Gowen v. Bush

• Decision Date: 05 October 1896
• Docket Number: 535.
• Citation: 76 F. 349
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: GOWEN v. BUSH.

76 F. 349

GOWEN v. BUSH.

No. 535.

United States Court of Appeals, Eighth Circuit.

October 5, 1896

J. W McLoud, for plaintiff in error.

William H. H. Clayton (James Brizzolara, James B. Forrester, and James Parks & Son, with him on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

The writ of error in this case was heretofore dismissed for want of jurisdiction in this court to hear and decide the case. 18 C.C.A. 572, 72 F. 299. It has since been restored to the docket in compliance with the provisions of an act of congress approved on February 8, 1896 (29 Stat. 6, c. 14) and is of congress approved on February 8, 1896 (29 Stat. 6 c. 14), and is now before us for determination on the merits. The action was brought by William N. Bush, the defendant in error, against Francis I. Gowen, sole receiver of the Choctaw Coal & Railway Company, the plaintiff in error, to recover damages for personal injuries which the plaintiff below sustained by reason of an explosion in a coal mine located at Hartshorne, in the Indian Territory. The mine in which the explosion occurred was being operated at the time by the defendant, Francis I. Gowen, in his capacity as receiver of the afore-said company. The plaintiff, William N. Bush, was a common miner in the employ of the receiver, who had worked only 2 1/2 nights in the mine when the explosion occurred. The complaint on which the case was tried charged among other things, as a ground for recovery, that when the plaintiff took service in said mine it was represented to him by the agents of the receiver who employed him that the mine was in every was safe, and especially that it was free from explosive gases, whereas, in point of fact, as his employer, the said receiver, well knew, said mine generated explosive gases which rendered it at all times extremely dangerous and unsafe, and subjected persons who were employed therein to great peril. It was also charged by the plaintiff below, in substance, that the dangerous condition of the mine occasioned by the existence of explosive gases was wholly unknown to him up to the time that the explosion occurred, and that he sustained the injuries complained of as the result of being induced to go to work in said mine, believing it to be safe and free from explosive gases, without any fault or negligence on his part which directly contributed to the explosion. There was a trial, and a verdict in favor of the plaintiff below.

The first error that has been assigned for our consideration is that the trial court erred in failing to direct a verdict for the defendant below. The argument in support of this assignment is founded upon the claim that there was no evidence before the jury tending to show that the defendant had been guilty of any violation of duty, or that he was in any respect negligent. We think, however, that this point is untenable, and should be overruled. The record discloses that there was evidence before the jury which tended to show that the plaintiff was a miner of some 10 years' experience, who had always been accustomed to work in mines that did not generate gas in explosive quantities; that he had been induced by an agent of the receiver, by the name of Gabe Gideon, to come from Calhoun, Mo., where he resided, to Hartshorne, in the Indian Territory, for the purpose of taking service in a new mine at that place which had recently been opened by the receiver, and was being worked both by night and by day, and that he had only arrived at said mine and taken service therein about three days before the explosion occurred; that representations were made to him at his home in Missouri, by the receiver's agent, for the purpose of inducing him to come to Hartshorne, to the effect that the time at that place was free from gas, and was perfectly safe, and that similar representations were made to him by the assistant superintendent of the mine after his arrival at Hartshorne, before he went to work. There was further evidence tending to show that the mine in question did generate explosive gas in considerable quantities; that this fact was known to the agents of the receiver who had immediate charge and supervision of the mine; and that the plaintiff was seriously injured by an explosion of gas in the mine, which took place about the middle of the third night that he worked therein, before he had become acquainted with its condition and the dangers incident thereto. As there was testimony before the jury tending to establish these facts, it is manifest that the court would have erred in withdrawing them from the consideration of the jury on the theory that they constituted no proof of culpable negligence. The doctrine is well settled and elementary that it is a master's duty to notify his servant of any hidden defect in the place where the latter is expected to work which increases the ordinary risks of the employment, and to advise him of any latent danger which may attend the doing of any work which the servant is called upon to perform, provided the defect or the danger in question is known to the master and is unknown to the servant. A master violates his duty and is guilty of culpable negligence whenever, without warning, he exposes his servant to a risk of injury which is not obvious and was not known to the servant, provided the master himself was either acquainted with the risk or in the exercise of ordinary care ought to have been acquainted with it. Baxter v. Roberts, 44 Cal. 187; Whart. Neg. Secs. 209-211; Shear. & R. Neg. (4th Ed.) Sec. 203; Bailey Mast. Liab. p. 111. In the present case there was evidence which at least tended to show that the defendant not only failed to warn the plaintiff of the known presence of gas in the mine in such quantities as might cause an explosion, but that the plaintiff was thrown off his guard, and not led to expect the presence of gas in dangerous quantities, by the assurance of those who employed him in dangerous quantities, by the assurance of those who employed him that the mine was safe and free from gas. We think, therefore, that the evidence above referred to made a case which entitled the jury to decide whether the defendant was in fact negligent, and whether his negligence was the proximate cause of the plaintiff's injuries.

In this connection it will be as well to notice another error which is assigned to the action of the trial court in admitting testimony concerning the representations that were made to the plaintiff at his home in Calhoun, Mo., by Gabe Gideon the receiver's agent, to the effect that the mine where the plaintiff and his associates were expected to work was safe and free from gas. It is claimed by the plaintiff in error that the proof of these representations was inadmissible for the reason that Gabe Gideon had no authority to make them. It is not denied that he was authorized by the receiver to go to Calhoun, Mo., and solicit the plaintiff and some other miners to come to Hartshorne for the purpose of obtaining employment; neither is it denied that his expenses for making that trip were paid by the receiver. The objection to the testimony is that he was not authorized to make a hiring contract, nor to make representations as to the condition of the mine in which the men would be expected to work. We think that this objection to the testimony is untenable. It being conceded or solicit the plaintiff and other miners to go to Hartshorne for the purpose of obtaining work, and that his expenses in making the trip were paid by the receiver, it follows, we think, that it was within the apparent scope of the agent's authority to make representations touching the condition of the mine. Laborers who were thus solicited to go some distance from their place of residence into an adjoining state, in pursuit of a job, would naturally desire to know something about the character of the work at that place, the wages that they would probably earn, and, if they were to work in a mine, they would doubtless desire to know something about the condition of the mine and the risks that they would be likely to incur in working in it. They would naturally assume that the agent of the employer was authorized to give information with reference to such matters. We think, therefore, that the representations made by the agent touching the condition of the mine, as a means of inducing the plaintiff and others to go to Hartshorn, were within the apparent scope of the agent's authority, and that they were admissible against the employer, even though he had not expressly authorized the agent to make them. It is a well-known rule that a principal is always bound by the acts of his agent that are...