Ames, C.
The defendant in error, avIio Avill hereafter be called the plaintiff, was employed by the defendant breAving company in the capacity of a general workman in and about its establishment. He Avas strong, healthy, mature and intelligent, and capable of handling heaA'y weights, in the doing of which the duties of his employment to a considerable extent consisted. In one of the rooms of the brewery Avas an iron tank, of dimensions, AAdien in position for use, of about ten feet in length by nine and a half feet in width, and six feet in height. It had been lifted up for repairs and was resting upon one of its sides or edges. Along the sides Avere three so-called flanges, extending several inches from its body, — one at the bottom, one at the top and one midAvay between. The Aveight of the structure was between one and two thousand pounds, —probably about twelve to fifteen hundred pounds. The plaintiff, together with some fifteen or sixteen other employees of the company, Avere called upon to tip the tank over from its side so that its bottom Avould rest upon the floor in position for use. This was done by the foreman and several of the men lifting upon the upper flange, then resting upon the floor, so as to throw the tank forward towards the Avest, while the remainder of the force ranged themselves on the three other sides and grasped the middle flanges, for the purpose of steadying the motion and breáking the fall of the structure. The plaintiff came into the room after the operation had been begun, and, [458] in obedience to a direction by the foreman, took his place at what was then the upper, and after the task had been accomplished, the western side of the tank. After the tank had been moved so far over as to shift its line or centre of gravitation, its motion was, as was natural, considerably accelerated', and when it reached the floor it caught underneath it one of the plaintiff’s feet; inflicting an injury,’to recover damages for which this action ■was brotight. The evidence adduced at the trial was that of the plaintiff alone. The jury found a general verdict for the plaintiff and in response to especial inquiries, found that he Avas not guilty of negligence, but that the defendant was guilty of negligence, through or. by its foreman, Avhich “consisted in his. neglect to properly direct and superintend the men ordered by him to turn over the tank.” We are unable to find in the record any sufficient evidence of such negligence. The only evidence touching this matter to which counsel have called our attention is the following testimony by one of the men, a boiler-maker by trade, Avko Avas engaged in the operation, and Avho was called and examined by counsel for the plaintiff in part as folloAvs:
Q. Do you know what the proper and ordinary way of turning such a tank as this Avas would be?
A. I guess I do, in my own Avay, while other men may have different ways.
Q. You have worked at this kind of work you say for the past sixteen years, — this kind of Avork; that is, in the turning of large bodies of this kind, while you Avould be conducting the repair of the same?
A. Yes, sir.
Q. You may go on and state what would have been the proper and ordinary manner, method and way for the men handling such tanks, in such a position as' this tank was in, to have turned it over?
A. Well, in the position the tank was in, it Avould be just the way I would do it.
Q. That is, you mean you would turn it over to the west?
[459] A. Yes, sir.
Q. But in the manner of doing it, and as to the method of doing it, how as to that?
A. Well, that would be a proper method; of course, it all would depend, and that all together, whether you desired to let it fall, or whether you intended holding it. It would be just as you wished in the turning of it.
Q. Would you have that understood before you attempted to turn the tank?
A. Yes, sir.
Q. In that manner and in that regard would there be any orders given to the men previously?
A. Yes, sir.
Q. Orders to the men what to do ?
Objected to as immaterial, irrelevant and incompetent. Sustained.
Q. Now, Mr. Sands, if plank had been put upon the floor to the west of the tank and where it was to have fallen, say plank of six inches in thickness, so as the tank would rest upon them, — such plank as that would that have been a fair device, to prevent the people from getting hurt under the tank in the process of turning?
A. Well, perhaps that would have been all right, if a person wanted to lower it over in that way; but for my part I would not have anything there or anything under it for the simple reason that it Avould not hurt the tank to let it fall, because it Avas all iron.
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Ames, C.
The defendant in error, avIio Avill hereafter be called the plaintiff, was employed by the defendant breAving company in the capacity of a general workman in and about its establishment. He Avas strong, healthy, mature and intelligent, and capable of handling heaA'y weights, in the doing of which the duties of his employment to a considerable extent consisted. In one of the rooms of the brewery Avas an iron tank, of dimensions, AAdien in position for use, of about ten feet in length by nine and a half feet in width, and six feet in height. It had been lifted up for repairs and was resting upon one of its sides or edges. Along the sides Avere three so-called flanges, extending several inches from its body, — one at the bottom, one at the top and one midAvay between. The Aveight of the structure was between one and two thousand pounds, —probably about twelve to fifteen hundred pounds. The plaintiff, together with some fifteen or sixteen other employees of the company, Avere called upon to tip the tank over from its side so that its bottom Avould rest upon the floor in position for use. This was done by the foreman and several of the men lifting upon the upper flange, then resting upon the floor, so as to throw the tank forward towards the Avest, while the remainder of the force ranged themselves on the three other sides and grasped the middle flanges, for the purpose of steadying the motion and breáking the fall of the structure. The plaintiff came into the room after the operation had been begun, and, [458] in obedience to a direction by the foreman, took his place at what was then the upper, and after the task had been accomplished, the western side of the tank. After the tank had been moved so far over as to shift its line or centre of gravitation, its motion was, as was natural, considerably accelerated', and when it reached the floor it caught underneath it one of the plaintiff’s feet; inflicting an injury,’to recover damages for which this action ■was brotight. The evidence adduced at the trial was that of the plaintiff alone. The jury found a general verdict for the plaintiff and in response to especial inquiries, found that he Avas not guilty of negligence, but that the defendant was guilty of negligence, through or. by its foreman, Avhich “consisted in his. neglect to properly direct and superintend the men ordered by him to turn over the tank.” We are unable to find in the record any sufficient evidence of such negligence. The only evidence touching this matter to which counsel have called our attention is the following testimony by one of the men, a boiler-maker by trade, Avko Avas engaged in the operation, and Avho was called and examined by counsel for the plaintiff in part as folloAvs:
Q. Do you know what the proper and ordinary way of turning such a tank as this Avas would be?
A. I guess I do, in my own Avay, while other men may have different ways.
Q. You have worked at this kind of work you say for the past sixteen years, — this kind of Avork; that is, in the turning of large bodies of this kind, while you Avould be conducting the repair of the same?
A. Yes, sir.
Q. You may go on and state what would have been the proper and ordinary manner, method and way for the men handling such tanks, in such a position as' this tank was in, to have turned it over?
A. Well, in the position the tank was in, it Avould be just the way I would do it.
Q. That is, you mean you would turn it over to the west?
[459] A. Yes, sir.
Q. But in the manner of doing it, and as to the method of doing it, how as to that?
A. Well, that would be a proper method; of course, it all would depend, and that all together, whether you desired to let it fall, or whether you intended holding it. It would be just as you wished in the turning of it.
Q. Would you have that understood before you attempted to turn the tank?
A. Yes, sir.
Q. In that manner and in that regard would there be any orders given to the men previously?
A. Yes, sir.
Q. Orders to the men what to do ?
Objected to as immaterial, irrelevant and incompetent. Sustained.
Q. Now, Mr. Sands, if plank had been put upon the floor to the west of the tank and where it was to have fallen, say plank of six inches in thickness, so as the tank would rest upon them, — such plank as that would that have been a fair device, to prevent the people from getting hurt under the tank in the process of turning?
A. Well, perhaps that would have been all right, if a person wanted to lower it over in that way; but for my part I would not have anything there or anything under it for the simple reason that it Avould not hurt the tank to let it fall, because it Avas all iron.
An attempt Avas also made to show that other appliances, such as “block and tackle” should have been used; but as the foregoing testimony indicates, it utterly failed, although the witness says such means might have been used as Avould “let the tank doAvn easily,” —a fact which is manifest without evidence, — but it Avas proved that there were men enough, present and engaged, to have taken the structure up and carried it away. ■ Prom the foregoing it is plain, beyond dispute, that the employment of appliances would not have been in accordance with usage in such cases, and Avas not- required by [460] ordinary prudence, and that the manner in which the tank was pushed forward and allowed to fall to the floor was such as was customary and proper under such circum-stances. In what respect the management was at fault in failing 'to give previous directions for an ordinary, usual and prudent way of doing an act in an instance in which, by the plaintiff’s own showing, the act was in fact done in that manner, we are unable to understand. The plaintiff, being a strong, healthy and intelligent man of mature years, and accustomed to the handling of heavy bodies, must have known that as- the upper side of the tank should approach the floor, its motion would tend to become accelerated, and the ability of the men to restrain or control it would be diminished. In other words, he knew as well as any other person present the danger to be apprehended from a falling body of .great weight, and the risk therefrom to those engaged in the operation. This risk he deliberately incurred as incident to his employment. The jury found, no doubt correctly, that he was not guilty of negligence, but they seem to have thought that without negligence the injury would not have been inflicted, and thereupon convicted the defendant of having been guilty thereof. Accidents of the most grievous character are continually happening Avithout assignable fault or negligence by any body, and this case, so far as the record discloses, was an instance of that kind. Authorities are numerous and familiar to every lawyer that, to quote from Motey v. Pickle Marble & Granite Company, 74 Fed. Rep., 155, “A servant assumes the ordinary risks and dangers of the employment upon which he enters, so ■ far as they are known to him and so far as they Avould have been knoAvn to one of his age, experience and capacity by the use of ordinary care”; and from Walsh v. St. Paul & D. R. Co., 8 N. W. Rep. [Minn.], 145, “In performing the duties of his place, a servant is bound to take notice of the ordinary operation of familiar laws of gravitation, and to govern himself accordingly. If he fails to do so, the risk is his own. If the instrumentalities fur[461] nishecl by the master for the performance of the servant’s duties are defective, and the servant is aware of this, though not aware of the degree of defectiveness, he is hound to use his eyes to see that which is open and apparent to any person using his eyes, and, if he fails to do so, he can not charge the consequences upon his master.” See, also, Sullivan v. Nicholson File Co., 45 Atl. Rep. [R. I.], 549; Norfolk Beet-Sugar Co. v. Hight, 56 Nebr., 162.
It may be assumed that there was no other evidence in support of alleged negligence than that mentioned in the special finding of the jury, and none other has been brought to our attention by counsel, or, so far as we can ascertain, is disclosed by the record. Some complaint was made in the argument that the foreman assisted the men in lifting the tank from its position, and the assertion is made that perhaps more force was used than was requisite, and that by this means the structure was thrown fore-ward with unnecessary violence, hut the evidence, if any, to this effect, was so slight that the jury did not regard it as sufficient proof of negligence, and in this regard we agree with them.
The conclusion from the foregoing is that the evidence is insufficient to sustain the verdict, and that the defendant was entitled to the peremptory instruction, which it asked, for a verdict in its favor. It is therefore recommended that the judgment of the district court be' reversed and a new trial granted.
Duffie and Albert, CC., concur.
By the Court: Por reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
Reversed and remanded.
The following opinion was filed on rehearing January 8, 1903:
Commissioner’s opinion, Department No. 3.
Evidence: Finding. Evidence examined, and found to support the finding of the jury.