Roccia v. Black Diamond Coal Min. Co.

GILBERT, Circuit Judge, with whom concurred MORROW, Circuit Judge. The court below, in charging the jury on the subject of the dangers and defects in the mine, and the assumption of risk by the workmen therein, remarked: “The dangers and the defects must be so obvious and threatening that a reasonably prudent man would have avoided them, in order to charge the workman with contributory negligence or the assumption of the risk.” But it is contended that, [452] while this instruction correctly states the law applicable to the general subject of the assumption of risk by the workman, it was not given to the jury with reference to the precise situation in which, according to the evidence, the plaintiff in error was placed just prior to the accident, when he had discovered the dangerous situation of the place where he was injured, and had sent for and received the promise of assistance; and it is contended that the instruction which was in fact given with reference to the situation while the plaintiff in error was proceeding with the work in the expectation of promised assistance was error, for the reason that the court failed, in that connection, to submit to the jury the question whether a reasonably prudent man would have remained at the work under the circumstances. . In the case of District of Columbia v. McElligott, 117 U. S. 622, 6 Sup. Ct. 884, 29 L. Ed. 946, the Supreme Court has expressed the doctrine which, in our judgment, sustains the instructions given to the jury by the court below. In that case the plaintiff, who was in the employ of the District, was injured while at work on a bank of gravel. There was evidence tending to prove that he discovered that there was danger of the bank caving in, and sent to the supervisor of the District for more men to do the work, and for one man to watch the bank, and that he received the information that such assistance would be sent. Before the assistance arrived the bank caved in, causing his injury. The court said: “Assuming that the District might be responsible under some circumstances for injuries resulting from the negligence of its supervisor, it certainly would not be liable if the danger which the plaintiff apprehended from the beginning was so imminent or manifest as to prevent a reasonably prudent man from risking it upon a promise or assurance by the proper authority that the cause from which the peril arose would be removed.” The court then, after referring to the experience which the plaintiff had had in that kind of business, said: “And it was not implied in the contract between him and the District that he might needlessly or rashly expose himself to danger. Od the contrary, if liability might come upon the District for the negligence of its officers controlling his services, he was under an obligation to 'exercise due care in protecting himself from personal harm while discharging duties out of which such liability might arise. If he failed to exercise such care; if he exposed himself to dangers that were so threatening or obvious as likely to cause injury at any moment — he would, notwithstanding any promises or assurances of the District supervisor of the character alleged, be guilty of such contributory negligence as would defeat his claim for injuries so received.” Here are expressed the extent and limit of the rules which control the questions now under consideration. First, if the workman expose himself to dangers that are so threatening or obvious as likely to cause injury at any moment, he is, notwithstanding any promise of his employer, guilty of contributory negligence if he remain at the work. In other words, he assumes the risk of the danger which he knows and appreciates, and, if the danger be so obvious or threatening as likely to cause injury at any moment, he has no right to continue at such work in the expectation that promised assistance will be sent. This principle of law the decision formulates without qualification, and irrespective of what a reasonably prudent man would or would not have [453] done under-the circumstances. The opinion elsewhere goes further to say, in substance, that if the danger be not obviously threatening of present injury, but yet if it be so imminent or manifest as to prevent a reasonably prudent man from assuming it, even with the promise of assistance, the master will not be liable. Now, the court in the present case charged in substantial compliance with the first of these rules, and informed the jury that the plaintiff in error must be deemed to have assumed the extra hazard of the dangers which he knew or believed to be imminent, and that the defendant in error would not be liable for an accident resulting in his injury from a danger which he himself believed was imminent, and to which he voluntarily exposed himself, unless that danger was enhanced by the failure on the part of the foreman to keep his promise to send materials and men to his assistance promptly. There can be no doubt of the correctness of that charge as given. It is true that the court might properly have proceeded further, and might have instructed the jury that if they found that the danger, while not so threatening and obvious as likely to cause injury at any moment, was nevertheless so imminent and manifest as to prevent a reasonably prudent man from risking it on the promise of assistance, the defendant would not be liable. Such an instruction might have been requested by the defendant in error, and its defense to the action might have been aided thereby. But the fact that it was not given at the request of the plaintiff in error was not error of which he can complain. The jury must have understood from the charge that, if they found that the dangers were not so obvious or threatening as likely to cause injury at any moment, the defendant in error would be liable. The jury brought a verdict against the plaintiff in error, evidently upon their belief that the dangers were so obvious or threatening as likely to cause injury at any moment, and that he knew and understood the peril of remaining at work while awaiting the promised assistance. If, indeed, the danger was such, and he had knowledge of his danger, there was no occasion for the jury to inquire further. The obvious danger was his warning,, and the general rule applied to his case, that a workman assumes the dangers which are obvious to him. It is only where the dangers are of a character that is not obviously threatening, that it becomes necessary to inquire what a reasonably prudent man would have done, and to refer to a general standard by which the conduct of the workman, as of all workmen in like circumstances, should be governed. The charge as given to the jury was more favorable to the plaintiff in error than it would have been with the requested addition. It permitted the jury to return a verdict for the plaintiff in error, if they found the facts otherwise than as recited in the charge. The wisdom and the justice of the rule as laid down by the Supreme Court, and as followed by the trial court, is illustrated by the facts of the present case. Plaintiff in error was an experienced miner, and had been for years at work in the mine. It was his special duty to timber the mine and to look out for and remedy the very dangers which caused his injury. No one in the mine knew so well as he the perils to which in this particular occupation he was exposed. This is not a [454] case where an employé, unaware of the perilous nature of his employment, remains at work under a request for or promise of assistance of the master, nor is it the case of one who was under disability or was incapable of estimating the danger. The dangers were such as in his regular employment it was his duty to deal with. - They were confessedly visible and obvious to him. They were the natural result of the progress of the work of mining. The defendant in error received its knowledge and information of these dangers from the plaintiff in error. The court in this connection properly instructed the jury that, “when it is necessary, in order to remedy a condition of insecurity, the employer has the right to contract with men to go and do what is necessary, and the men who with knowledge of the peculiar danger accept the employment are to be considered as having assumed the extra risks.” Upon what theory of the law should the defendant in error be held liable, when it was true, as the jury must have found, that the injury to the plaintiff in error resulted from “an accident which he himself believed was imminent,” and that he “assumed the extra hazard” of the dangers which “he knew and believed to be imminent”? In Showalter v. Fairbanks, Morse & Co. (Wis.) 60 N. W. 257, the superintendent had assured an employé that there was no danger, and had told him to return to his work. The court held that the employé was not relieved of the assumption of risk. The court said: “Upon these facts we are clearly of opinion that the plaintiff must be held to have assumed the risk. He was of ordinary intelligence. He knew that trenches of this depth were liable to cave in. He knew that this very-trench had just partially caved in at a distance of a few feet. He came out of the ditch because of that very fact. He knew all the facts which the superintendent knew, and had fully as much experience as the superintendent. No expert engineer could have given him any additional information as to the probability of the ditch caving in. In fact, he was fully informed of the peril, and chose to continue his work. No principle is better established than that under such circumstances the risk is assumed. Naylor v. Railway Co., 53 Wis. 661, 11 N. W. 24; Johnson v. Water Co., 77 Wis. 51, 45 N. W. 807; Paule v. Mining Co., 80 Wis. 350, 50 N. W. 189. But it is said that the assurance of safety given by the superintendent, and the command to return to work, relieve the plaintiff of the consequences of his assumption of the risk. This is not the case where the employé is of full age and capacity, and knows the danger as fully as .the superintendent. Toomey v. Steel Works (Mich.) 50 N. W. 850; Linch v. Manufacturing Co., 143 Mass. 206, 9 N. E. 728; Kean v. Rolling Mills (Mich.) 33 N. W. 395, 11 Am. St. Rep. 492; Bradshaw’s Adm’r v. Railway Co. (Ky.) 21 S. W. 346. Plaintiff had the right to refuse to obey the order, and if he chose to obey he took the risk, of which he had full knowledge.” The judgment of the Circuit Court will be affirmed.