Reed v. Stockmeyer

Citation74 F. 186
Decision Date04 May 1896
Docket Number160.
PartiesREED v. STOCKMEYER.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

If a servant, of full age and ordinary intelligence, upon being required by his employer to perform duties more dangerous or complicated than those embraced in his original hiring undertakes the same, knowing their dangerous character although unwilling, from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action therefor against his employer.

This suit was commenced by ludwig Stockmeyer, the defendant in error, to recover damages for personal injuries incurred while in the service of David Reed, the plaintiff in error. The suit was brought in the circuit court of the county of Lawrence, state of Indiana, and duly removed into the court below upon the ground of diverse citizenship of the parties. The complaint originally filed charged that one Drehoble was at the time of the accident, May 6, 1892, in charge of the quarry operated by the plaintiff in error, as superintendent and foreman in the absence of one Robert Reed, the general superintendent; that Stockmeyer, the plaintiff below, was engaged as scabbler in the quarries,-- that is, one who prepares stone for the operation of hewing by knocking off the prominences on the surface; that Drehoble attempted to turn and cause to be turned a certain block of stone in the quarry; that the customary and only safe way of quarrying is to drill the stone at the base of the cut on the outside before undertaking to turn the blocks over, and that, in violation of his duty in this respect, Drehoble, the superintendent and foreman, negligently and carelessly undertook to turn and throw over the stone without so drilling, and it was then discovered by Drehoble that there were one or more dry seams running through the stone, thereby rendering the same liable to break and come apart when moved or handled; that, notwithstanding the fact that Drehoble had full knowledge of the dangerous and unsafe condition of the stone, he directed and ordered Stockmeyer, who was then scabbling at another part of the quarry, to work at and immediately below the outside base of the rock so sought to be turned, and to clean away dirt and rubbish from the same so that the stone might be turned or thrown over; that Stockmeyer, under orders from Drehoble, and without knowledge of the dangerous and unsafe condition of the stone, proceeded to work at the base of the rock, and while so doing under Drehoble's orders, and without fault, Drehoble carelessly and negligently pounding and prying on the rock above Stockmeyer, and as the result of such careless and negligent acts upon the part of Drehoble, the stone parted and broke, slipped and fell upon the plaintiff, occasioning the injuries of which he complained. To this complaint a demurrer was interposed, which, upon argument, was sustained by the court below. Stockmeyer v. Reed, 55 F. 259. Afterwards an amended complaint was filed, charging that prior to the accident Stockmeyer was employed and engaged as a scabbler in the quarry and the stone yard of the defendant; that Drehoble, the superintendent, at another place in the quarry was undertaking to turn down a certain block of stone that had been channeled preparatory thereto, except that the cut of stone had not been drilled at the base as was customary, and as was the only safe way to do, but was putting in wedges in the channeled seams, and driving them down with hammers and by steel pries, the men working on the top of the cut; that the cut of stone at the time was full of dry seams, as was well known to Reed, the owner, and to Drehoble; that Stockmeyer was ordered by Drehoble, the superintendent, to leave his place of work, which was a safe and secure place, and directed to go to the base of the cut stone, which was in a hole, and far from the top of the cut of stone, and at a place where he could not see the top where other servants of the defendant were at work, and at a very dangerous, hazardous, and unsafe place to work; that Stockmeyer did not know and could not have known of the dry seams and shattered condition of the cut of stone, because they were hidden, and entirely concealed from view by reason of dirt, mud, and other small particles of rock, and by reason of the rock dust that had accumulated on the top and sides of the cut; that while he was at work in this unsafe and dangerous place, not being able to hear what was going on above him, Drehoble directed the men at the top of the cut of stone to hammer and drive wedges in the channeled space, thereby attempting to break loose and turn the cut of stone down, and negligently and carelessly attempted to turn out the cut of stone while the plaintiff was in this hole without knowledge of what was transpiring above him; and that while so doing the cut of stone split, divided and fell down and upon the plaintiff, causing the injuries complained of. A demurrer to this amended complaint was overruled by the court below upon the grounds: First, that Drehoble was charged to be the superintendent of the defendant; the court, in its opinion, observing: 'It is alleged that in obedience to the command of his superior, who had the authority over him for that purpose, he was taken from a place of safety and sent into a place of danger. It is further alleged that the plaintiff did not know, and had no means of ascertaining, the danger of the place into which he was sent, and that the defendant and his foreman knew of its dangers, and failed to give warning of them. ' Upon the trial of the cause the case was rested at the conclusion of the evidence of the plaintiff, and no evidence was proffered by the defendant. Thereupon the defendant asked the court to instruct the jury to return a verdict for the defendant, which request was refused, and the defendant excepted. There was a verdict and judgment thereon for the plaintiff, to reverse which this writ of error is prosecuted. The facts, so far as they are necessary to be considered, are stated in the opinion of the court.

Wm. G. Challis and Moses P. Dunn, for plaintiff in error.

J. S. Duncan, C. W. Smith, and E. R. Keith, for defendant in error.

Before HARLAN, Circuit Justice, and WOODS and JENKINS, Circuit Judges.

JENKINS Circuit Judge, after the foregoing statement of the case, .

It is the duty of the master to use ordinary care to furnish machinery and appliances reasonably safe and suitable for the use of the servant, such as with reasonable care upon the part of the servant can be used without danger except such as is incident to the business in which such instrumentalities are employed. So, also, is it the duty of the master to provide a reasonably safe place in which the servant may perform his work, and to keep it in such suitable condition. This duty is not absolute, but relative. It is measured by the nature and character of the employment, the location of the premises and their surroundings. There are employments that of themselves are necessarily dangerous, in connection with which no position can be made secure. In such case the law requires of the master that he shall use ordinary care that the dangers of the employment are not unnecessarily enlarged; that he shall take proper care to furnish such safeguards as are customarily employed in the performance of like hazardous service without exposure to dangers that are not within the obvious scope of the employment as usually carried on. Coombs v. Cordage Co., 102 Mass. 572; Burke v. Anderson, 34 U.S.App. 132, 16 C.C.A. 442, and 69 F. 814. The master may, however, conduct his business in the way that seems to him best, although other ways may be less hazardous. In such case, if the servant knows the danger attendant upon such manner of prosecuting the work, he assumes the risk of the more hazardous method. Tuttle v. Railway Co., 122 U.S. 189, 7 Sup.Ct. 1166; Southern Pac. Co. v. Seley, 152 U.S. 145, 14 Sup.Ct. 530; Naylor v. Railway Co., 53 Wis. 661 11 N.W. 24; Stephenson v. Duncan, 73 Wis. 404, 41 N.W. 337; Sweet v. Coal Co., 78 Wis. 127, 47 N.W. 182; Casey v. Railway Co., 90 Wis. 113, 62 N.W. 624; Sullivan v. Manufacturing Co., 113 Mass. 396; Gilbert v. Guild, 144 Mass. 601, 12 N.E. 368; Crowley v. Pacific Mills, 148 Mass. 228, 19 N.E. 344; Coullard v. Tecumseh Mills, 151 Mass. 85, 23 N.E. 731; Railroad Co. v. Lyons, 119 Pa.St. 324, 13 A. 205; Anderson v. Lumber Co., 47 Minn. 128, 49 N.W. 664; Michael v. Stanley, 75 Md. 464, 23 A. 1094; Rietman v. Stolte, 120 Ind. 314, 22 N.E. 304. The servant, on his part, assumes the natural and ordinary risks attendant upon his employment. He does not, however, assume unusual and extraordinary risks of which the master knew or should have known or foreseen, unless such risks are obvious, or the servant has actual or presumed knowledge of the danger. It is the duty of the servant to use ordinary care to ascertain the dangers attending the service in which he engages, and to protect himself against known dangers, and such as can by ordinary care be ascertained. This duty is as imperative upon him as is the duty laid upon the master. Wormell v. Railroad Co., 79 Me. 397, 10 A. 49. When the servant is required by the master to perform temporary service beyond and without the scope of that which he has engaged to do, a question of somewhat different nature is presented. The master may not lawfully expose his servant to greater risks than those pertaining to the particular service for which he has engaged, and against which the servant, through want of skill, or by reason of tender age or physical inability, could not presumably defend himself, if unapprised of the danger. He is bound to warn the servant of the danger if it be not obvious, and to instruct him how...

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