Burke v. Union Coal & Coke Co.

• Decision Date: 08 November 1907
• Docket Number: 2,544.
• Parties: BURKE v. UNION COAL & COKE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F. 178

BURKE v. UNION COAL & COKE CO.

No. 2,544.

United States Court of Appeals, Eighth Circuit.

November 8, 1907

Syllabus by the Court

An employe who was at work in a tunnel from 5 1/2 to 7 feet in height, repairing the track of a railroad operated by electricity by means of a trolley which ran on a wire suspended 5 or 6 inches beneath the right side of the roof of the tunnel, who had been warned to look out for the wire that contact with it might kill him, and who had been once knocked down by electricity from it, stopped from his work of driving a wedge under a rail beneath the wire, arose from his stooping position until his neck struck it and was killed by the electricity therefrom. Held:

The employe assumed the risk of injury from the wire by entering and continuing in the employment.

A servant, by entering or continuing in the employment of a master, assumes the risks and dangers of the employment which he knows and appreciates, and those which an ordinarily prudent and careful person of his capacity and intelligence would have known and appreciated in his situation.

Among the risks and dangers which the servant assumes by entering or continuing in the employment without complaining of them are those which arise from defects that are obvious or readily observable through the failure of the master to completely discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and with reasonably safe appliances to use.

An employe cannot be heard to say that he did not appreciate or realize the risk or danger where the defects were obvious and the dangers would have been apparent to an ordinarily prudent person of his intelligence and experience in his situation.

Where the uncontradicted evidence discloses the fact that the defects in the place or machinery or method of operation were obvious, and the danger from them apparent to an ordinarily prudent person of the intelligence and capacity of the servant, and that the servant entered upon or continued in the service without complaint of them, the defense of assumption of risk is conclusively established, there is no question for the jury, and the court should instruct them to return a verdict for the master.

Hugh Butler, for plaintiff in error.

William E. Hutton (Bruce B. McCay, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge.

This writ of error challenges an instruction to the jury to return a verdict for the defendant upon this state of facts:

The Union Coal & Coke Company, the defendant below, was operating a coal mine and a tunnel 2,000 feet long, which led to entries in the mine. The tunnel was from 5 1/2 to 7 feet in height, and there was a railroad track about 7 inches above the level of the floor of the tunnel, and a wire in the right upper corner of it, by means of which and a trolley, cars which were used to bring the coal from the mines, were moved. There was a switch, by which the electricity could be turned off of the wire when the trolley was not in use, and the wire could be charged again when desired. When the wire was charged it carried 550 volts, and contact with it was dangerous to human life. The cars upon this railroad had been operated by electricity in this way for more than a year when Michael W. Burke, who was the husband of Mary A. Burke, the plaintiff below, was employed by the defendant to assist in laying and repairing the track of the railroad on June 19, 1905. This track included not only the rails in the tunnel upon which the cars were moved by electricity, but also many thousand feet of rails in the entries in the mine and upon the surface of the ground, upon which the cars were operated by the use of mules. The foreman of the mine testified, and his testimony was not contradicted, that he warned Burke when he hired him 'that his work was track work, and that it was around wire and timber and such as that, and that he would have particularly to look out for the wire; * * * that if he came in contact with it he was likely to be killed; * * * that whatever he done, to watch out for the wire, that it was dangerous, and if he got tangled up with it, it would kill him, any man-- that it had 550 volts in it;' that Burke worked continuously, except upon Sundays, from the 19th to the 27th of June, that about June 23d, there was a cave in, in the tunnel, and while Burke was at work with other men removing the debris with one hand on the ferule of his shovel he permitted the latter to come in contact with this live wire, received a shock from it which knocked him down, and that when Burke told the foreman of it he told him that ...