King v. Morgan

109 F. 446, 48 C.C.A. 507, 1901 U.S. App. LEXIS 4214

Opinions

ADAMS, District Judge,

after stating the case as above, delivered ihe opinion of the court.

We have read all the evidence preserved in the bill of exceptions with great care, and think the following facts are practically undisputed: Plaintiff at the time of his injury was a young man -of 24 years of age, of mature judgment, and large experience in using the machine drill employed in mining operations. For more than two years he had been working in mines in Colorado, drilling holes and loading the same with dynamite (sometimes in the evidence called “giant powder”) preparatory for explosions. For more than three months prior to his injury he had been employed in defendants’ mines engaged in the same work. He was well educated, having had a full course of instruction in common schools, and instruction for about three years afterwards in high and normal schools. He knew the properties of dynamite, — among others, that it would explode by concussion. He knew the laws of force, — that a heavy blow was more likely to produce concussion than a light blow. He knew the necessity of graduating the force employed in tamping the charge into the drill hole so as, if possible, to obviate explosion. At the time he'entered defendants’ employment, he found their mine equipped with tamping bars made of gas pipe of the diameter of about one inch, interior measure, and of the length of about seven feet. The ends cl these bars were plugged with wood, clay, or other substances, so that the dynamite could not be pressed back into their hollow interior. This sort of tamping bar had been for a long time in use by defendants at their mine, and at that time was in use in at least 25 per cent, of all mines in the state of Colorado. In a majority of .the mines, however, wooden bars were employed for tamping purposes; in some, solid iron bars were employed, but these only to a limited extent; in others, an implement called an “iron scraper” was employed for the purpose of tamping in the charge of dynamite. Plaintiff at the time he entered defendants’ employment was entirely familiar, by reason of previous service in other mines, with the use of each and all of these devices as tamping bars. He had seen them and used them himself in several other mines in which he had previously been employed. lie had served an apprenticeship for several months, learning how to handle the machine drill, and, of necessity, how to drill holes and charge them with dynamite. After serving such apprenticeship he had been for a year or more before the injury in question in full charge of a machine drill, and knew as much about the merits and demerits of the different kinds of tamping bars employed in the mines as any one. At the time of engaging in the service of defendants he knew they were employing the hollow iron bar made of gas pipe, and commenced its use in defendants’ mines without complaint or any suggestion of change, and continued using it without complaint or criticism for over three months before he was injured. During these three months no accident or injury occurred to plaintiff or any of his co-employés. It appears from plaintiff’s own evidence that these tamping bars were entirely fit for the purposes for which they were used, and did good execution in tamping. While there is much conflict of testimony on the subject, there is evidence in the record tending to show that wooden tamping bars are less dangerous than iron bars; but it also appears (of which fact we may take judicial cognizance) that the business of exploding rock in mining operations is, at best, a hazardous one. Plaintiff testified that he knew that a blow would cause an explosion of dynamite. He also testified, in answer to questions, as follows:

“Q. How bard did you tamp? That is, what force is usually applied for the tamping of this powder? * * * A. * * * Just steady, up and down. You get the powder in the bottom of the hole, and, after the powder has reached the bottom of the hole, pack it up and down something like that [indicating], with the bar in your hand. Never let loose of the bar. Let it go down like that [indicating]; not like the old-fashioned shotgun,— don’t go down as hard, — but pack it. Q. Not like they used to load what? A. The old-fashioned shotgun; going down hard. Q. Why not? Why were you so particular? Why was it necessary to be so particular? On account of the liability of the dynamite to explode, if you struck hard, the powder? A. Yes, sir; I have heard of cases where dynamite was exploded by two trains coming together, as a jar would strike it; not necessary to strike it very hard.”

Plaintiff says he was not informed by defendants at the time he entered their service that the bars in question were unsafe, and that he did not know they were unsafe. The trial below proceeded on the theory that there was some evidence tending to show plaintiff’s ignorance of the danger incident to the use of the tamping bar in question, and the court’s charge left this issue to the jury, as necessarily involved in the determination of their verdict. Notwithstanding plaintiff’s claim of ignorance of danger, we are of opinion that the facts of the case, as already detailed, conclusively negative any such ignorance. He admits an intelligent appreciation of all the facts which constitute danger, and there was nothing in the implement complained of either occult or at all complicated or intricate. It was a simple piece of gaspipe, perfect of its kind, and one which, in his former employments, plaintiff had had full opportunity of contrasting with others, which he now says were safer. An intelligent man, with full knowledge of the character and quality of the implement furnish'ed him for use, and of all the facts and physical laws which render its use dangerous, after having voluntarily accepted employment in a hazardous business involving the use of such implements, will not be heard to say he did not know it was dangerous. Tuttle v. Railroad Co., 122 U. S. 189, 195, 7 Sup. Ct. 1166, 30 L. Ed. 1114; Dredging Co. v. Walls, 28 C. C. A. 441, 84 Fed. 428; Lyons v. Lighterage Co., 163 Mass. 158, 39 N. E. 800; Donahue v. Manufacturing Co., 169 Mass. 574, 48 N. E. 842; Walsh v. Railroad Co., 27 Minn. 367, 8 N. W. 145; Hill v. Drug Co., 140 Mo. 433, 41 S. W. 909. The case is thus reduced to one where plaintiff entered a hazardous employment, and voluntarily and without any complaint commenced work with an implement simple in character, with full knowledge of all facts concerning its use and of the dangers incident to such use, and also with full knowledge of the fact that other implements, which his evidence tends to show to be of a safer sort, were commonly used in other mines in that vicinity. The fact, disclosed by the proof, that defendants did not at the outset inform plaintiff of the danger incident to the use of the tamping bar in question is, under the circumstances of this case, no evidence of culpability on their part. The duty of cautioning a servant rests upon the master only in case he is informed or has reason to believe that the servant is inexperienced and ignorant of the probable dangers he is about to encounter. The master, in the absence of such information, may assume that an applicant who is apparently mature and intelligent is qualified for the particular work applied for by him. “It is only ■where such facts are brought to his notice of the disqualification of the servant to safely encounter dangers known lo him, and presumptively unknown to the servant, that the duty of cautioning and instructing the servant arises.” Railroad Co. v. Miller, 43 C. C. A. 436, 104 Fed. 124, and cases cited. Plaintiff’s unusual intelligence and long experience in all the details of the work undertaken hv him, as already narrated, fully exonerate defendants in this case from any such obligation. The general rule requiring an employer to furnish his employés with tools and appliances reasonably safe for the purposes for which they are intended, as laid down in the case of Railroad Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, to which our attention is invited by counsel for defendant in error, is fully recognized, and should be enforced in all proper cases. In this case, however, the uncontradicted testimony is that the tamping bar in question was perfect of its kind, and well adapted to the purposes for which it was intended, and did good execution in tamping. It also appears that in the year 1898, at the time plaintiff entered defendants’ service, the operators of between 3,000 and 4,000 out of the 12,000 to 15,000 mines in operation and in process of development in the state of Colorado were using the kind of iron tamping bar in question. In the light of these and all the other facts disclosed by the record, even though there be evidence that a different kind of tamping bar was more commonly employed, and was safer for the men, it is difficult, in the light of the doctrine announced in Railroad Co. v. Blake, 27 U. S. App. 190, 11 C. C. A. 93, 63 Fed. 45, and cases there cited, to see how any actionable negligence can be charged against defendants for making use of the bar in question. It is unnecessary, however, to rest our conclusion on this ground, as all the facts already adverted to have a legitimate bearing upon the next question presented for our consideration; that is, whether plaintiff, under the circumstances of this case, assumed the risk of injury by the use of the tamping bar in question.

He offered himself to defendant as an experienced workman, ready, willing, and qualified to perform the hazardous service they required. He saw at the outset the character of the tamping bar with which they had equipped their mines, and well knew how it compared with other implements employed by other operators for the same purpose. There was no concealment or other device resorted to by defendants to induce plaintiff to accept service involving its use. On the contrary, he entered upon such service without complaint, making no suggestion of any unfitness in the implement, or of any unusual exposure to be anticipated from its use. He affirmed and reaffirmed from day to -day his satisfaction and willingness to use the implement in question, by continued use thereof without complaint. In the light of all the facts, we are of opinion that, notwithstanding that implement might not have been as safe as that which some other miners and operators employed for a like purpose, plaintiff must be held to have voluntarily assumed the risk incident to its use. The supreme court of the United States, in Railroad Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 1049, 34 L. Ed. 235, 241, speaking of the obligations resting upon employers of labor, says:

“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 employs or servant. But if the employs 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.”

Tbe doctrine thus announced exactly fits the case in hand. An essential prerequisite to the right of recovery is the fact that the defect in the machinery was unknown to the employé or servant. The facts of this case, as already carefully analyzed, show conclusively that plaintiff knew all about the alleged unfitness of the tamping rod. Certainly he knew as much about it as the defendants themselves could have known. In the case of Southern Pac. Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391, the supreme court exhaustively considers the subject now under discussion, and reviews many authorities, state and national, on the subject. In that case the plaintiff sought to recover from the defendant for injuries sustained by him by reason of an alleged defective and dangerous frog employed by defendant in the yard where plaintiff was at work. It was claimed that the defendant was negligent in using in its switches what is called an “unblocked frog” when it might have used some other and a safer kind. In that case, on page 152, 152 U. S., page 531, 14 Sup. Ct., and page 395, 38 L. Ed., the supreme court quotes with approval from a New York case (Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722) as follows:

“The defendant could not be required to provide himself with other machinery or with new apx>lianees, nor to elect between the expense of doing so and the imposition of damages for injuries resulting to servants from the mere use of an older or different pattern. * * * The general rule is that the defendant aeeeirts the service subject to the risks incidental to it, and where the machinery and implements of the employer’s business are at tba* time of a certain kind and condition, and the servant knows it, he can make, no claim upon the master to furnish other or different safeguards.”

The court, after citing many authorities to the same effect, concludes thus:

“The evidence showed that Seley had been in the employ of the defendant for several years as brakeman and as conductor of freight trains; that his duty brought him frequently into the yard in question to make up his trains; that he necessarily knew of the form of 1’rog there in use; and it is not shown that he ever complained to his employers of the character of frogs used by them. He must, therefore, be assumed to have- entered and continued in the employ of the defendant with full knowledge of the dangers asserted to arise out of the use of unblocked frogs.”

It is said in Kohn v. McNulta, 147 U. S. 238, 241, 13 Sup. Ct. 298, 299, 37 L. Ed. 150, 152, in a case where defendant company was sued for injury to plaintiff occasioned by the use of cars having bumpers of unusual length, which defendant received from another road, as follows:

“It is not pretended that these ears were out of repair or in a defective condition, but simply that they were constructed differently from the Wabash cars, in that they had double deadwoods or bumpers of unusual length’ to protect the drawbars. But all this was obvious to even a passing glance, and the risk which there was in coupling such ears was apparent. It required no special skill or knowledge to detect it. The intervener was no boy, placed by the employer in a position of undisclosed danger, but a mature man. doing the ordinary work which he had engag'ed to do, and whose risks in this respect were obvious to any one. Under those circumstances, no assumed the risk of such an accident as this, and no negligence can be imputed to the employer.”

See, also, Railroad Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560.

Numberless cases of this kind might be referred to, hut the foregoing are sufficient to show that the rule which we apply to this ease has been for a long time firmly established by the court of last resort. Applying the maxim, “Volenti non fit injuria,” we are constrained to hold that, under the facts of this case, plaintiff was not entitled to recover, and that the trial court erred in not giving an instruction to that effect at the close of the case. The judgment is reversed, and the cause remanded for a new trial.