Shields v. W. R. Grace & Co.

McBRIDE, C. J. 1. The principal objection here is as to the court’s action in sustaining an objection to testimony offered by defendant, that it was not usual or ordinary practice to use nets or hatch covers to safeguard employees working in the hold of a ship. We do not see how this was material, in view of the testimony which shows conclusively that the nets, if they were on board the ship, were not placed in position, and that the hatch covers, or other devices, were not placed in a position to protect plaintiff, and if they had been so placed the accident could not have happened. Evidence of what is customary in the way of protective appliances is frequently admitted as tending to indicate whether or not the employer used reasonable diligence in that regard, hut the fact that other employers in the same business are accustomed to omit or dispense with necessary and obvious safeguards, does not tend to prove the exercise of ordinary care or diligence by the defendant. In other words, a custom which habitually disregards the safety of employees, no matter how long continued or. how general, can never ripen into reasonable care: Hamilton v. Des Moines Val. R. Co., 36 Iowa, 31, 38; Austin v. Chicago etc. R. Co., 93 Iowa, 236 (61 N. W. 849); Douglas v. Chicago etc. R. R. Co., 100 Wis. 405 (76 N. W. 356, 69 Am. St. Rep. 930). — 200 — 2-4. In view of the fact that protective apparatus was obviously necessary and would have lessened the liability to accident, and that such apparatus was at hand and ávailable to defendant, we are not disposed to hold that the custom of other employers, in the same business to neglect to use similar precautions, is any evidence tending to absolve defendant from the imputation of negligence in this particular. "While it may be true that it was customary for the longshoremen to arrange the apparatus furnished for loading the grain, it does not follow that this includes the duty of searching for and applying apparatus which will render that labor more secure. That it is the duty of the master to use reasonable care to furnish safe appliances for performing the work and a safe place in which to work, requires no citation of authorities. That this duty is nondelegable is also well established. 5. This is not a case where plaintiff, or his fellow-workmen, were furnished with protective appliances and failed to use them. Indeed it is not shown that when plaintiff went to work the same occasion for their use existed that arose when another gang was put to work on the lower deck. With a single gang there was little or no danger of accident, but the evidence shows that some time after plaintiff’s gang had gone to work, a second gang was put to work loading from another deck, but using the same hatchway to convey the wheat into the hold. The danger was greatly increased, if not absolutely created, by the addition of the second gang of men after plaintiff had gone to work. Under the circumstances we think the negligence of defendant in failing to provide and have installed the necessary safety appliances and their responsibility therefor is fully established, unless plaintiff can be said to have assumed the hazard of the — 201 — situation, which proposition we will now proceed to discuss. 6-10. This action is not brought under our Employers’ Liability Statute (Laws 1911, p. 16), but is at common law and must be so considered. The rule of assumption of risk with its exceptions and modifications may be stated as follows: 1. The servant assumes all the ordinary risks incidental to the employment in so far as those risks are known to him at the time of his employment, or could have been readily discovered by the exercise of reasonable and ordinary care for his own safety, without regard to whether or not those risks were created by the negligence of the master. 2. The servant does not assume the risk of dangers, which are not obvious, or are latent, or not readily discernible, by the exercise of ordinary care on his part. 3. He does not assume the risks arising from subsequent, special, or unforeseen negligence of the master. 4. He does not assume risks of temporary conditions, which are unusual and extraordinary, when these conditions arose after his employment and he is without knowledge of them, or they are not obvious to a person exercising ordinary care. 5. He does not assume the risk of injury, by reason of the negligence of a fellow-servant where such negligence concurs with the negligence of the master, to such an extent that but for such concurrent negligence the injury would not have happened. 6. The mere fact that the servant observed the physical conditions existing at the time of his employment, does not of itself imply an assumption of the risks of such conditions unless they were so obvious as to impress their danger upon the mind of a person of ordinary care and prudence. An employee must — 202 — not only be aware of the conditions bnt must understand and appreciate the risk. In view of these fundamental rules, let us consider the testimony._ The conditions were unusual in that this was what the witnesses call a “hurry-up job”; that is, one requiring more than usual haste to complete it. It was also out of the ordinary from the fact that two gangs of men were loading through the same hatchway. It is also different from the ordinary case in that conditions were changed by putting an additional gang to work upon the lower deck after plaintiff had gone to work, and, as shown by the uncontradicted testimony of Schroeder, a witness for plaintiff, the injury was occasioned by the falling of a sack of grain sent aboard by the conveyor to the chute operated by the latter gang. It may be said in passing that the unusual conditions above described were not embraced in defendant’s rejected proffer of evidence, as to the custom in regard to the use of safety appliances. The offer was as follows: “Witness, if allowed to answer, would testify that it was not the usual or ordinary custom or practice in grain shipping circles, to use nets when loading over or across hatch openings to prevent wheat sacks from falling into the hold while being loaded; and witness, if permitted to answer, would testify that there were at hand a sufficient amount of hatch covers that might have been used by the employees, including the plaintiff, had they so desired, for the purpose of preventing wheat sacks from falling on the sliding-board or from the chute into the hold and that the strongbacks in the between-decks hatch openings, were placed and the covers were there on the between-deek hatch in 12 foot lengths, ready for placing over the hatchway of the between-decks in one or more sections.” — 203 — There was a further offer to show that the use of the hatch coverings, for the purpose of preventing sacks from falling into the hold, was not customary among shippers or loaders of grain. It will be observed that both these offers had reference to usual conditions and did not include the three unusual factors in the instant case, to which we have heretofore called attention. 11. To return to the question of assumed risk it will be noted that the risks in the present case were not the ordinary risks, but embraced other and extraordinary hazards. There is no evidence tending to show that plaintiff’s attention was ever called to the absence of protective appliances. He was not bound to make a special inspection to see whether they were there or in place. It was the master’s duty to make the place, where plaintiff was put to work, reasonably safe and plaintiff had a right to rely upon the presumption that such duty had been performed, unless the failure to perform it was so obvious that a reasonably careful and observant man would have discovered that fact without special investigation. We all know the' hold of a ship is not a place of “sweetness and light,” and that the surroundings are not usually conducive to the perception of things by casual observation. Plaintiff was there to stow cargo not to investigate conditions, and there is nothing to indicate that, in the position where he was placed and the necessity he was under of performing rapid and efficient work, his attention would have been directed to the absence of necessary protective apparatus. It will also be observed that the accident occurred by reason of a change of conditions which arose after he began his employment. The hazard was increased by reason of another gang being put to work at the — 204 — same hatchway while plaintiff was below and engaged in his labor. He had a right to assume that the employer had provided against this new hazard by proper precautions, and was not bound to quit his work to make inquiries on that subject. While, theoretically, a laborer is a free agent, at liberty to examine and guard against danger occurring, or liable to occur, in the course of his employment, and to demand requisite protection, or quit the employment or take the consequences of remaining, it is common knowledge that such a theory is to a great extent impracticable in the present busy crowded age. His freedom to select his employment is abridged by the constantly increasing numbers who must work or go hungry, and his risks are increased by the immense pressure of a tremendous commerce and the complicated methods of handling it. Under the pressure of competition f'or employment and the necessity of maintaining his place as a satisfactory laborer, he has little time for observing his surroundings, or taking or even demanding of his employer, those precautions for his safety which a human regard for his welfare ought to be furnished without demand. These and like considerations have, no doubt, had their influence with the most enlightened and progressive jurists, in declaring much less stringent rules in regard to assumption of risk, than prevailed in the earlier history of jurisprudence where competition in labor was less strenuous and the duty of protecting the laborer was less clearly recognized by the courts. An enlightened public sentiment has brought about the enactment of Employers’ Liability Statutes and, while they have not been extended to cover cases like the present, the common law has been gradually expanded by judicial decisions until the doctrine of assumption — 205 — of risk has been placed upon a reasonably fair basis, which only applies it to those cases where the laborer is held to have assumed those hazards which he would naturally observe and realize in the course of his employment, permitting him to assume that all other risks had been reasonably provided against by his employers. 12, 13. We will now consider the alleged errors in respect to instructions. Request (a) is faulty in that it makes no discrimination in the grade of employees. In a general sense an “employee” is one who renders service for another for wages or salary, and in this sense a person employed to superintend the work with power to employ and discharge hands and generally to represent the principal, is an employee. While it has been held by some courts that certain classes of persons acting as vice-principals are not employees within the meaning of the lien and bankruptcy statutes, yet it has never been held that such persons were not employees within the meaning of the term as here applied. The requested instruction would include the foremen in charge of the work here, who had power to hire and discharge laborers and who, under rules too well established to require the citation of authorities, are vice-principals. 14. Requests (b), (c) and (d) do not state the law as applicable to the case at bar. The plaintiff had a right to assume that reasonable precautions for his safety had been taken and act upon that assumption. The requests ignore these important factors in the problem. First, they do not require the important factor, that before plaintiff should be held to have assumed the risk, he should have known or by the exercise of ordinary diligence, might have known that it existed. They ignore the factor that before the plain — 206 — tiff could be held to have assumed the risk, he should also have known the necessary safety appliances were available. They ignore the fact that, it was not only the duty of defendant to have the appliances on hand and available, but to see that they were properly placed. 15. Request (e) is subject to the same criticism and also to the further objection that there is no evidence that the use of safety appliances was not practical, but on the contrary such evidence as there was on this subject indicates that such use was practical. 16. Instructions (f), (g), (h) and (i) given by the court are correct statements of the law as applied to this case, and we approve them. Instruction (g) is so exceedingly broad as to be doubtful, but it is in favor of defendant’s contention and could therefore work it no injury. We find no prejudicial error in the record. The verdict was for a moderate sum and in our opinion was justified by the testimony. The judgment is therefore affirmed. Affirmed. Bean, Johns and Harris, JJ., concur.