Maloney v. Florence & Cripple Creek Railroad

Mr. Justice Goddard delivered the opinion of the court: The rule that imposes upon an employer the duty to furnish a reasonably safe place for his employees to work in is not applicable to the facts in this case. This duty is imposed and enforced when the place is permanent in its character, and has been prepared or selected by the master himself, or by others upon whom have devolved the discharge of the master’s obligation in this respect; but does not apply where the servant is engaged in making a place safe that is known to be dangerous, or putting an insecure place in condition for the resumption of labor or use. In such case, the danger is necessarily incident to the work itself, and depends upon constantly changing conditions, and can only be guarded against,by the care of the servants engaged in its performance. In the case of Florence & C. C. R. Co. v. Whipps, recently decided in the circuit court of appeals, 138 [389] Fed. Rep. 13, which, involved the responsibility of this appellee for the death of one Whipps, who, while engaged in the same service, was killed at the same time, and under the same circumstances, and by the falling of the same rock, that killed Maloney and Allen, Judge Lochren, who delivered the opinion of the court, in distinguishing that case from those in which the rule as to “safe place” applies, used the following language: “In many eases of preparatory work to fit a place for its intended use, like the excavation along a mountain side of a cut for a railroad track, the work so prosecuted will make the place which was safe before dangerous to the servants, as their work progresses, from the liability of stone or earth to slide down the sides of the cuts so made by the same servants, who must be held to have assumed all such risks; # * * and in the removal of debris after some catastrophe or accident which has made the place unsafe and unfit for the use to which it has been devoted, and where the very object of the work is to clear away the wreckage and restore the place to a condition of safety and usefulness. If by such catastrophe a railroad used for the transportation of passengers, freight and mails is obstructed, the removal of the obstruction is a necessity admitting of no delay, whether the exigency arises in the daytime or at night; and servants employed, who undertake and engage in such work, necessarily assume the incidental risks.—Gulf, etc., Ry. v. Jackson, 65 Fed. 48, 12 C. C. A. 507; Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Porter v. Silver Greek, etc., Coal Co., 84 Wis. 418, 423, 54 N. W. 1019; Colo. Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 266, 40 Pac. 251; Carlson v. Railway (Ore.), 28 Pac. 497. The fact that the exigency causes the work to be done in the darkness of night and with insufficient lights does not [390] lessen the assumption of the risks of the servants.—Gulf, etc., Ry. v. Jackson, 65 Fed. 48, 51, 12 C. C. A. 507. * * * The defendant was not responsible for the catastrophe and wreckage which caused whatever danger there was in the situation, and under such circumstances the doctrine of ‘safe place’ had no application.” The same rule is announced in City of Greeley v. Foster, 32 Colo. 292, and in C. C. & I. Co. v. Lamb, 6 Colo. App. 255. The company, therefore, was not remiss in the performance of any duty in failing to furnish a safe place for the deceased to work in, and it is equally clear that under the existing conditions it would have been impracticable to prop or support the embankment so as to prevent the rock from falling. It only remains, therefore, to consider whether, in the circumstances of this case, the appellee was delinquent in the performance of any other duty it owed to the deceased. Counsel for appellants insist that it was incumbent upon appellee to have made a careful and diligent examination of the premises before the men were permitted’to work therein. There is no evidence as to what inspection, if any, was made by John McGrath, thp foreman of the section, during the afternoon; or what disclosure, if any, as to the result ascertained by such examination, or as to the condition of the premises, was made to the deceased. It does, however, appear that, in response to an inquiry by some one of the foremen, John McGrath stated to Miles McGrath in the presence and hearing of some of the men that he had examined it before dark, and it was all right. It was apparent to all, including the deceased, that no inspection other than that made by John McGrath, or some one employed with them in the common work, had been made, and with this [391] knowledge they entered upon the work. If he was negligent in his examination, it was the negligence of a fellow-servant of which they cannot complain, and the deceased had no right to assume that any inspection other than that by a fellow-servant had been made. Judge Lochren, in the opinion above referred to, in discussing this phase of the case, said: “Here all the servants, including the foremen and the roadmaster, were, when the disaster happened, engaged in the common work and enterprise of keeping the railway in proper condition for the passage of trains. The disaster caused an instant sudden emergency in the very work in which they were engaged. An emergency admitting of no delay — not even for daylight — certainly not for the summoning of the managing officers of the railway or of its engineers. The work to be done was simply the rough work of clearing the tracks of the fallen rocks, which the servants, under their foremen and roadmaster, were entirely competent to perform'. The circumstances and conditions must have made it plain to all that no inspection or precaution respecting the cliff was or could have been had except by such of the servants as were there while it was daylight. Under these circumstances the servant's who came later, as well as those who were there in daylight, assumed the risk of the employment they engaged in; and if John McGrath or Miles McGrath were negligent in representing the place to be safe, that was negligence of - fellow-servants.—Northern Pacific Ry. Co. v. Dixon, 194 U. S. 338, 343, 24 Sup. Ct. 683, 684, 48 L. Ed. 1006; Pennsylvania Co. v. Fishack, 123 Fed. 465, 59 C. C. A. 269.” Upon a careful consideration of all the facts disclosed by the record, we think the court below prop [392] erly directed a verdict in favor of appellee. Tlie judgment is therefore affirmed. Affirmed. Chief Justice Steele and Mr. Justice Bailey concur.