Federal Lead Co. v. Swyers

• Decision Date: 27 April 1908
• Docket Number: 2,679.
• Citation: 161 F. 687
• Parties: FEDERAL LEAD CO. v. SWYERS.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 687

FEDERAL LEAD CO. v. SWYERS.

No. 2,679.

United States Court of Appeals, Eighth Circuit.

April 27, 1908

Robert A. Holland, Jr. (James A. Seddon, on the brief), for plaintiff in error.

Edward A. Rozier (B. H. Boyer, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and Philips, District Judge.

ADAMS Circuit Judge.

This was an action in the nature of trespass on the case by a servant for damages resulting from negligence of the master. The defenses were the general issue, contributory negligence and assumption of risk. The verdict and judgment below, from which the defendant prosecutes error, were in favor of the plaintiff.

Ten different specifications of negligence are found in the petition, three of which only require consideration by us. It is charged (1) that defendant failed to exercise reasonable care in providing plaintiff a place to work in and machinery to work with, and thereby violated a primary duty imposed upon the master by the common law; (2) that plaintiff was required to work dangerously near to belting, shafting gearing, and drums which were not guarded as required by a statute of Missouri; (3) that plaintiff was required to work between the fixed or traversing parts of a machine while in motion, in violation of a statute of Missouri, and that as a result of the foregoing the plaintiff sustained an injury. The statutes just referred to are sections 6433, 6434, Rev St. Mo. 1899 (Ann. St. 1906, pp. 3217, 3218). They are as follows:

'Sec. 6433. The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.

'Sec. 6434. No minor or woman shall be required to clean any part of the mill, gearing or machinery in any such establishment in this state, while the same is in motion, or work between the fixed or traversing parts of any machine while it is in motion by the action of steam, water or other mechanical power.'

Plaintiff at the time of his injury was between 19 and 20 years old, sound in body and mind, had been in the service of defendant for 13 months before he was injured, and during all that time had been performing the same duties. These duties consisted in part of mounting the platform located near the roof of defendant's factory or mill for the purpose of oiling the boxes of a shaft, soaping a belt running over a pulley located near by, and otherwise attending to the machinery operating there. The platform was 22 feet long and 3 feet wide, without a railing. The power shaft for running the machinery below, consisting of elevators, jigs, and rolls for handling and crushing ores, ran horizontally near to and a little above the platform. On this shaft were keyed two pulleys, about 18 inches apart, over one of which a belt and over the other a sprocket chain operated. Just beyond the shaft, and running substantially parallel with it, a cable used for hauling ores up an incline for treatment in the mill was in operation. This cable occasionally worked off the sheave over which it ran and needed replacement.

The testimony tends strongly to show that the duty of watching the cable and replacing it when necessary devolved upon another person; but there is evidence that plaintiff esteemed it his duty, and had frequently performed it, to reach over the shaft while standing on the platform and, when necessity required it, replace the cable on the sheave. The shaft ran parallel with and about two feet higher than the platform, and it was necessary to reach over it at a point about midway between the pulleys in order to manipulate the cable. On the occasion in question Swyers, while on the platform attending to his duties of oiling the machinery and soaping the belt, undertook to restore the cable, which had worked off the sheave, to its proper place on the sheave.

In doing so he reached over the shaft, his feet slipped on the platform, and in some way he was caught by the revolving shaft or pulleys and injured. There was evidence tending to show that the platform was slippery, the shaft slightly bent, and the boxes through which it passed loose.

The plaintiff, testifying in his own behalf, frankly admitted that he had been familiar for 13 months with the full situation disclosed by the proof as just stated. During all this time he had been on the platform several times a day in the discharge of his duties. He knew well the relative location and physical condition of the platform, shaft, pulleys, and cable, and fully realized each and every peculiarity or defect now claimed by him to have existed. He fully appreciated the danger of replacing the cable on the sheave while standing on the platform, and admitted that he had always been on guard and had taken watchful precautions to prevent falling by reason of the slippery condition of the platform or being entangled in the revolving shaft or pulleys while reaching over them. He testified that the condition of things existing at the time of his injury had prevailed and had been fully known and appreciated by him for a long time theretofore. With these undisputed facts, admitted to be true by plaintiff, there can be no question, under the firmly established doctrine of this court, that he assumed the risk and danger of the injury which befell him, unless the statutes of Missouri released him therefrom. The rule governing this matter has frequently been stated, and recently in the case of Kirkpatrick v. St. Louis & San Francisco Railroad Co. (C.C.A.) 159 F. 858, has been restated as follows:

'If the risks and dangers which caused his (the servant's) death were the usual and ordinary risks and dangers of the employment, he assumed them, provided they were known to and appreciated by him. St. Louis Cordage Co. v. Miller, 61 C.C.A. 477, 126 F. 495, 511, 63 L.Ed. 551, and cases cited. If, on the other hand, they were not the usual and ordinary risks and dangers, but arose from negligent defects in appliances or a negligent method of operating them required by the master, then he assumed all risks and dangers arising from such defects and such operation, if they were known to him, or if they were plainly observable by him.'

The present case in any or all of its aspects falls so well within the doctrine of assumption of risk just stated that, except for the statutes, no claim of defendant's liability is seriously made. This brings us to the only remaining question: Do the statutes cut off the defense of assumption of risk? In St. Louis Cordage Company v. Miller, supra, Glenmont Lumber Co. v. Roy, 61 C.C.A. 506, 126 F. 524, Denver & R.G.R. Co. v. Norgate, 72 C.C.A. 365, 141 F. 247, 6 L.R.A.(N.S.) 981, and American Linseed Co. v. Heins, 72 C.C.A. 533, 141 F. 45, we, after exhaustive consideration, have repeatedly answered this question in the negative. A reference to those cases will disclose that the authorities in this country and England were carefully and critically examined, compared, and considered, and no pains spared in the effort to reach the right conclusion. In such circumstances we deem it unprofitable and unwise to open up the subject or enter upon a reconsideration of the doctrine there announced, and, notwithstanding the able and insistent argument of learned counsel for plaintiff, must decline to do so; but, as they have invited our attention to certain matters supposed not to have been considered before, we will take them up.

It is said that the defense of assumption of risk rests in a common-law principle expressed by the maxim 'volenti non fit injuria,' and that this principle first received judicial sanction in England in the case of Priestly v Fowler, 3 M. & W. 1 (in 1837), and therefore was never adopted in Missouri, where this cause of action arose, and is not now the law...