Central Coal & Coke Co. v. Williams

• Decision Date: 15 October 1909
• Docket Number: 2,992.
• Citation: 173 F. 337
• Parties: CENTRAL COAL & COKE CO. v. WILLIAMS.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 337

CENTRAL COAL & COKE CO. v. WILLIAMS.

No. 2,992.

United States Court of Appeals, Eighth Circuit.

October 15, 1909

Ira D Oglesby, for plaintiff in error.

James Brizzolara and Henry L. Fitzhugh, for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

ADAMS Circuit Judge (after stating the facts as above).

Much evidence was offered to sustain the issue, tendered by the answer, that plaintiff might in the exercise of ordinary care have discovered the dangerous character of the roof in question, and the court charged the jury that the duty devolved upon the master to exercise reasonable care to make the entry in question reasonably safe and secure, and properly told the jury that the servant had a right to presume that the master had performed his duty and to proceed with his work in reliance upon that presumption; but the court qualified this correct exposition of the law by adding:

'Unless a reasonably prudent man, in the performance of his work as a miner, would have learned facts from which he would have apprehended danger to himself, in which event the law would not permit him, if he knew, or by the exercise of reasonable care might have known, that the roof of the entry was unsafe, insecure, and dangerous to proceed to work underneath the same; and, if he did so, he assumed the risk and cannot recover.'

This in effect told the jury that a servant entering or continuing in the employ of a master is charged with the affirmative duty of exercising reasonable care to find out whether the place provided for him to work in is safe. We have repeatedly held that no such obligation is imposed upon the servant. He has a right to assume that the master has performed his whole duty and that the place is reasonably safe. It is only when it is known by the servant not to be safe, or when it is patent to or plainly observable by him that it is not safe, that the servant assumes the risk of danger. Kirkpatrick v. St Louis & S.F.R. Co., 159 F. 855, 87 C.C.A. 35; Chicago Great Western R. Co. v. McDonough, 161 F. 657, 88 C.C.A. 517; Federal Lead Co. v. Swyers, 161 F. 687, 88 C.C.A. 547; United States Smelting Co. v. Parry, 166 F. 407, 92 C.C.A. 504; Ohio Copper Min. Co. v. Hutchings (C.C.A.) 172 F. 201. The court below, therefore, declared the law more favorably to the defendant than should have been done.

One of the defendant's main contentions is that the evidence conclusively established that Williams was not in the entry where the powder and fuse were kept, and where he was required to make up his cartridges, but was out in a dangerous and abandoned cross-cut, where he was not required or expected to be, and received his injury from a rock falling while there. It is claimed he was thereby guilty of such contributory negligence as precluded recovery by him, and that the trial court erred in refusing to instruct the jury to find for the defendant as requested. After a careful reading of the record, we are satisfied that there was substantial evidence tending to show that Williams received his injury while at work in the entry as claimed by him. The learned trial judge charged the jury explicitly that if he was not injured while in the entry, but chose of his own accord to go into the cross-cut, and while there was injured, he could not recover. The verdict for plaintiff necessarily responded to this issue adversely to defendant's contention, and is conclusive upon us.

Exception was also taken to certain parts of the charge, which stated to the jury in effect that a primary duty rested upon the defendant to so inspect the roof of the entry in question as to maintain it in a reasonably safe condition, and to keep in its employ an inspector whose duty it was to look after the roofs of the entries. It is...