Dunn v. Great Lakes Dredge & Dock Co.

Brooke, J. (after stating the facts). Did plaintiff assume the risk? It is conceded by plaintiff’s counsel, that if the danger was apparent it must have been anticipated by plaintiff, and if he had express or implied notice of it, he assumed the risk of his injury. We think that the danger was apparent, and should have been apprehended by plaintiff. It must be remembered that the shovel was not at rest when he assumed the dangerous position. It was engaged in “rooting” according to plaintiff’s testimony, but the testimony of his witness O’Donnell is: “If I remember, we had not been rooting with the shovel in the pit just before we started to load this one car. I know this car was not the first on that train to be loaded, and I could not say which one it was.” It is clear that, whether “ rooting ” or regularly loading, the machine was being operated, as plaintiff knew, and in view of the intermittent character of its operation, which was likewise known to plaintiff, we think he must [554] have apprehended that at any moment the dipper would be elevated and its load discharged. He was acquainted with the fact that rocks occasionally fell from the dipper outside the cars and upon the tracks, when the dipper was emptied. The learned circuit judge was correct in holding that plaintiff assumed the risk incident to his employment, and that his injury resulted from an event which he had every reason to apprehend. Under the circumstances of this case, did the defendant owe to the plaintiff the duty of warning him that at any moment the dipper might be raised and dumped ? It is conceded that it was not the duty of any member of the shovel gang to give such warning, and that the shovel was operated without negligence, and in the usual manner. Upon whom, then, did this alleged duty rest ? It is urged that it rested upon Kelly, plaintiff’s foreman. Passing the question as to whether or not Kelly was a fellow-servant of plaintiff, let us inquire into the relative positions of Kelly and plaintiff, and their knowledge of impending danger at the moment of the accident. Kelly stood within six feet of plaintiff; he had no control of the operations of the shovel, and no knowledge of the time when the dipper would be raised and dumped. It is apparent, from the record, that the shovel makes a different noise when the dipper is being elevated. That noise was heard by plaintiff and accepted by him as a warning, and he attempted to escape. He testifies: “I started to run to get out of the way, because I heard the noise of the shovel.” He succeeded in taking two or three steps before the rock hit him. It is clear that the only knowledge Kelly had of the impending or actual elevation and discharge of the dipper was the identical knowledge which plaintiff himself possessed. Under such circumstances, the only warning he could give would be to advise plaintiff of a fact with which he was already familiar. It is unnecessary to discuss the cases of Town v. Railroad Co., 84 Mich. 214 (47 N. W. 665), Kinney v. Folk [555] erts, 78 Mich. 687 (44 N. W. 152), Pecard v. Sugar Co., 153 Mich. 84 (116 N. W. 532), and Barto v. Steel Co., 155 Mich. 94 (118 N. W. 738), relied upon by plaintiff. All are clearly distinguishable upon the facts from the case at bar. To the claim of the plaintiff that defendant should not have operated the shovel without warning, it is sufficient to say that he knew that it was operated without signals, and he accepted his employment and performed his duties with this knowledge. As to the duty of masters in such cases, we refer to 4 Thompson on Negligence, §§ 4067 and 4068; Baldwin on Personal Injuries (2d Ed.), p. 425 etseq. See, also, Michigan Cent. R. Co. v. Austin, 40 Mich. 247; Jacobs v. Railway Co., 84 Mich. 299 (47 N. W. 669); Lang v. Transportation Line, 119 Mich. 80 (77 N. W. 633); Lynch v. Traction Co., 153 Mich. 174 (116 N. W. 983, 21 L. R. A. [N. S.] 774). The obligation on the part of the master to provide a safe place is not imposed, where dangers arise by reason of changing conditions in the progress of the work. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), and cases there cited; Swanson v. Railway Co., 68 Minn. 184 (70 N. W. 978); Finalyson v. Milling Co., 67 Fed. 507, 14 C. C. A. 492; City of Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Roytio v. Litchfield, 113 Fed. 240, 51 C. C. A. 197. The place where plaintiff was injured was a safe place, except as it became unsafe through the operation of the shovel. He was familiar with the character of that operation and, through his counsel, admits that it was operated without negligence. We must hold that a verdict was properly directed for defendant. The judgment is affirmed. Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.