Owl Creek Coal Co. v. Goleb

210 F. 209, 127 C.C.A. 27, 1914 U.S. App. LEXIS 1991

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 5, 1914
• Docket: No. 3937
• Status: Published

Opinion

VAN VALKENBURGH, District Judge

(after stating the facts as above). - [1] With respect to the fourth affirmative defense, that the negligence, if any, which occasioned the injury was that of a fellow servant or fellow servants of the plaintiff, the ruling of the trial court is approved. Kirby was the only representative of the defendant corporation upon whom devolved the duties imposed by law upon the njaster. It is further urged that the Wyoming coal mining statute provides that a mining boss or foreman shall be licensed by-the mining department of the state of Wyoming, who in that capacity is charged with certain duties of inspection prescribed by law; that the operator of a coal mine fulfills the measure of his duty to his employés if he commits his work to licensed superintendents, and is not, in any event,, responsible for their acts or omissions in carrying out or failing to carry out the provisions of the statutes of the state of Wyoming. We think it unwarranted to place upon this statute, obviously intended to insure a greater degree of safety to mining employés, a construction that would in effect withdraw from them the protection of that reasonable care which the law imposes upon the master.

[2] The first, second, and third affirmative defenses were improperly excluded. Whether they completely satisfied all requirements for pleading assumption of risk and contributory negligence need not be decided. Under the statutes of Wyoming they were entitled to a liberal construction, “with a view to substantial' justice between the parties” (Travelers’ Ins. Co. v. Great Lakes Engineering Works Co. [C. C. A.] 184 Fed. 426, 107 C. C. A. 20, 36 L. R. A. [N. S.] 60); they were not attacked by special demurrer or appropriate motion before the trial (Kirkpatrick v. St. Louis & S. F. R. Co. [C. C. A.] 159 Fed. 855-860, 87 C. C. A. 35).

[3] Plaintiff interposed oral demurrers during the progress of the trial. If the pleas were in themselves insufficient, which we do not concede, the same sound discretion which entertained this dilatory attack should likewise have permitted, upon appropriate terms, the amendment offered; nor can we agree that the pleas were self-destroying because coupled with the denial of negligence on the part of defendant. That positive defense was obviously tendered by the general

' denial. In such case, its formal reiteration later should not operate to bar affirmative defenses tendered in good faith under a code framed with a view to substantial justice between litigants.

[4] Furthermore, it is conceded in the briefs that, where the assumption of risk is incident to the employment and arises out of the contract of hiring, it need not be specially pleaded. In Chicago, Burlington & Quincy Railroad Co. v. Shalstrom, 195 Fed. 725, 115 C. C. A. 515, this court said:

“The agreement of a servant to assume the ordinary risks of his employ-ment and the extraordinary risks thereof that are known * * * inheres-in and is an inextricable part of his contract of employment, and, when the latter is-proved or admitted, the assumption of these risks is proved, and no-pleading or proof on the part of the defendant is necessary to establish it.”

There can be no doubt that the duty of exercising reasonáble care-to provide a reasonably safe place to work, as applied to the particular nature of the work in hand, devolves in all cases upon the master; but it is equally true that the servant may and does assume certain risks, and may be bound, in proper degree, by his own negligence contributing to the injury.

[5] This court has repeatedly held that a servant by entering or continuing in the employment of a master, without complaint, assumes the risks and dangers of the service which he knows and appreciates, including those which are incident to the employment and are contemplated in the contract of hiring, and those which arise from the failure of a master fully to discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and reasonably safe appliances to use. United States Smelting Co. v. Parry (C. C. A.) 166 Fed. 407, 92 C. C. A. 159; Chicago, B. & Q. R. Co. v. Shalstrom (C. C. A.) 195 Fed. 725, 115 C. C. A. 515; Glenmont Lumber Co. v. Roy (C. C. A.) 126 Fed. 524, 61 C. C. A. 506; St. Louis Cordage Co. v. Miller (C. C. A.) 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551; Burke v. Union Coal & Coke Co. (C. C. A.) 157 Fed. 178, 84 C. C. A. 626; Lake v. Shenango Furnace Co. (C. C. A.) 160 Fed. 887, 88 C. C. A. 69; Maki v. Union Pac. Coal Co. (C. C. A.) 187 Fed. 389, 109 C. C. A. 221; Browne v. King (C. C. A.) 100 Fed. 561, 40 C. C. A. 545; Mississippi River Logging Co. v. Schneider (C. C. A.) 74 Fed. 195, 20 C. C. A. 390; Choctaw, O., etc., R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96.

In United States Smelting Co. v. Parry, supra, the rule is thus comprehensively stated:

“It is tlie duty of a master to exercise reasonable care to provide a reasonably safe working place for bis servant, and tbe latter is entitled to act upon tbe assumption tbat that duty bas been performed, unless tbe contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection to ascertain whether or not that duty bas been performed, but only to have due regard for what be actually knows and for what is so patent as to be readily observed by him, by tbe reasonable use of bis senses, having in view, bis age, intelligence, and experience.”

[6] Thus the duty of the master to provide a reasonably safe place is a positive obligation resting upon him, and he is liable for the negli-. gent performance of such duty, whether he undertakes that performance personally or delegates it to another. Nevertheless, it is competent for the master to impose and for the servant to accept, by contract or mutual understanding, the burden of inspection or examination of the appliances or places he is required to use, such as he is competent to make. 26 Cyc. 1104-1106, and cases cited.

[7] Where it is the servant’s duty, by the terms of his employment, •or by reason of the nature of the work, to inspect, or to inspect and keep in order, the machinery, appliances, or places for work, he cannot recover for injuries caused by defects which it was his duty to remedy ; and, where a servant assumes the duty of removing a known danger,, he'is guilty of contributory negligence if he fails to do so. 26 Cyc. 1252-1255; Baltimore & O. R. Co. v. Burris (C. C. A.) 111 Fed. 882, 50 C. C. A. 48.

[8] Where the work in which a servant is engaged is in itself dangerous, or where the servant knows that the method of work adopted involves danger, he is bound to exercise ordinary care to avoid injury therefrom; accordingly a servant assumes the ordinary and usual risks incident to his employment, such as mining or excavating, the existence of which are known to him. Choctaw, O. & G. R. Co. v. Holloway (C. C. A.) 114 Fed. 458, 52 C. C. A. 260. - In Baltimore & O. R. Co. v. Burris, supra, the Circuit Court of Appeals for the Sixth Circuit held that the question of whether, under the circumstances, the servant assumed the risk or suffered from his own failure to provide against danger was properly for the jury and not to be declared as matter of law. In view of the primary duty of the master to exercise reasonable care to provide a reasonably safe working place for. his servant, where it is claimed that the burden of inspection or examination of the appliances or places to work has been imposed upon the servant, it must satisfactorily appear that this was done by contract or mutual understanding, or inhered in the very nature of the employment and of the work which the servant undertook to perform.

[9]' It is, of course, conceded that, where the plaintiff’s evidence discloses that he was guilty of contributory negligence, the defendant has a rig-ht to take advantage of such defense without specially pleading the same. Chicago, B. & Q. Ry. Co. v. Cook, 18 Wyo. 43-48, 102 Pac. 657; Chicago, G. W. Ry. Co. v. Price (C. C. A.) 97 Fed. 423-430, 38 C. C. A. 239; Lake v. Shenango Furnace Co. (C. C. A.) 160 Fed. 887, 88 C. C. A. 69.

[10] It is equally well settled that, upon the issue of negligence in the performance or omission of an act, evidence of the ordinary practice and the usual custom, if any, of ordinarily prudent and intelligent persons in the performance,-under the same or like circumstances, of the same, or like acts, is competent. Lake v. Shenango Furnace Co., supra; Canadian Northern Ry. Co. v. Senske (C. C. A.) 201 Fed. 637, 120 C. C. A. 65; Mississippi River Logging Co. v. Schneider (C. C. A.) 74 Fed. 195, 20 C. C. A. 390.

In the case at bar, from the testimony of the plaintiff, of Kirby, the pit boss, and of the witness Morgan, the secretary-treasurer of the Miners’ Organization, an issue of fact was raised, which, under the foregoing principles, should have been submitted to the jury, whether, either as an incident of his employment or by virtue of the orders issued to him, it was or was not the duty of the plaintiff, in conjunction with others, to clean and make safe the place in which he was to work, and whether, if he proceeded with his work before the proper conditions of safety were established, he did not assume the risks involved, and .was not at the same time guilty of contributory negligence.

[11] All evidence which would bear upon the question of-the nature of plaintiff’s employment, what inhered in it and was incident to it, what plaintiff himself knew and appreciated, whether from his own experience, prevailing usages, or the warnings of others, was competent. Much evidence of this nature was tendered by the defendant and rejected by the court.-

[12] Where it clearly appears from the record that the. evidence offered and excluded was competent and of such materiality and weight that its exclusion might have caused injury to the party offering the same, nothing further or more formal is required. Atchison, T. & S. F. Ry. Co. v. Phipps (C. C. A.) 125 Fed. 478-480, 60 C. C. A. 314; Briggs v. Chicago & N. W. Ry. Co. (C. C. A.) 125 Fed. 745, 60 C. C. A, 513. By instructions, requested and refused, the court was asked to submit .the substance of these questions for the consideration of the jury.

[13] The charge, as given, did not cover fully the issues thus tendered. It is true the jury was told that plaintiff would be bound to take notice of such dangers as were obvious and could and would have been readily seen by the exercise of ordinary care, but this does not include such as inhered in the very nature of the employment, against •which defendant claimed it was plaintiff’s duty to provide, and the existence of which he might well have been presumed to know and appreciate. He himself but a few hours previously had prepared the place for blasting. In the morning he found it in the condition to be expected. It had not been cleared of the coal that had been shattered and loosened, some of which was still hanging and ready to fall. This was the usual condition at this stage of coal-mining operations.

[14] There was ample evidence tendered to the effect that in such cases it was a part of plaintiff’s duty to clear and malee safe, from such incidental dangers, the place in which he was to work; and it was the testimony of defendant’s foreman that such were the orders issued to him. This does not amount to a delegation of the duty of the master in the sense in which such delegation of duty is prohibited. It involves the right of the master “to impose and for the servant to accept, by contract or mutual understanding, the burden of inspection or examination of the appliances or places he is required to use, such as he is competent to make.” Notwithstanding his complete familiarity with such situations, and his full knowledge and appreciation of the dangers which attend such operations, his own testimony discloses that he went to work without looking about and without maldng any examination or test of roof or walls. Under such circumstances, it might well be held that he assumed the risks there present and contributed to his injury by his own negligence; at least such matters should have been considered by the jury under appropriate instructions.

Because, in our opinion, defendant was denied a full and complete presentation and submission of its defenses, the judgment below is reversed, and the case remanded, with directions that a new trial be granted.

HOOK, Circuit Judge, concurs in the result.