JOHN R. BRAND, District Judge.
Plaintiff Harold L. (Louie) Bogart lived at Farmington about a block from the premises of Hester Mud Company, for whom he had formerly worked. His uncle, Carl Rucker, was employed by Hester Mud Company as a foreman, and lived on the Mud Company yard. On the day of the accident, Bogart, who often visited his uncle, to the knowledge of Mr. Hester, went to the mud yard to borrow a tool from his uncle with which to repair an air-conditioner at his house. While there talking to the uncle, the defendant James Engelbrecht, a truck driver for defendant American Tank & Steel Company, entered the shop where they were and asked Rucker if he would help him load the tank, for which he had been sent, onto the truck. The tank belonged to Hester and was to be returned to American Tank to have skids attached to it. Rucker, agreeing to assist in the loading, went with Engelbrecht, and plaintiff and several others followed and sat down near the tank to watch the loading operation. Among the spectators was one Lobato, another of Hester’s employees.
Sometime previously, Rucker had built a chain hoist to be used in the mud yard for lifting heavy objects, and it had been used in loading tanks such as was to be done in this case. The hoist was hung on rollers and was not level, being lower at one end, so that when an object was lifted it would move or travel to the low end unless prevented.
Rucker prepared to lift the tank by placing a steel crossarm attached to the hoist through the manhole in the top of the tank and then climbed onto an adjacent tank and commenced raising the one to be loaded. Engelbrecht started his truck motor and prepared to back under the tank when it was lifted high enough to allow his truck to be placed beneath it. Before the tank was in proper position, however, it started to travel to the low end of the hoist and toward Ruck-er. He, seeing that unless stopped it would move so close to him as to prevent him from controlling it, cried, “Louie, give me a hand ! ”, whereupon plaintiff (Louie) sprang to help. He grasped the tank to steady it, and at that instant the crossarm by which it was suspended disengaged, the tank dropped and pinned plaintiff against a nearby parked truck, causing him bodily injuries.
Plaintiff brought this action for damages claiming that he was invited onto the premises ; that Rucker, in the scope of his employment for Hester, requested his assistance in loading the tank; that Engelbrecht also requested his assistance, and that he volunteered to assist; that Hester Mud Company was negligent in the method by which the tank was rigged to be hoisted, and that its employee Rucker negligently operated the hoist; that Engelbrecht was negligent in backing his truck into the tank and causing it to fall while it was being hoisted, and that American Tank is liable for his negligence. Plaintiff later filed an affidavit in which he asserted that he knew that the hoist being used had been faultily installed, in that one end was lower than the other; and that the bar to be inserted in the opening in the tank was too short for such purpose, and was inadequate. Bogart had previously used this hoist in loading tanks while working for Hester.
In separate answers the defendants denied their negligence, claimed contributory negligence, assumption of risk, and status of plaintiff as a trespasser. The depositions of plaintiff Bogart, his uncle Rucker and the truck driver Engelbrecht were taken, and defendants then filed motions for summary judgment, asserting that at the time of the injury plaintiff was on the mud company premises as a trespasser or bare licensee and, as such, the only duty owed to him by defendants was that of not wilfully or wantonly causing him injury; that the amended complaint did not allege any wilful or wanton acts of negligence.
The court granted summary judgment and dismissed the complaint, from which order this appeal was taken.
That summary judgment was properly resorted to is evident, since the depositions and pleadings raise no issuable question of fact material to a determination of the controversy. It is not clear what caused the tank to become disengaged from the bar with which it was being lifted, and this could have been caused either by the bar being too short, the hoist being unlevel, the carelessness of Rucker in operating the hoist, the truck bumping the tank while it was suspended, or a combination of these factors. It is conceivable also that it was caused by plaintiff’s action in halting its movement suddenly. It may be assumed, however, for our purpose that either one or more or all the defendants were guilty of negligence which caused the injury, and that plaintiff was free of contributory negligence at the time of the accident. It may be conceded that plaintiff’s status was that of “licensee” instead of trespasser.
What then are the undisputed facts which led to plaintiff’s injury? He was watching the attempt to load the tank on the truck. He had no interest in the operation or the business at hand. He was a mere spectator. Suddenly his uncle requests his assistance, although there was a workman of Hester’s also watching the work, and without hesitation he hastens to assist and is injured while in the act of helping his uncle control the moving tank. Whether he be called trespasser, licensee or invitee becomes of no consequence because his status for the purpose of our inquiry was that of “volunteer”. The fact that he was asked (invited) by Rucker to help does not alter the situation. Rucker had no authority, express or implied, to put him to work, or to invite his assistance so as to make him a temporary employee. No emergency existed (and none is claimed) which could have given him authority to do so.
Bernhardt v. American Ry. Exp. Co., 218 App.Div. 195, 218 N.Y.S. 123, 125. “We have, then, the simple question of the liability of a master for the act of a servant to one assisting the latter by unauthorized invitation, where the injury occurred during the performance of a detail of the work. There seems to be little, if any, distinction between the nature of the duty owed to a person assisting by invitation and that owed to a pure volunteer. The plaintiff, itnder the circumstances here, cannot place himself in a better legal position than the servant with whom he works. Langan v. Tyler, [2 Cir.] 114 F. 716, 718, 51 C.C.A. 503. The master is no more liable to him for the servant’s negligence than he would be to the servant for the plaintiff’s negligence. The defendant had no knowledge of the situation which arose, and could not well have anticipated what happened. The servant, by invitation or by acceptance of volunteered assistance, could impose no new or greater obligation on the master than that which the master owed to him. Nor could the invitee or volunteer create a new or greater liability by his act. The authorities sustain the principle of non-liability under such circumstances.” (Emphasis ours.)
Plaintiff (appellant) urges reversal under only one point, in this language:
“The Court erred in granting summary judgment in that the evidence taken in the light most favorable to appellant shows that appellees were actively negligent resulting in injury to appellant at which time appellees owed appellant a duty to use ordinary and reasonable care for his protection.
“A. Appellant was not a trespasser at time of injury.
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JOHN R. BRAND, District Judge.
Plaintiff Harold L. (Louie) Bogart lived at Farmington about a block from the premises of Hester Mud Company, for whom he had formerly worked. His uncle, Carl Rucker, was employed by Hester Mud Company as a foreman, and lived on the Mud Company yard. On the day of the accident, Bogart, who often visited his uncle, to the knowledge of Mr. Hester, went to the mud yard to borrow a tool from his uncle with which to repair an air-conditioner at his house. While there talking to the uncle, the defendant James Engelbrecht, a truck driver for defendant American Tank & Steel Company, entered the shop where they were and asked Rucker if he would help him load the tank, for which he had been sent, onto the truck. The tank belonged to Hester and was to be returned to American Tank to have skids attached to it. Rucker, agreeing to assist in the loading, went with Engelbrecht, and plaintiff and several others followed and sat down near the tank to watch the loading operation. Among the spectators was one Lobato, another of Hester’s employees.
Sometime previously, Rucker had built a chain hoist to be used in the mud yard for lifting heavy objects, and it had been used in loading tanks such as was to be done in this case. The hoist was hung on rollers and was not level, being lower at one end, so that when an object was lifted it would move or travel to the low end unless prevented.
Rucker prepared to lift the tank by placing a steel crossarm attached to the hoist through the manhole in the top of the tank and then climbed onto an adjacent tank and commenced raising the one to be loaded. Engelbrecht started his truck motor and prepared to back under the tank when it was lifted high enough to allow his truck to be placed beneath it. Before the tank was in proper position, however, it started to travel to the low end of the hoist and toward Ruck-er. He, seeing that unless stopped it would move so close to him as to prevent him from controlling it, cried, “Louie, give me a hand ! ”, whereupon plaintiff (Louie) sprang to help. He grasped the tank to steady it, and at that instant the crossarm by which it was suspended disengaged, the tank dropped and pinned plaintiff against a nearby parked truck, causing him bodily injuries.
Plaintiff brought this action for damages claiming that he was invited onto the premises ; that Rucker, in the scope of his employment for Hester, requested his assistance in loading the tank; that Engelbrecht also requested his assistance, and that he volunteered to assist; that Hester Mud Company was negligent in the method by which the tank was rigged to be hoisted, and that its employee Rucker negligently operated the hoist; that Engelbrecht was negligent in backing his truck into the tank and causing it to fall while it was being hoisted, and that American Tank is liable for his negligence. Plaintiff later filed an affidavit in which he asserted that he knew that the hoist being used had been faultily installed, in that one end was lower than the other; and that the bar to be inserted in the opening in the tank was too short for such purpose, and was inadequate. Bogart had previously used this hoist in loading tanks while working for Hester.
In separate answers the defendants denied their negligence, claimed contributory negligence, assumption of risk, and status of plaintiff as a trespasser. The depositions of plaintiff Bogart, his uncle Rucker and the truck driver Engelbrecht were taken, and defendants then filed motions for summary judgment, asserting that at the time of the injury plaintiff was on the mud company premises as a trespasser or bare licensee and, as such, the only duty owed to him by defendants was that of not wilfully or wantonly causing him injury; that the amended complaint did not allege any wilful or wanton acts of negligence.
The court granted summary judgment and dismissed the complaint, from which order this appeal was taken.
That summary judgment was properly resorted to is evident, since the depositions and pleadings raise no issuable question of fact material to a determination of the controversy. It is not clear what caused the tank to become disengaged from the bar with which it was being lifted, and this could have been caused either by the bar being too short, the hoist being unlevel, the carelessness of Rucker in operating the hoist, the truck bumping the tank while it was suspended, or a combination of these factors. It is conceivable also that it was caused by plaintiff’s action in halting its movement suddenly. It may be assumed, however, for our purpose that either one or more or all the defendants were guilty of negligence which caused the injury, and that plaintiff was free of contributory negligence at the time of the accident. It may be conceded that plaintiff’s status was that of “licensee” instead of trespasser.
What then are the undisputed facts which led to plaintiff’s injury? He was watching the attempt to load the tank on the truck. He had no interest in the operation or the business at hand. He was a mere spectator. Suddenly his uncle requests his assistance, although there was a workman of Hester’s also watching the work, and without hesitation he hastens to assist and is injured while in the act of helping his uncle control the moving tank. Whether he be called trespasser, licensee or invitee becomes of no consequence because his status for the purpose of our inquiry was that of “volunteer”. The fact that he was asked (invited) by Rucker to help does not alter the situation. Rucker had no authority, express or implied, to put him to work, or to invite his assistance so as to make him a temporary employee. No emergency existed (and none is claimed) which could have given him authority to do so.
Bernhardt v. American Ry. Exp. Co., 218 App.Div. 195, 218 N.Y.S. 123, 125. “We have, then, the simple question of the liability of a master for the act of a servant to one assisting the latter by unauthorized invitation, where the injury occurred during the performance of a detail of the work. There seems to be little, if any, distinction between the nature of the duty owed to a person assisting by invitation and that owed to a pure volunteer. The plaintiff, itnder the circumstances here, cannot place himself in a better legal position than the servant with whom he works. Langan v. Tyler, [2 Cir.] 114 F. 716, 718, 51 C.C.A. 503. The master is no more liable to him for the servant’s negligence than he would be to the servant for the plaintiff’s negligence. The defendant had no knowledge of the situation which arose, and could not well have anticipated what happened. The servant, by invitation or by acceptance of volunteered assistance, could impose no new or greater obligation on the master than that which the master owed to him. Nor could the invitee or volunteer create a new or greater liability by his act. The authorities sustain the principle of non-liability under such circumstances.” (Emphasis ours.)
Plaintiff (appellant) urges reversal under only one point, in this language:
“The Court erred in granting summary judgment in that the evidence taken in the light most favorable to appellant shows that appellees were actively negligent resulting in injury to appellant at which time appellees owed appellant a duty to use ordinary and reasonable care for his protection.
“A. Appellant was not a trespasser at time of injury.
“B. Appellant was an invitee at time of injury.
“C. Regardless of his status as licensee or invitee at time of injury, appellees owed appellant the duty of reasonable care at that time.”
We agree that appellant was not a trespasser, and feel that his status was that of licensee prior to the time he volunteered to assist Rucker in the work. Appellant says, however, that he became an “invitee” when Rucker requested his assistance, or' invited him to help load the tank. That assertion has been answered — no invitation was given by Hester, the owner, but by Rucker, the foreman, who had no authority to do so.
As to the argument that defendants owed plaintiff the duty of reasonable care at the time, and were actively negligent, and hence liable, we find no support in the authorities for this proposition. There are some cases which draw a distinction between active and passive negligence involving injuries suffered by licensees and trespassers, but a reading of them will disclose facts which differ from the instant matter. See Lucas v. Walker, 22 Cal.App. 296, 300, 134 P. 374, 376, where it was said:
“But if it be conceded that plaintiff was a mere licensee of defendant when he was hurt, it is still true that he was upon the premises and doing the work in question with the knowledge and consent of defendant. * * * A licensee under such circumstances is entitled to recover for any injury to himself, in the absence of contributory negligence upon his part, resulting from the active negligence of the licensor, and such licensor is responsible in damages for any overt act of negligence, though the same be neither willful nor wanton.”
Other California cases cited on this point are Gay v. Cadwallader-Gibson Co., 34 Cal.App.2d 566, 93 P.2d 1051; Boucher v. American Bridge Co., 1950, 95 Cal.App.2d 659, 213 P.2d 537; and Newman v. Fox West Coast Theatres, 1948, 86 Cal.App.2d 428, 194 P.2d 706.
One can be held liable for negligence only where he has failed to observe that standard which the law requires of him in the performance of a duty owed by him to the injured person. Generally no one is bound to guard against or take measures to avert that which he would not reasonably anticipate as likely, to happen. Could any of the defendants have reasonably anticipated that an onlooker, whose presence at the place could not have been expected, would interest himself in the loading of the tank and take it upon himself to render assistance?
In Chavez v. Torlina, 15 N.M. 53, 99 P. 690, it was held that an owner of property is not liable to a trespasser or one who is on his property by mere permission or sufferance, for the negligence of himself or his agents; that a bare licensee goes upon premises at his own risk, must take them as he finds them, and accepts the permission thus granted with its concomitant conditions and perils; that as to a bare licensee, the only obligation resting upon the owner would be to refrain from any wanton or willful act producing injury.
In Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178, this doctrine was reaffirmed. In an action brought against the defendant Town for property damage sustained in a gas explosion, it was held:
“Where owners of auto cabins had built them wholly on land belonging to a town, that is in the street, the owners were trespassers or licensees at best, and town was liable for damages from explosion in cabins, resulting from town’s power ditchdigger’s snagging of gas pipe, only if its employees were guilty of wanton or wilful negligence.” (Emphasis ours.)
Kelly v. Tyra, 103 Minn. 176, 114 N.W. 750, 752, 115 N.W. 636, 17 L.R.A.,N.S., 334, defines a volunteer as follows:
“A volunteer is one who intrudes himself into matters which do not concern him, or does or undertakes to do something which he is not legally nor morally bound to do, and which is not in pursuance or protection of any interest. * * * To one who is a volunteer, properly speaking, even if assisting in the master’s work at the request of a servant, no affirmative duty to exercise care is due originally, but only after knowledge of peril.”
And, further, in Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 273 N.W. 783, in this manner:
“Plaintiff, though an ‘invitee’ when he entered the store with intent to make a purchase, became a mere ‘volunteer’ when he aided clerk in killing a rat and received blow of knife which clerk aimed at rat, so as to preclude recovery from store owner for injuries, in absence of showing that clerk’s action was willful or wanton.”
To the same effect are:
Kentucky Lumber Co. v. Nicholson, 157 Ky. 812, 164 S.W. 84, 86, 51 L.R.A.,N.S., 1213. “Employers of labor, except in cases of emergency, have the right to know whom they will be called upon to protect in the relation of servant, and when this relation begins; therefore when a third party undertakes, as an accommodation, or out of curiosity, to render some assistance to an employé, who has no authority to engage or consent to his services, he assumes the risk of any accident that may happen due to the ignorance or even carelessness, of the employé.”'
Callaham v. Carlson, 85 Ga.App. 4, 67 S.E.2d 726, 734. “One who, without any employment whatever, but at the request of a servant who has no authority [at the time or for such purpose] to employ other servants, voluntarily undertakes to perform service for a master, is a mere volunteer, and the master does not owe him any duty, except not to injure him wilfully * * (Material in brackets added.)
38 Am.Jur. 782, § 120, Negligence. “Persons who enter the premises of an employer merely for the purpose of visiting or interviewing an employee on business having no connection with that of the employer, * * * are at best mere licensees to whom the employer owes no duty except to refrain from exposing them to peril by active negligence and from injuring them wilfully or wantonly.”
38 Am.Jur. 845, § 171, Negligence. “One cannot deliberately incur an obvious risk of personal injury, especially when preventive measures are at hand, and then hold the author of the danger for the ensuing injury. Thus, a person upon the property of another, who deliberately chooses to expose himself to danger of a patent character in the condition of the premises, which he could easily avoid with the exercise of care, may not hold the landowner liable for any resulting injuries, whatever may be the nature of his relationship to the landowner.”
In Henry Quellmalz Lumber & Mfg. Co. v. Hays, 173 Ark. 43, 291 S.W. 982, 983, the plaintiff went to the defendant’s cotton gin to visit his uncle who was an employee of the defendant and who was operating one of the gin machines. The uncle asked the plaintiff to help unchoke the gin stand and while doing so, he was injured. The court said:
“It was wholly immaterial whether or not the assistance of the plaintiff would tend to facilitate the business of the defendant or to make it easier for the ginner to unchoke the gin stand. Such facts would not give the ginner authority to employ additional help. There must be a sudden or unexpected emergency which would imperil the ginner or threaten harm to the gin stand in order to give implied authority to the ginner to employ temporary assistance. The undisputed evidence shows that there was no sudden or unexpected emergency, which 'would give the ginner the implied authority to employ a temporary assistant to help him unchoke the gin. stand * * * he might have called to his assistance the other ginner who was not more than three feet from him or another employee who was working nearby. The servant who had general control and management of the gin had .not directed him to speed up his work. On the other hand, the undisputed evidence shows that there was no necessity to do that.” (Emphasis ours.)
It also seems clear that plaintiff assumed the risk and is for such reason barred from recovery. He had previously worked for this employer at these premises. He was not only acquainted with the method used there in loading tanks, he knew that the homemade hoist which was being used at the time had been faultily installed and that an object lifted by it would tend to “travel”, and that the crossbar inserted in the tank opening was too short and apt to become disengaged. Yet he contends that these very defects in the apparatus contributed to the accident which injured him. Instead of the defendants exposing him to peril, as is claimed, he deliberately exposed himself to the danger and without cause.
The judgment dismissing the action was correct, and is affirmed, and,
It is so ordered.
McGHEE, COMPTON, and CARMODY, JJ., concur. LUJAN, C. J., dissenting.