Grandpre v. Chicago

• Decision Date: 27 October 1922
• Docket Number: 5013
• Citation: 46 S.D. 32,190 N.W. 323
• Court: South Dakota Supreme Court
• Parties: WARD GRANDPRE, Plaintiff and appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and respondent.

46 S.D. 32

190 N.W. 323

M & St. P. Ry. Co.,(1922)

WARD GRANDPRE, Plaintiff and appellant,

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Day County, SD Hon. Frank Anderson, Judge #5013--Affirmed Rex Harris, Webster, Morton Barrows, St. Paul, Minn. Davis & Michel, Minneapolis, Minn. Attorneys for Appellants. E. L. Grantham, Aberdeen, SD C. O. Newcomb, Minneapolis, Minn. Attorneys for Respondent. Opinion filed October 27, 1922 (See 44 SD 95, 182 N.W. 527)

SMITH, J.

Action for personal injuries. Respondent Railway Company owned and operated a pumping plant at Bristol, which was equipped with a gasoline engine having two drive pulleys, one operating an air compressor lifting water from a deep well into a reservoir, the other operating a pump conveying water from the reservoir into a tank for the use of locomotive engines. The drive pulley on the gas engine was 18 inches wide, accommodating the shifting of the belt from a 6-inch, tight pulley to a 6-inch loose pulley on the pump. Shifting the belt ordinarily had been effected by the use of a loose rod braced in a socket in the floor near the pump, by which the pump belt was pushed over from one pulley to the other. About the 17th day of July, 1917, the loose pulley, having been broken, was taken off for repairs. From that day until some time in October following, the belt was operated without the loose or idler pulley. The pumping plant had been operated in two shifts; one Brennan on the day shift and one Roed on the night shift. Porter was repair man in the employ of the company. It was his duty to keep pumps and machinery in pumping stations in repair, and to order supplies therefor. He had men in charge operating the different pumping stations.

About September 27th, Brennan, the day man, desired to take a lay-off. Grandpre and one Moxness were in charge of separate grain elevators located short distances from the pumping station, and were acquainted with Brennan. Neither could devote all his time to the work, but between them could find time during the day to keep the tank full of water. Brennan was acquainted with these men, knew they were experienced in such work and suggested that they might be employed. Porter, who had to do with the employment of men at the various pumping stations, took up, at Brennan's suggestion, the matter of lay-off with McCarthy, his superior officer, and thereafter told Grandpre and Moxness that it was all right for them to go to work; that he could not carry both of them on the pay roll, but that he would carry the account in Grandpre's name, and Grandpre could settle with Moxness. Their joint duty was to operate the pump and keep the tank full of water on the day shift. Porter had other men operating the plant during the night shift. Men thus employed were paid monthly wages by the company. Appellant Grandpre had had years of experience with belt driven machinery, and had operated a similar pumping plant for the city of Bristol for a year. He began work on the 22d day of September, and was injured on the 27th. Because of the effect of the injuries received, he appears to have been unable to give any clear account of the manner in which the injury occurred. It appears that the pump conveyed the water from the reservoir into the tank much more rapidly than the air compressor filled the reservoir from the well, and for that reason the air compressor had to be operated at times when the pump was idle. To do this, the pump belt was ordinarily thrown off the driving pulley onto the idler pulley on the same shaft. At the time of the accident and some months prior to plaintiff's employment, the idler pulley had been removed for repairs, and, to stop the pump when necessary, the belt had to be thrown off on the floor. It is assumed as probable that the accident occurred when Grandpre attempted to stop the pump in that way.

It is suggested by respondent that Grandpre was an independent contractor, and for that reason, respondent was not liable for injuries thus received. Without attempting a critical review of the facts relied upon, or a discussion of the law relating to independent contractors, we are of the view that the doctrine of independent contractor has no application to the facts disclosed by the record in this case. We are of the view, however, that the rule relating to assumption of risk is decisive upon the facts disclosed. Appellant was not an inexperienced man, ignorant of the dangers involved in the work which he undertook to do; he had had years of experience with similar belt-driven machinery, and was a skilled mechanic. If the operation of the plant was dangerous because of the absence of the idler pulley, or of a proper belt-shifting apparatus. These conditions were in existence and were open and obvious at the time he entered upon his employment. Neither the absence of the idler pulley nor the want of a belt shifter, even if assumed to be necessary to the safe operation of the plant, can be said to have been hidden defects. Everything was open and visible to any one entering the room.

In Gibson v. Erie R. Co., 63 NY 449, 20 AmRep 552, it was held that where defects in machinery or other appliances are as well known to a servant as to the master, the servant must be regarded as voluntarily incurring the risk resulting from its use, where the master has not, by urging on the servant, or coercing him into danger, or in some other way, directly contributed to the injury, and that where a servant accepts service, from its nature necessarily hazardous, with a knowledge of the character and position of the structures from which employes might be liable to receive injury, he cannot call upon the master to make alterations to secure greater safety, or, in case of injury, hold him liable, See, also, Plunkett v. Donovan (City Court Brook.), 12 NY Supp. 455. In Odell v. NY Central R. Co., 120 NY 325, 17 AmStRep 650, it was held error to refuse an instruction to the jury that, if plaintiff had knowledge of the defects of the machinery by which he was injured, he could not recover. Maloney v. Cunard S. S. Co., 217 NY 278, 111 N.E. 835; O'Malley v. Boston Gas Light Co., 158 Mass. 135, 47 LRA 161; Texas & P. Ry. Co. v. Archibald, 18 SCt 777, 42 LEd 1188.

That appellant in this case had knowledge of the alleged defects must be conclusively presumed. With his long experience and familiarity with this class of machinery, a first glance at the equipment must have disclosed to him the absence of the idler pulley, and of any usual shifting device, and, even though he did not observe them, yet, as was held by this court in Carlson v. Sioux Falls Water Co., 59 N.W. 217, syllabus:

"The master is not liable for an injury to the servant in the course of his employment, when the danger is of such a character that it must be as apparent to the servant as to the master."

And in that case, upon rehearing (8 SD 47, 65 N.W. 419), this court said:

"He is bound to make use of his eyes, to see a source of danger which is open and apparent to anybody who would use his eyes."

The rule thus announced was adhered to in Schweinforth v. Schwenk-Barth Brewing Co., 153 N.W. 908.

Again, in Peterson v. Otho Development & Power Co., 166 N.W. 147, this court said:

"An employe assumed no risks from dangers resulting from his employer's negligence, except where he has notice of such risks; but he will be regarded as having assumed even such risks as result from his employer's negligence if he had, or ought to have obtained, knowledge of such risks before his injury was received. There are exceptions to this last rule, as in the case where an employe continues in an employment, though subject to extraordinary risks caused by his employer's negligence, because of a promise that the cause of such extraordinary risk will be removed. ... The jury might have been justified in finding that there was no assumption of such extra risk as was caused by appellant's failure to provide proper fuse, if there had been any evidence upon which it could have based a finding that respondent did not comprehend or understand the risks incident to working in this particular shaft, or if there had been any evidence that, comprehending such extraordinary risk, he continued to work because of a promise that the cause of such extraordinary risk would be removed. It cannot be said that, because he concluded there was no miss-fire hole, he did not comprehend the risk. If the proper fuse had been used and a miss-fire hole had been reported, no one could claim that an employe who, after receiving such report, continued to work in the shaft, did not assume the risks incident to the possible existence of such a miss-fire hole, although, after examination, he failed to locate the hole and concluded there was none. Such a risk was one clearly assumed by an experienced miner."

In 18 RCL, p. 683, § 172, it is said:

"If at the time of injury he had no knowledge of the peril to which he was subjected, he is entitled, as a rule, to be compensated by the employer; he is said not to have 'assumed the risk'; but conversely, if he did have knowledge of the dangerous condition or instrumentality all right of recovery is barred; and although there are unusual or extraordinary dangers connected with the service, due to defects in the appliances and equipments used in the operation of the business, an employe assumes the risk thereof if they are known to him or are so obvious that he is presumed to have knowledge of their existence, and he continues without objection to use such appliances and equipments. The doctrine of assumed risk applies as well to those risks which arise or become known to the servant during the service as to those in contemplation at the time of the original hiring."

Again ( section 174) it is said:

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