Wurtenberger v. Metropolitan Street-railway Co.

The opinion of the court was delivered by Smith, J. : It will be noticed from the testimony of plaintiff below, set out in the statement, that he and his fellow workmen asserted that the arrangement of the hydraulic jack rendered it unsafe when it was exerting force against the iron beam. They hesitated to go on with the work, but were directed by the foreman to proceed. The foreman knew the forcing capacity of the jack, and the workmen were ignorant of it. It cannot be held that knowledge of plaintiff below of the probable injurious result to him and the risk incurred from an obedience to the foreman’s command was obvious and apparent. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253.) He was a common workman, without experience in handling such appliances. His expressed fears that more pressure would cause the iron bar to fly out were overcome by the assurance of the foreman of its safety. The two were not on an equal footing. A reliance upon the superior [647] knowledge of the master, under the circumstances, was to be expected. The direction by the foreman to the men to go ahead and work was the best evidence to them then obtainable that the jack was safely adjusted. As to the apprehended danger, the master and servant did not agree. In Harder & Hafer Coal Min. Co. v. Schmidt, 104 Fed. 282, 285, 43 C. C. A. 532, 535, it was said: • . “Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where the nature of the menace is so uncertain as to cause discussion between the employees and the employer, with the result that the employer dissuades 'the employee of his apprehension ; and especially so where the particular employee injured is without any knowledge of its existence.” In the circumstances of the present case, there was a difference of opinion between Wurtenberger and the foreman with respect to the danger attendant on a further use of the jack, after the employee had doubted its safety. In view of this disputed question of safety, .it was proper that the jury should determine whether the workman was negligent. (Miller v. Union Pacific Ry., 12 Fed. [C. C.] 600.) It must be remembered that the hydraulic jack was a mechanical device of great dynamic energy, which could not be readily known to a common laborer working with it for the first time. Its capacity and power were known to the foreman of the defendant below. In Seeds v. Bridge Co., ante, page 522, 75 Pac. 480, a workman was told by a foreman to remain in a dan•gerous place and adjust a rope used for hoisting. He was injured’. The court said : .“We must further remember that he had just been •hurried to the work, had been .violently chided for too [648] great haste in getting away from this place of danger, had been told to remain there until sure that the fastening was secure, and had been informed by the foreman that he would tell the plaintiff when to get away. All this would have a strong tendency to make the plaintiff less observant of the dangerous surroundings, less critical as to unsafe conditions, and less competent to judge of danger to which he was exposing .himself, growing out of these surroundings and conditions.” (See, also, Stephens v. The Hannibal & St. J. Ry. Co., 96 Mo. 207, 9 S. W. 589, 9 Am. St. Rep. 336.) Plaintiff below testified that he believed what the foreman told him respecting the safety of the jack. The rule is that if the master orders the servant into a situation of danger, and in obeying the command he is injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. The degree of prudence exercised by the plaintiff below was a matter for the consideration of the jury. The demurrer to the evidence ought to have been overruled. The judgment of the court below will be reversed and a new trial granted. Johnston, C. J., Cunningham, Greene, Burch,. Mason, and Ateinson, JJ., concurring.