Van Kirk v. Butler

OPINION. HANNA, J. As indicated by the statement of facts the one proposition before this court for consideration is whether the complaint, as enlarged or amended by the ■opening statement of counsel for plaintiff states a cause of action. Counsel for appellee, in an able brief, takes issue with appellant’s position that the court ordered the complaint to be deemed amended to include the facts of the opening statement, and contends that an objection was interposed to such course of procedure. Counsel did object and stated as his reason therefor that he desired to meet the complaint when amended and could not proceed further at the time because he desired to be prepared to meet whatever allegations should be made. After some discussion between counsel and the court it would appear that counsel for appellee, in effect, withdrew his objection, and, subsequently, upon request again made by counsel for appellant, leave to amend was granted by the court, to which no objection was interposed by appellee. It is, therefore necessary to treat the complaint as amended, by the opening statement of facts, as was done in the district court, any other course would be unfair to appellant as presenting an issue different from that upon which the ease was decided in the court below. We, therefore, turn to the main question for consideration, i. e. the existence of the relation of master and servant being conceded, is there a breach of duty set out in the complaint and statement of facts, resulting from the negligence of the defendant and not growing out of a risk assumed by the servant in the course of his employment, or, in short, has a cause of action been stated ? The appellant stands upon the general rule that it is the duty of the master to exercise reasonable care and skill to the end that the place where he requires his servant to perform labor shall be as reasonably safe as is compatible with its nature and surroundings. 4 Thompson Neg. Sec. 3873. Appellee, while not questioning this general rule, and aside from his attack upon the sufficiency of the pleading, contends that a servant, engaging for the performance of specified services, takes upon himself the ordinary risks • incident thereto, and that the general rule requiring a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty toward them of keeping a building which they are employed in erecting in a safe condition at every moment ■ of the work, so far as its safety depends upon the due performance of that work by them and their fellows. It has been held that the doctrine of reasonably safe place does not apply to the construction of buildings or other situations where the character of the place is constantly changing, with the same force as it does to the completed structure or other permanent and fixed place. Lewinn vs. Murphy, 63 Wash. 356. Other cases could be cited to the same effect, but it is well settled, as stated by Labatt’s Master and Servant, Sec. 92.4, that where the instrumentality which caused the injury was still incomplete at the time of the accident, and the injured servant was engaged in the work of bringing it to completion, the question whether the master was in the exercise of due care is determined with reference to a lower standard than that which is applied in the case of instrumentalities which have been put into a finished condition and are in regular use in the normal course 'of business. . As stated by the same author, in the same section, in many cases the rule requiring the master to exercise ordinary care to provide a reasonably safe place to work for Ms servant, is held not to apply to eases in wlrich the work in which the servants are engaged is of such a nature that the conditions of the place are constantly changing. This text is supported by the case of Davis vs. Trade Dollar Cons. Min. Co., 54 C. C. A. 636; 117 Fed. 122, among others, which case is cited by appellee in his brief, in support of his contention upon the proposition that plaintiff’s complaint does not state facts sufficient to constitute a cause of action against the defendant. The consideration of the last principle stated, - without recognizing any qualification thereof, would seem to be conclusive upon the question before us for determination. Like so many other rules, however, the principle is not without its qualification. The theory of law upon which the principle is based, is that, as to the class of risks referred to, the risk is assumed by the servant upon the principle that it is an ordinary and natural incident of the work to be done. Labatt’s Master and Servant, Sec. 1177. 1 Therefore, we take it to be a true statement of the law, that if the facts of the case should disclose that the risk is not of an ordinary kind, even though arising in the course of the construction of the building, but was of an extraordinary character, the rule as to assumption of risk by the servant should not apply. And in this connection we find Labatt’s Master and Servant, at Section 1178, discussing the principle in the following language: “A servant is prima facie not chargeable with an assumption of extraordinary risks — risks, that is to say which may be obviated by reasonable care on the master’s part.” This, like every other element of the subject under consideration, seems to be be subject to still further qualification, and we find the same author, in Section 1179, declaring the principle that extraordinary risks are deemed to have been assumed by the servant if the risk was known to and comprehended by him. A- countless number of cases might be cited by us in support of these several legal principles enunciated. We have examined numerous authorities, and find that most of the cases have arisen in connection with accidents resulting from improper methods of carrying on the business, or from negligence in respect to the use and management of instrumentalities or materials. An extraordinary risk in the sense in which we use this term, is not one which is uncommon or unusual, in the sense that it is rare, but is one that arises out of unusual conditions, not resulting in the ordinary course of the business, as by reason of the master’s negligence. The reason why the doctrine of the servant’s non-assumption of extraordinary risk has arisen, as an exception to the common law rule of assumed risk, or accepted risk, as it is designated by some authors, may be said to rest primarily upon the consideration that as the master has control of the conditions which affect the servant’s safety, he is the party who ought in fairness to be held responsible if those conditions are not such as a prudent man would maintain under the circumstances. It is also said that extraordinary risks are not assumed because they are not the natural and ordinary incidents of the servant’s work. Labatt’s Master and Servant, Sec. 1181. We, therefore, find that there are two classes of risks referred to, namely, ordinary and extraordinary risks, and •Labatt’s Master and Servant, Sec. 1186a, summarizes the rule as to the assumption of risk in the following language: “The servant assumes all the ordinary risks of the service and all of the extraordinary risks — i. e., those due to the master’s .negligence — of which he knows and the dangers of which he appreciates.” This is a comprehensive statement of the rule which thus' qualifies the general rule that it is the duty of the master to provide a reasonably safe place for the servant to' work. Appellant b}r his statement of the case has sought to show that the condition out of which this injury grew was not an ordinary risk, but that the master personally in charge of the work, through his foreman, directed that the cross truss, which subsequently gave way, should be temporarily supported “on sticks or pieces of two by six timber until they were completed and ready for the iron rods”; that before the iron rods were installed, the work of putting on the roof proceeded, under direction of the defendant; that when the plaintiff and the foreman were .about to put in the iron rods, or truss, to support the cross piece, (that gave way) they were called away from this work and directed by the defendent himself, to complete some work in the front of the building, which work occupied two days, in the meantime, under direction of the master, additional weight had been piled upon “the weak spot in the rear” and when the plaintiff returned to continue the work of reinforcing the truss, temporarily supported as aforesaid, and while erecting a scaffolding to stand upon for the purpose, the supporting timber, or “stick” broke, allowing the truss in turn to break and resulting in the collapse of the building and the injury of the plaintiff. Thus appellant has endeavored to make out a case of negligence on the part of the master, who was defendant in the court below. It may be urged that the master could not have foreseen the result that followed from his departure from the plans, of construction which was but a temporary condition and that the defect in the construction, in this particular, was equally apparent to master and servant, and, therefore, assumed by the servant. 2 As heretofore stated, each case is dependent upon its facts and we have found it difficult to find analogous cases, although the following have some points in common with the present case, and, we believe, support the conclusion that the master is chargeable with knowledge of defects in material or appliances, even though such defects be latent, or not plainly and clearly observable, if by the exercise of reasonable care the master could have discovered same. Twomey vs. Swift, 163 Mass. 273, 39 N. E. 1018; Elynn vs. Union Bridge Co., 42 Mo. App. 531; Johnson vs. First Nat. Bank of Ashland, 79 Wis. 414; 24 Am. St. Rep. 722, 48 N. W. 712; Nat. Ref. Co. vs. Willis, 143, Fed. 107. The last case cited is one where a scaffold broke and may be considered as similar in point of logic to the case under consideration. The scaffold proved of insufficient strength, as did the truss which gave way under the load put upon it. The truss was designed by the plans to be reinforced by iron rods, but the master delayed the work of so doing and, it is said, directed the continuance of work upon the roof which resulted in piling up of weight upon the truss, temporarily supported, until it gave way. On the other hand, could the master by the exercise of reasonable diligence have discovered the defect? It is apparent from the facts alleged that he knew that the trusses were to be reinforced by iron rods or trusses and that he stopped this work of reinforcing at the point where the trouble afterwards developed and at the same time permitted and directed -the continuance of work which resulted in the extra weight over the unreinforced truss. This w.ould not seem to be a case of defective material as was the case in the scaffold referred to, but rather a deliberate course of procedure, out of the ordinary and in violation of plans for the building with every reason to anticipate some such result as occurred. This would at least amount to carelessness and negligence, and constitute a violation of the general duty to provide a safe place for the servant to work in. 3 It is our conclusion that the state of facts here presented for our consideration did not constitute an ordinary risk, but rather an extraordinary one resulting from the negligence of the owner and master, and as the case is now presented to us, it does not appear that the servant knew of the condition and therefore assumed the risk, for which reasons we necessarily conclude that the trial court was in error in directing a verdict for the defendant, the-judgment of the district court being, therefore, reversed, and the cause remanded for a new trial, and, IT IS SO ORDERED.