Heathcock v. Milwaukee-Platteville Lead & Zinc Mining Co.

Oassoday, 0. IT. Tlie facts are undisputed. Tbe only controversy is as to inferences and conclusions to be drawn from admitted facts. Tbe passageway from tbe foot of tbe stairs — three or four feet from tbe northwest corner of tbe open shaft — to tbe boiler room was close by tbe side of tbe open shaft. That opening was five feet one way and six feet tbe other way, and bad been level with tbe surface of tbe ground from March, 1903, to the time of tbe accident. Such passageway between tbe west side of tbe opening and tbe building was less than six feet wide, and tbe passageway between tbe east side of tbe opening and tbe building was only three and one-balf feet wide; and each of such passageways came to the sheer or perpendicular edge of tbe shaft. In going from tbe foot of tbe stairs to tbe boiler room it was necessary to pass over one or tbe other of such passageways. Which of tbe two tbe deceased passed over at tbe time of tbe accident does not appear. Tbe conditions at tbe opening of tbe shaft appear to have been substantially tbe same from April 22, 1903, to tbe time of tbe accident. For fifteen days prior to bis death it was tbe duty of tbe deceased, at least four times a day, to go from tbe foot of tbe stairs mentioned to tbe boiler room by one or tbe other of tbe passageways described. During tbe time tbe deceased worked down in tbe mine be went to bis work down through tbe shaft in question and came from bis work up through the same shaft. At tbe time of tbe accident be bad necessarily become perfectly familiar with tbe situation at tbe mouth of tbe shaft. In fact, it was open and obvious to any person looking at it. Tbe trial court was certainly justified in finding, in effect, that tbe space between either side of the open shaft and tbe side of tbe building was so limited and narrow as to be dangerous to a person passing over tbe same; and that in tbe light of tbe — 53 — attending circumstances such, danger ought reasonably to have been foreseen and guarded against by the defendant’s officers. The movements of men along such passageways, under such circumstances, were necessarily attended with more or less hazard. A person passing over such a narrow space, with the open shaft 100 feet deep from two to four feet from him, was necessarily exposed to the hazard of a misstep, an unexpected jar, or a sudden diversion, which would be liable to terminate in death. The judgment in this case is based upon the failure to guard against such danger by the officers of the company. Such danger ought reasonably to have been foreseen by the deceased as well as the officers of the company. The trial court did not so specifically find, but, in the opinion filed in the case, it is stated that the danger of the unguarded shaft was obvious to the deceased, at least from the time the steam hoist was put in, April 22, 1903, and that such danger was one of the risks of the employment which he assumed, and that such assumption continued until seven days before his death, when he threatened to quit work unless the opening of the shaft was guarded, and the deceased was then assured by the defendant’s superintendent that the place would be fixed. Thus it appears from the findings of the court that the deceased had known of the conditions at the mouth of the shaft, where he was at work daily, for more than forty days prior to making any complaint, and that for eight days of that time he had charge of the hoist, and during those eight days he passed over the dangerous places described, going to and coming from the boiler room, at least eight times a day. The court held that the deceased had the right to rely upon such assurance for a reasonable time and that during such reasonable time such assumption of risk was suspended, and that sudh danger to him was not so obvious and immediate that it oould be said, as a matter of law, that to continue such work was inconsistent with reasonable prudence on his part. Eor the purpose of this appeal we assume that the trial court was — 54 — justified in holding that the deceased had the right to rely for a reasonable time upon such promise of the superintendent without himself assuming the risk of the danger. The question recurs whether the deceased was justified, under the circumstances, in relying upon such promise for the period of seven days. While the adjudications are not uniform, yet the better opinion, and the one most in harmony with the decisions of this court, is that the servant is justified in remaining only for such a time as is reasonably sufficient for the master to make the repair or remove the danger. Thus, it is held in a well considered federal case in the circuit court of appeals that: “A master is liable for an injury to- a servant, resulting, from an obvious defect and known danger, where the servant relied on an express or implied promise by the master to make repairs, for such time as would be reasonably required to repair the defect, but no longer.” Detroit Crude-Oil Co. v. Grable, 94 Fed. 73, 78, 36 C. C. A. 94. So in Illinois it was held that: “The reasonable tune for which a servant is entitled to-remain in service after his master’s promise to repair defects or remedy dangerous surroundings -is such time as would be reasonably sufficient for the master to fulfil his promise.” Illinois S. Co. v. Mann, 170 Ill. 200, 48 N. E. 417. To the same effect: Gunning System v. Lapointe, 212 Ill. 274, 72 N. E. 393; Dowd v. Erie R. Co. 70 N. J. Law, 451, 57 Atl. 248; Hough v. Railway Co. 100 U. S. 213, 225. Thus it was held by this court that if the servant “continues in the service for a time longer than it is reasonable to allow for the performance of the master’s promise he will be deemed to have waived his objection and assumed the risk.”' Stephenson v. Duncan, 73 Wis. 404, 41 N. W. 337. So in a later case in this court it was said: “When an employee notifies the master of a special risk,, and objects to continuing the work under the existing condi — 55 — tions, and is induced to continue such work by a promise to remove tbe danger within a reasonable time, then for such time the employee is not presumed to assume such risk.” Erdman v. Illinois S. Co. 95 Wis. 6, 12, 69 N. W. 993. In a still later case it is said, in effect, that the unwillingness of an employee to continue work at bis own risk with defective appliances “must be overcome temporarily by a promise to remove tbe danger witbin a reasonable time.” Yerkes v. N. P. R. Co. 112 Wis. 184, 188, 88 N. W. 33. Tbe question to be determined, therefore, is whether seven days was more than a reasonable time witbin which to guard tbe open shaft and thus remove the danger. What is a reasonable time to remove a danger in any given case must, from the nature of things, depend upon the facts and circumstances of the-particular case. What would be a reasonable time in one case might be very unreasonable in another case. This might be illustrated by reference to the facts in numerous cases which might be cited. In the latest Illinois case cited (Gunning System v. Lapointe, supra) it was held: “The cases where a promise by the master to repair suspends the servant’s assumption of risk are those where particular skill and experience are necessary to know and appreciate the defect and its danger, or where machinery or materials are used of which the servant can have but little knowledge.” This court has said that the principle that an employee is relieved of the assumption of the risk by the promise of the master to remove the danger is usually applicable “to machinery or tools which are .found to be dangerously defective.” Showalter v. Fairbanks, M. & Co. 88 Wis. 376, 382, 60 N. W. 257, The distinction is pointed out in the Erdman Case, supra. Stephenson v. Duncan, supra, which was referred to and apparently relied upon by the trial court, came to this court on an appeal from an order overruling a demurrer to the — 56 — complaint and the order was reversed on the ground that the complaint failed to state a cause of action in favor of the employee and against the master, who had promised to remove the danger about ten days prior to the accident. The plaintiff was employed in operating the defendant’s shingle mill, which was alleged to be in an unsafe condition in that the saw was uncovered and projected over its frame partly across the narrow passageway along which he was obliged to go to tighten and loosen the belt. The removal of such danger might have required the readjustment of a considerable portion of the machinery in the mill and involved scientific skill and knowledge and required more than ten days to fulfil the promise; and yet this court said that the complaint might have been held to state a good cause of action had it not also alleged that “the defendant had ample time and opportunity, and was abundantly able, to repair and put in a safe condition the machinery and apparatus between the time the plaintiff informed him of its defects and the time when the plaintiff was injured, but neglected and failed to do so, as was his duty, for the protection of the plaintiff.” And this court then said: “This allegation fairly implies that the plaintiff continued his employment beyond the period of time within which he might reasonably expect the defendant would keep his promise and put the machinery in proper condition.” What was thus alleged in the complaint in that case by implication, is here established by the undisputed evidence in this case. The work of guarding the mouth of the open shaft was very simple and manifestly could have been effectively performed by an unskilled common laborer in not to exceed a half a day. There was abundance of materials suitable for constructing a barrier or protection around the mouth of the shaft, and any of the men around there in the employ of the defendant could easily have performed the work. We must hold that, after the defendant’s unreasonable delay in removing the danger, the deceased must be regarded as having again — 57 — assumed the risk of tbe employment, tbe same as be bad during tbe forty days before be threatened to quit. By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded witb direction to dismiss tbe complaint.