, after he knew the condition of the premises, continued to work and did not quit his employment, afforded his employer an answer to the action, even though a breach of duty on his part was made out, I am unable, for the reasons I have given, to concur in the decision.”
The same view tof the question under discussion has been taken in this country. For example, in Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep. 537, it appeared that an employe in a mill, who had worked there for 13 years and was familiar with all of the surroundings, in attempting to go down some steps which were covered with ice, fell and was seriously injured. The ice upon the steps was caused by exhaust steam from an engine which was run by the defendant company, which fell upon
See, also, to the same effect, Wuotilla v. Duluth Dumber Co., 37 Minn. 153, 33 N. W. 551, where it was held that the fact that a servant knows of the defective condition of the instrumentalities with which he works does not necessarily charge him with contributory negligence or the assumption of the risks growing out of such defects, and that it is the right of a jury to determine these questions. See, also, Pennsylvania R. Co. v. Jones (C. C. A.) 123 Fed. 753, 756; Thorpe v. Missouri Pacific Railroad Co., 89 Mo. 650, 662, 663, 2 S. W. 3, 58 Am. Rep. 120; Hamilton v. Rich Hill Mining Company, 108 Mo. 364, 375, 376, 18 S. W. 977; Myers v. Hudson Iron Company, 150 Mass. 125, 134, 22 N. E. 631, 15 Am. St. Rep. 176; Ferren v. Old Colony Railroad Co., 143 Mass. 197, 200, 9 N. E. 608. In this connection it is worthy of remark that in England the last vestige of the doctrine that a servant who continues at work with knowledge and appreciation of a defect in tools and machinery thereby impliedly agrees with his master to assume the risk of getting hurt was abolished by an act of Parliament passed August 6, 1897 (vide St. 60 & 61 Viet. c. 37, Chitty’s English Statutes, Supplement 1895-1901, vol. 14), which makes the master liable to his servant for any injury which the latter sustains in consequence of the master’s negligence in providing tools and appliances, unless “it is proved that the injury to the workman is attributable to the serious and willful misconduct of the workman”; thereby setting the seal of condemnation on the entire doctrine of assumption of risk as theretofore promulgated, or as it was understood to have been promulgated in Thomas v. Quartermaine, 18 Q. B. D. 685.
I do not deny that there are cases where some courts have held, that the risk encountered by a servant in using a defective implement' or appliance was so obvious that he must have appreciated it fully, and for that reason have declared that he assumed it; but I maintain that in case of a clear omission of duty by an employer which has occasioned an injury, where an inference is to be drawn from facts and circumstances that a servant appreciated the risk incident thereto and voluntarily agreed to assume it, the inference is essentially one of
This opinion has already been extended to unusual length. It is of greater length than a dissenting opinion in a personal injury case, or a majority opinion for that matter, ought to be. But the questions involved are important and will affect the rights of very many litigants, and on that account I desire to place on record a plain statement of the reasons why I dissent from doctrines which seem to me to have been formulated with an eye mainly to the protection of employers and with too little regard for the situation and rights of employés.