*1 Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge. William H. Schuster, a United States Government inspector, meat brought this Pickett, Judge, Circuit dissented. against action appellant, Swift and Com-

pany, to recover damages personal juries as a alleged result of negligence on company’s part. complaint al- leged that company engaged business slaughtering and meat packing Utah; that at the time in negligently allowed to exist and negligent- ly maintained fourth floor of the building main- inspection taining a meat platform for approximately twenty-two workers wet, slippery above a greasy slaughter maintaining without for as- cending platform; that on the occasion in plaintiff, engaged while in his duties as meat in- spector for the Department United States Agriculture, stepped down from the wet, greasy and, floor, slipped catching fell him- self,. back, twisted and wrenched his sus- permanent injury, taining severe sought damages. for all of which up set two affirmative de- answer contribu- fenses— defense, tory A negligence. third volenti injected into the case ultimately case was tried and and the sub- mitted to the on all three defenses. at the evidence adduced trial was only *2 61G testimony completed inspection At the conclu- his for day of Schuster. testimony, appellant for

sion of his moved stepped platform down on from the a on dismissal and for directed verdict slipped end he East to the where grounds plaintiff to failed himself, attempting almost fell. In to catch prove negligence on the of the de- back, injury twisted his in the resulting fendant; guilty was of con- complained litigation. of in this tributory assumption negligence; if appropriate The trial court under invoked, recovery be was cannot appeal challenged structions not on submit- precluded by application of the maxim jury question primary ted to the injuria. volenti non fit The motion appellant’s part, on as well as for denied. The returned verdict questions, con- judgment was entered thereon. tributory negligence and volenti non fit by appeal only question presented injuria as affecting right of re- Schuster’s denying is whether the court erred covery, company in event the was found motion for dismissal and a di- Swift’s primary negligence. rected verdict. primary question We think the from which The uncontradicted evidence appellant’s part properly on sought is as follows. the answer must be jury. submitted to the Schuster was a employed the Federal Schuster premises business invitee on the and as inspector a meat and was -Government as y duty such the him compan owed to appellant’s plant Ogden, at assigned to keep and maintain the in a safe required duties his constant Utah. His very opera condition.1 nature of the plant presence killing of the tions caused fats and oils accumulate to slaughtered ani- the carcasses where washing away on the floor them into by machinery conveyed for in- mals were gutter edge of the floor to be past Schuster platform on which spection away required kept carried the floor twenty- to platform about stood. slippery wet. This made for conditions of steps no high. There were three slipping the floor and made thereon haz top platform leading to the ard, walking both in over and in accident, steps the floor such but were time of the stepping platform twenty-three inch thereafter. Schuster had on installed high es again therefrom to floor. premises in his line em- or about these conditions, appellant’s Under these step- ployment occasions and had on reasonably prudent per to what a do platform ped down from this numer- up and plat ascending do make times, son should place at the where the ac- both ous form from floor .and another corner occurred and at cident danger. and free from -Cer therefrom safe structures some where there were tainly steps leading sanitary the construction Because of a hand hold. use as danger would minimize the slaughter requirements, the floor ascending slipping often kept wet and it became room reasonably platform. Whether from the fat other substances because of steps person provide such prudent would rub- Schuster wore gutter drain. do so constituted and whether failure to the soles re- with a tread on ber half boots safety of an in regard for the During the lack of due sembling tire. an automobile the minds of duties, on which inspection he was vitee course of prudent persons reasonably might differ. platform to the cannot be as a matter law the It said frequently. the occasion of On appellant no to its invitees accident, working owed at the the had been Schuster appel- respect and the had in this plant approximately a month and Inc., Ross, Willow Creek Coal Skerl v. P.2d Middleton v. Sanford P.2d.502; Downing, 474, 6; Hayward Brown Utah Salt F. City, Utah 93 P. Lake Johanson L.R.A.,N.S., Packing Cudahy 107 Utah frequent So it has been sub incident thereto.3 primary properly negligence was lant’s ly assumption of risk and con stated that jury. mitted closely tributory negligence are allied and uniformity is no in the cases *3 In that into the other. the one shades principles applied considered and have Buffalo, R. Schlemmer Rochester & P. v. fit in- assumption risk, of volenti non of Co., 1, 407, 12, 409, 51 27 S.Ct. 205 U.S. No juria contributory negligence. and said; 681, Supreme L.Ed. Court “As failed has are cited and our search cases sumption in this broad sense obvi of risk any Courts by decisions the Utah to reveal ously negligence commonly into shades ap- drawing a distinction between clear . Negligence understood consists in con as- plicability contributory negligence, of experience spe duct which common or the sumption of risk or volenti non fit cial of the actor therefore, knowledge shows to be so We, case of an invitee. of, likely produce complained the result general law the answer. look to under Snow, Utah, the circumstances known to the ac is cited Knox 229 P.2d 874 tor, he that is held answerable for that re by appellant as decisive of the sult, certain, intended, although riot by it was presented appeal. of that this The facts case, however, foreseen. He is clearly distinguish from held to assume the it risk * * * ground. clearly A the same But the reading casual thereof one. between the is one difference two of de shows that court’s conclusion that ”4 * * kind; gree rather of guilty contributory there was than *. of amply sup- negligence as a matter of law In in which cases courts have held by ported overwhelming weight invitees were barred recovery from evidence. they because they assumed the speak only An examination a small number indiscriminately the assumption of the cases which have dealt with these negligence5 and and allude to principles three maze leads one into a contributory negligence contradictions, confusion and tiff ground barring recovery. as a only emerges one with a conviction injuria” fit “Volenti non prin is a gen- the decisions are irreconcilable. It is ciple measurably akin to the doctrine of erally assump- stated that the doctrine of assumption risk. It generally finds applies only tion of risk to master and employment in non-contract relationship relationship only servant and arises con- stated, Simply cases. means that great one tract. A number of cases held exposes voluntarily who himself or his applicable doctrine is not to an in- appreciated however, property to known and dan There vitee.2 numerous cases ger, another, may due to the wherein has been held that an invitee injuries not recover sustained thereby. injuries not recover for may because stated, defendant, Thus is little negligence of a there being difference because danger, principle aware of the the risk between it and the doctrine of Co., Am.Jur., Servant, 2. Barton & Mitchell v. Master 126 Wash. See also and 35 232, 993; Cudahy Packing ; C.J.S., Servant, 217 Co. v. Master 296 56 § § McBride, Cir., Cudahy 737; (b); Co., 8 Union 92 F.2d 357 Owens v. Pacific R. Packing Luyben, 720, Cir., 715, 1271, Co. v. 8 F.2d 63 319 U.S. S.Ct. 9 L. 87 32; Co., McCready v. Southern Pac. 9 Ed. 1683. 673; Cir., Cir., 26 F.2d and 9 569 47 F.2d Gravem-Inglis Baking Co., 5. Funari v. 40 Chicago, P., Ry. & St. M. O. Co. v. Nel- Cal.App.2d 44; 25, 104 P.2d Landrum v. Cir., son, 226 8 F. 708. 934, Roddy, 12 143 Neb. N.W.2d 149 Magill, Mo.App., 1041; Cudahy Dietz v. 104 A.L.R. Johanson v. Pack- S.W.2d 707; Eaton, ing U.S.App.D.C. Co., 98; Weber v. 82 107 577; Kearnes, Utah, F.2d Miner 160 221 Connecticut Stack v. P.2d McCready Cir., 153 Mass. River R. 26 N.E. v. Southern Pac. 9 994 ; 586, 117 Ky. Schmidt, Lutz & Poole v. 26 F.2d F.2d Gravem-Inglis Eaton, U.S.App.D.C. 66, Funari S.W.2d Weber v. Baking Co., Cal.App.2d 25, P.2d F.2d 577. apply plaintiff’s contributory cases assumption Likewise of risk. injuria properly submitted principle ing the of volenti judgment its voluntary entered there- sub verdict speak indiscriminately contributory on must no conten- be affirmed. jection danger known actively negli- tion here decided that Schuster was negligence6 and could have gent in his movements ground that on the sole only two from this There were contributory negligence. as- things could have done—refused to those principle with agree in platform, cend descend the walk that limit the defense cases across to the Southwest corner *4 or con and servant cases of risk to master there, descend where there were some and view, tract of the further cases. fixtures which have been used as could many from of non-con an examination hand-hold, placed there for although not cases, assumption of risk or in which tract purpose. do. The first could not injuria successfully in was volenti employment required him His to be on the defense, terposed that inherent in the as premises required him and his work to as- question facts the was platform many and the cend descend from part negligence on the of the day’s during times the work. The evi- applied plaintiff. We think the test to be kept dence is that he his and knife other Supreme in is laid down the this case instruments incident to work in a his lock- District of Court in Mosheuvel v. Colum er on the floor eight about feet East of the 57, 63, bia, 191 U.S. 48 L.Ed. S.Ct. slaughtered The the carcasses of plaintiff, in 170. In that case the descend passed along animals and the North South street, attempted step ing to to over an the platform. Walking sides of the the to water-box in the sidewalk and uncovered Southwest corner to descend there would ways injured. were available delay additional time and in incurred walk the for her to around water-box on obtaining replacing and needed instruments fully cognizant of She was the either side. passed by. inspecting the meat had used the sidewalk on situation and Whether, all notwithstanding these handi- occasions, walking around sometimes caps, he none the less have crossed should stepping over it. the box sometimes platform to the Southwest corner of the barring reversing lower court the re In necessary step every time was to covery, that she had know ground on the platform, say least, to ascend the the wilfully the the ingly question upon which minds of reasonable apply “Coming to Court said: Supreme might differ one the men this, the Was principle, such court as a matter law. not for the the haz the water box and situation of the Affirmed. step attempt to from an over it to result ard plaintiff, with the knowl great that the so PICKETT, Judge Circuit (dissenting). situation, not, as reason edge of the The in dispute. facts this case are not in person, step have elected to ably prudent employ The the box, instead of to the the across inspector States as a assigned meat side of the tread of from either sidewalk plant packing to defendant’s Ogden, think, was, this, step ? And we un last the purpose performing Utah. For his proof, question undisputed der plant access the entire had to duties See also Mc not for the court.” jury, and principal duties confined him to but Co., Cir., Pac. F. Cready Southern killing floor. is known as He what Cir., 47 F.2d 673. 569 and 2d working there for considerable his duties him principles time and length of Applying these constantly platform on and off hand, conclude that to be we case in Magill, Mo.App., Ry. Dietz v. S.W. & Terminal Dallas 6. Levlon v. Tox.Civ.App., 117 Poole v. 2d 707. S.W.2d Ky. Schmidt, 586, 117 S.W.2d Lutz & defendant. twenty-three ing under the direction of the high. plat- slip get He free on and off necessarily wet and to room was pery any he saw fit. He condition form in which all times and was a manner de- no more than an invitee.3 killing expected to be on (cid:127) which an any plant. fendant him the packing meat owed ordinarily heavy treaded That wore boots with invitee was entitled. occupant prem- prevent soles made slipping. No claim is is that the owner or permit them in a rea- keep the defendant maintain negligent ises will slippery. ting sonably condition and warn the invitee floor to become wet and safe complaint Plaintiff’s alleges the conditions- dangerous latent defects or maintenance of lia- property. of this The basis above the floor and supposed superior knowl- bility lies in the provide failing an intermediate to edge of ascending assist his to and owner or oc- it. There is no denial that whatever dan cupant. By overwhelming weight gers there killing were in the room were authority recovery permitted is not where *5 open, plaintiff.2 obvious and known to the danger is as obvious and as well known occupant.4 to the invitee as to the owner or Although plaintiff’s work recognized by him to be on This rule was the Utah Su- preme employ he was not in its Court the case of Knox Snow, nor was he work- 2. As to 1. The al short that time was.- —A. is form how when usual took wouldn’t day in say off it hundreds of ly the water is bit plaintiff testified: ticles of practically oil. a bit of “very slippery, ***##* “Q. “Q. “Q. And “Q. That At “Q. “Q. step. “Q. So that is way? almost the dirtiest day, more, you a hundred. floor, time. It is up on the method? —A. jump. you Step You could And How did big —A. knowledge knew how far it It fat on east end. fat down question, say would came to because the least a just naturally slippery but in step you down. quitting was more of then little like is, you conveyed Oh, hundreds of times described the knew the floor and a you you get you customarily platform? you when jump, You hundred? —A. yes. see?—A. Yes. there, times, work; It is of this condition the especially hadn’t time. There is Well, generally just would would gutter water to that drain.” you quite on this was, and that is real- conditions there stepped then before the I —A. what get jump; left the you? hardly spray it is a little carries at that floor to be down. At film of Yes. stop. —A. do is where up I all on and gener- just call it motor guess that? plat- your until quite time over par- will oil, It I L.R. Wash.2d F.2d 92 F.2d ward v. Ross, Inc., it was somewhat slick?—A. Sanford on how wet, slick at all times.” off there first knew that? —A. Yes. A. At Henry well. fact enough janitor service there. That erated ter-house, expected- Cudahy Packing “Q. I “Q. And 5! “Q. “Q. So “Q. “Q. “Q. Downing, floor didn’t that Caron v. 856; McCready thing is So, I come out of a plant, And it And W. You C.J.S., Negligence, your Downing, Ross, that customarily say, you - 737; you the floor in Cross isn’t you? 26 F.2d you 5 mentioned, I you 112 Utah all foot hits it. at Los Inc., Cir., time course, Am.Jur., Negligence, Cir., is noticed, knew Grays being Middleton v. P. Sanford —A. knew that condition?— times ?—A. Yes. it? —A. Yes. you knew that Co. v. a Co. v. 112 Utah knew that? —A. I condition that can be 569; 213 F. Angeles, knew taken care Harbor Yes. recognized when this v. Southern Pac. Mr. «¡« ^[*] Burns, Cir., 626, 632, they McBride, Cir., case in very 213 F. v. P. Middleton § 50. area 189 P.2d 442. 6; Schuster, you stepped and then the- customarily didn’t have- County, It cleanly ^[*] Hayward way 189 P.2d a 6; Hay of; you depends 148 A. it 8 slaugh- It Sec. very- that wet. was- op- ^[*] # is- Utah, 229 or oc- P.2d 874. There owner TOOL CO. PNEUMATIC CHICAGO cupant premises operated gasoline .a TOOL CO. HUGHES automobile service station. No. pur-

tiff desiring came in to the station chase an After some dis- automobile tire. Appeals Court States owner, plaintiff pro- with the cussion Circuit. Tenth through the station in to the ceeded oh 12, 1951. Nov. grease inspect tire liners. room some inter 12, 1951. Rehearing Dec. Denied daylight. in broad It was slipped pit grease and fell into a

injured. Recovery denied

grounds that the a business plaintiff,

vitee, contributory negli-

gence suf- taking in not reasonable and obviously precaution

ficient an dan- avoid

gerous condition.

It whether the defense is of little concern termed volenti non fit

negligence, risk or incurred same conclusion we arrive at the

when obvious C.J.S., Negli-

known to invitee.

gence, §

Actually opin- majority the effect furnish

ion defendant did not is that the place reasonably safe duty it owed to its own

work which is employee án

employees. Under Utah law of all risk deemed which he en- dangers and obvious

known if employ.5 Thus

counters employee an

tiff is be classified necessary logi- it would apply the law we

cal that an I employee. though he were

risk as whether however, regardless of

think, em- due to an required was that plaintiff should not invitee an

ployee or owing that due If

recover. in Utah he is barred employee

.an If he is an risk doctrine.

.assumption ad- because the recover cannot

(cid:127)invitee dangerous con- facts mitted him. known to obvious

ditions were judgment. reverse

I would Ec Roth v. Co., P. 28 Utah cles, R. Utah Pac. Western Miller Higgins P. Pedro, Utah v. San Laub P. Co., 104, 72 Utah Pac. Southern 152 P. & S.L.R. L.A. 467; Oregon Line R. Short Dunn