Baumler v. Narragansett Brewing Co.

• Decision Date: 26 December 1901
• Citation: 50 A. 841,23 R.I. 430
• Parties: BAUMLER v. NARRAGANSETT BREWING CO.
• Court: Rhode Island Supreme Court

50 A. 841

23 R.I. 430

BAUMLER

v. NARRAGANSETT BREWING CO.

Supreme Court of Rhode Island.

Dec. 26, 1901.

Action by Frederick Baumler against the Narragansett Brewing Company. Demurrer to complaint sustained.

Thos. H. Holton and John Doran, for petitioner.

Vincent & Rice, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence. The declaration alleges, in substance, that the plaintiff was an employe of the defendant corporation in the capacity of a "filler" in the defendant's brewery, —that is, that he was engaged in running beer into barrels and kegs, —and that he was wholly unacquainted with the work which he was doing at the time of receiving the injuries complained of; that in said brewery there were certain large vats, resting upon supports, at a distance of about 13 inches from the floor; that the plaintiff had had experience in breweries as a "filler," but had never had any experience in the work of cleaning out the space under saidvats, or similar vats, in other breweries, and was wholly ignorant of the risks attending the doing of such work; that on January 30, 1900, he was ordered by George Wilhelm, the brewmaster for the defendant corporation, and the person who was in chief control and management of the work of the corporation and of all the employes thereof, to do whatever work he might be directed to do by the foreman of the cellar room, and that said foreman, without giving plaintiff any warning or notice of the danger of the work, ordered him to clean out the space under certain vats in said brewery; and the plaintiff not knowing the nature of the work, and not knowing or having the means of knowledge of the risks attending said work, and exercising due care in the performance thereof, crawled into the space under one of said vats. The declaration further alleges that the spaces under said vats were covered, and not visible, and that their smallness, and the difficulty and risk attending working in them, could not be appreciated from any observation which the plaintiff had been able to make, or from any experience, information, or means of knowledge possessed by him; and he avers that he is short and stocky in build, deep through the chest and body, and was at that time very heavy, and that the spaces under the vats were too small for him to enter or work in, which the defendant well knew, or but for the lack of the exercise of ordinary care would have known, and that it was dangerous for him to do the work of cleaning out said spaces, and to go or crawl into the space beneath said vats; and he avers that it was the duty of the defendant to provide reasonably safe premises and appliances for him in doing the work of the defendant, and that it was its duty to refrain from placing him in a dangerous situation without giving him notice of the danger, and that it was negligence on the part of the defendant to order him to go under said vats; and the plaintiff further avers that said space was exceedingly narrow and contracted, and that in doing the work which he was ordered to do he was obliged to use a hose discharging water, and also to use certain brushes or scrapers, and while in said space, by reason of its narrowness and smallness, and by reason of the water saturating his clothes, and such wetting, and the friction of the supports, floor, and vat upon his clothing, causing the same to rumple and bind against the supports and floor and vat, the plaintiff became wedged and bound in said space, whereupon he called for help for a long space of time, and that no assistance was rendered him, whereupon for a time the plaintiff lost consciousness, and later with great difficulty extricated himself from said space; and the plaintiff alleges that by reason of the smallness of said space his ribs were broken, and he was otherwise seriously and permanently injured, whereby he suffered great pain, and was rendered unable to work, etc. The defendant demurs to this declaration on the grounds (1) that it appears therein that the danger was obvious, and that the plaintiff assumed the risk; (2) that the facts set forth in the declaration do not constitute negligence on the part of the defendant; (3) that it appears from the declaration that the negligence of the plaintiff was the proximate cause of the accident.

The plaintiff's declaration, in effect, in so far as it states the condition of things existing at the time of the accident, comes to this, viz.: That there were certain large vats in the defendant's brewery, which were so situated as to leave an open space underneath, between them and the floor, of about 13 inches, which vats rested on supports, through or between which there was an opening into said space; that no machine or implement occupied any part of said space, and no pitfall or defect of any sort existed therein, but that it was simply as open space, with a floor beneath and the vats above, supported as aforesaid; and that the plaintiff, being ordered to clean out said space, crawled through the opening leading thereto, and while working therein became wedged and bound, as aforesaid.

It must be taken for granted that the plaintiff knew what his own physical size and proportions were quite as well as any one else. Indeed, his declaration avers that he was familiar therewith; for it alleges "that he is short and stocky in build, deep through the chest and body, and was at that time very heavy." It must also be taken for granted that he knew the size of the hole into which he crawled, as related to the size of his body, at any rate, for it was sufficiently large to enable him to enter it and reach the open space aforesaid; and, as this space is not shown to be any less in height than said opening or hole through which he entered, it must have been sufficient to permit him to move around therein. But he alleges that the space was too small for him to work in. If this was so, it was evidently a fact which he knew at the time when he went in, but did not see fit to regard.

Knowing the condition of things, then, the question arises whether, by attempting to do the work assigned him, the plaintiff did not assume any risk incident thereto. We think it is clear that he did. It is familiar law that when a servant consents to work in a given place, knowing and appreciating the danger, he assumes the risk incident to the employment Kelley v. Dyeing Co., 12 R. I. 112, 34 Am. Rep. 615; Gaffney v. Railroad Co., 15 R. I. 456, 7 Atl: 284; Disano v. Brick Co., 20 R. I. 452, 40 Atl. 7; Pintorelli v. Hortons, 22 R. I. 374, 48 Atl. 142. But the plaintiff argues that as the declaration alleges that the space under said vats was covered, and not visible, the risk attending working in them could not be appreciated from any observation which the plaintiff was able to make, and hence that the rule aforesaid doesnot apply. Had there been any inherent or hidden danger underneath said vats, the plaintiff's position would be tenable. But there was not. And hence the mere fact that the space was not visible from without in no way added to the danger, and in no way contributed to the happening of the accident. It was not by reason of the darkness under the vats that the plaintiff was injured, but by reason of the narrowness of the space in which he voluntarily placed himself, and the condition of his clothing after using water in doing his work. Moreover, while the space underneath said vats was not visible, the hole or aperture leading thereto, through which the plaintiff entered, was visible, and, as already suggested, was of the same height as the space where he did the work. The experimental knowledge, therefore, which he must have obtained by crawling in, and...