Brown v. Conners

Siebeokee, J. The appellant contends the court erred in submitting the case to the jury for decision, because the evidence fails to show that the defendant and his servants were guilty of any want of ordinary care which caused plaintiff’s injury. The trial court was of the view that the evidence tended to show that defendant’s representative, in charge of the business in which plaintiff was engaged as a laborer, failed to exercise ordinary care, and the court therefore submitted to the jury the inquiries whether or not the defendant was guilty ■of negligence in failing to furnish plaintiff a reasonably safe place in which to work, and whether or not he was guilty of negligence in failing to warn the plaintiff of dangers incident to plaintiff’s work and not open and obvious to a person of ordinary intelligence and knowledge while exercising ordinary care in the performance of such service. It is manifest from the facts established by the evidence that from its nature the work ■of unloading freight from the boat was accompanied by risks [407] •and hazards springing from the constantly changing and shifting conditions that arose as the work proceeded. Under such •circumstances it is impossible for the master to follow up the progress of the work and keep the changing working place free from the hazards and dangers incident fc^the progress of the work, and he is therefore not subjected in law. to liability for the injuries a servant may sustain on account thereof. The •danger of injury to the servant under such conditions springs from the continual changes produced by the work and therefore naturally inherent in and incident to the employment, •and the servant is presumed to know and assume them as risks of the employment. See note to Citrone v. O’Rourke E. C. Co. (44 Colo. 472, 98 Pac. 634) 19 L. R. A. n. s. 340. It is •obvious from the situation presented in the instant case that the danger to plaintiff’s safety from the falling steel sheets was a transitory peril, which was occasioned by and arose from "the changing conditions incident to the execution of the work in which plaintiff was engaged, and hence it is within the ex•ception to the rule by which the master is required to furnish the servant a reasonably safe working place. The facts of ‘the case show that the peril complained of was caused by the progress of the work of unloading the boat and that the case is within the rule of Strehlau v. John Schroeder L. Co. 142 Wis. 215, 125 N. W. 429, and the eases cited in the opinion •on page 217. It must be said here as declared in that case: “In the light of these authorities it is entirely obvious that the conditions which caused the place where plaintiff worked 'to be unsafe were not provided by the master, but had been •created by the very force of men of which plaintiff was one.” All of the men engaged to unload the boat were engaged in the common work of removing the freight from the boat. To ■accomplish the task, the condition of their working places had 'necessarily to be changed and adjusted continually to meet the varying exigencies of this process. It is obvious that no foresight could provide against the dangers springing from the [408] conditions incident to such, changes and that no warning could he given. In such an employment the employee of mature-years and intelligence must be held to appreciate the hazards- and risks created by the changing conditions of his work, and it follows that he assumes them as a part of the service. It is urged by the respondent that the foreman’s knowledge-of the danger was superior to that of the plaintiff. We find no basis for this claim. The situation and arrangement of the pile of sheet steel at which he was working and the relation of the working place thereto were certainly as well known, to the plaintiff as to the foreman. They were open and obvious to the eye of every person engaged in the work of unloading the boat and could certainly be noticed and comprehended-, as readily by the plaintiff as by the foreman. Indeed, it appears that the plaintiff was so circumstanced that the dangers-of which he complains could be readily observed by him and his attention would be as readily attracted to them as that of the foreman. Nor is there any force in the claim that the-plaintiff, whose attention was directed to the performance of his work under the urgent orders of the foreman to make-haste, was in a less favorable position than the foreman for-observing the danger of the pile of sheet steel falling over. This danger was so open and obvious that there would be no-marked difference in the opportunities of the plaintiff and the-foreman for observing it. A mere glance at the situation and condition of things disclosed them all, and informed the observer of the condition of the place wherein the work was to-be done, the nature of the piling of the sheet steel, and the-danger of its falling over from the movements of the boat caused by the action of the water or any other force. To require the defendant to give warning of such a condition would be to compel the defendant to protect the plaintiff from dangers concerning which it must be held the plaintiff, in the exercise of reasonable care, would be fully as well informed as was the defendant. We find no evidence establishing defend [409] ant’s liability, and tbe motion to direct a verdict for tbe defendant sbonld bave been granted. By the Court. — Judgment reversed, and tbe cause remanded with directions to grant defendant’s motion to direct a verdict and to dismiss tbe complaint.