Chicago, B. & Q.R. Co. v. Shalstrom

• Decision Date: 22 March 1912
• Docket Number: 3,594.
• Citation: 195 F. 725
• Parties: CHICAGO, B. & Q.R. CO. v. SHALSTROM.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F. 725

CHICAGO, B. & Q.R. CO. v. SHALSTROM.

No. 3,594.

United States Court of Appeals, Eighth Circuit.

March 22, 1912

On uncontradicted evidence that defects in appliances were readily observable by reasonable care, and the risk from them was apparent, and that the servant continued in the service without complaint, the court should direct a verdict for defendant.

(Syllabus by the Court.)

A servant, by entering and continuing in the employment of a master without complaint, assumes the ordinary risks and dangers of the employment and the extraordinary risks and dangers which he knows and appreciates.

Although the risk of the master's negligence and of its effect unknown to the servant is not one of the ordinary risks of the employment which he assumes, yet, if the negligence of the master or its effect is known and appreciated by the servant, or is 'so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience' (United States Smelting Company v. Parry, 166 F. 407, 410, 92 C.C.A 159, 162), and he enters or continues in the employment without objection, he elects to assume the risk of it, and he cannot recover for the damages it causes.

When a defect is obvious or 'so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience,' and the danger and risk from it are apparent, he cannot be heard to say that he did not realize or appreciate them.

No duty rests on the master to warn a servant of defects, risks, or dangers which are 'so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience.'

The direct order of the master or of the foreman to the servant to work at a specified place, or with certain appliances does not release him from his assumption of the apparent risks and dangers of defects in the place, structure, or appliances that are 'so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience.'

The agreement of a servant to assume the ordinary risks of his employment and the extraordinary risks thereof that are apparent inheres in and is an inextricable part of his contract of employment, and when the latter is proved or admitted the assumption of these risks is proved, and no pleading or proof on the part of the defendant is necessary to establish. it.

When the uncontradicted evidence discloses the fact that the defects in the place, structure, or appliances were 'so patent as to be readily observed by the plaintiff by the reasonable use of his senses, having in view his age intelligence, and experience,' and the risks and dangers from them were apparent, and the servant entered upon and continued in the service without complaint, his assumption of the risk is conclusively established, and the court should instruct the jury to return a verdict for the defendant.

An experienced carpenter, in the employment of the defendant who was receiving top wages, was directed to assist in placing joists upon the walls of a building 25 feet high, the support of which in the middle consisted of a stringer composed of pine lumber 2x6, sustained by posts made of two pieces of lumber 2x8, spliced together and braced, to which the stringer was nailed. Joists had been placed on the walls and stringer over one-third of the building. The servant knew the size and kind of material of which the posts and stringers were composed, how they were made and fastened together, and he had done work of this kind before. There was no latent defect in the structure, and its method of construction and component parts were plain and obvious. He went out on the stringer with another workman beyond the joists, drew up 8 or 10 pieces of lumber to make 4 or 5 joists, and he and his fellow workman were nailing these together on the stringer, when an upright below gave way and he fell.

Held, the defects of the structure were obvious, the dangers of its use apparent, and the servant assumed the risk.

Byron Clark and James E. Kelby, for plaintiff in error.

Lionel C. Burr, Robert J. Greene, and Philip F. Greene, for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN Circuit Judge.

This is an action for negligence of the Railroad Company which Mr. Shalstrom, the plaintiff below, alleged caused his personal injury, and the defenses were that he assumed the risk and was guilty of contributory negligence. There was a verdict and judgment against the company. Many alleged errors are assigned; but the most important is that the court refused, at the close of the trial, to instruct the jury to return a verdict against the plaintiff.

The verdict has decided all conflicts in the testimony against the company, and on that basis the evidence at the close of the trial disclosed these facts: On December 10, 1910, the company was building an icehouse in the city of Lincoln, in the state of Nebraska, which was 200 feet long from east to west and 38 feet wide from north to south on the ground floor, and 36 feet wide at the top of the walls which had been erected and were 25 feet high. The company had covered the east third of the building with joists, each of which consisted of two pieces of lumber 2x6, one about 20 and the other about 24 feet long, which were nailed together where they overlapped and placed on edge so that one end of each joist rested on the plate on the north wall, the other end on the plate on the south wall, and the middle on a stringer which stretched from east to west at the height of the walls through the middle of the building and was supported by uprights or posts 8 or 10 feet apart. These posts were made of two pieces of lumber 2x8, spliced and nailed together where they overlapped so as to make their upper ends 25 feet high. The stringer was made of pieces of lumber 2x6, the ends of which were nailed on to the sides of the upper ends of the posts so that the joists would rest upon the upper edge of the stringer. Each post was held in place by a single brace one end of which was nailed to the post about two feet from its upper end and the other to the studding in one of the side walls about 12 feet above the floor. The joists were placed 2 feet apart. Each one, after it was set on edge in place, was nailed to the plates at its ends and to the stringer in the middle, and a board or piece of sheathing was placed upon it above the stringer and nailed to it and to the other joists by its side. Loose boards or sheathing had been placed upon the joists which had been put in place, and this was called the 'deck.' It covered the east one-third of the building, and it was capable of sustaining a weight of more than 2,000 pounds. The work in process was the extension of this deck over the westerly two-thirds of the building, and the method of doing the work had been to pull a pair of 2x6s up from the floor below to the side of the deck, lay them flat on the plates and the stringer, make their ends flush with the wall, nail them together where they overlapped, set the joist thus made on edge in its place, nail it to the plates and the stringer, draw the board above the stringer forward, and nail that to the upper edge of the joist and to the other joists. In this way over one-third of the building had been covered with the joists without accident by the use of the stringer and the posts which were not a part of the permanent structure of the building and were not erected to provide a scaffold or place for the workmen to labor upon. They were built to hold the joists up temporarily until the rafters were erected, when these joists were to be permanently supported by hangers from the roof and the stringer and posts were to be removed. The posts, the stringer, the joists, the material of which and the means by which they had been made and secured in place, were in plain sight of any one who went into the building, for there were no partitions or coverings that concealed any of them. Mr. Shalstrom was a skilled and experienced carpenter who was employed by the company and was receiving the highest wages paid to carpenters. On the morning of October 10, 1910, he walked into this icehouse by direction of his superior, to assist in its construction, and reported to the foreman, Mr. Franklin, who told him to go up the ladder and go overhead on the joists and pull the joists up, to go to the center of the building over the stringer that supported the joists. He first went to a fire that was started in the building and warmed himself for about 20 minutes, and then he went up onto the deck over the stringer and with another man proceeded to pull up the pieces of lumber from the floor below, to make joists, and to...