Henness v. Pend D'Oreille Mining & Reduction Co., Ltd.
| Decision Date | 15 February 1919 |
| Parties | VANE HENNESS, Respondent, v. PEND D'OREILLE MINING & REDUCTION CO., LTD., Appellant |
| Court | Idaho Supreme Court |
PLEADING-COMPLAINT SUFFICIENCY OF-MASTER AND SERVANT-NEGLIGENCE-SAFE PLACE TO WORK-DUTY TO FURNISH-OBVIOUS DEFECTS.
1. Where a cause of action is predicated upon the negligence of an employer in failing to inspect and to use ordinary care to make an employee's place of work reasonably safe, the complaint is not required to allege that the employer knew that the employee was ignorant either of the defects which caused the injury complained of, or of the employer's failure to inspect the place of work.
2. The duty which rests upon an employer is to use ordinary care to make the place of work reasonably safe, while the duty which rests upon the employee is to take notice of and avoid obvious defects, in the absence of which he has a legal right to assume that the place of work is reasonably safe.
[As to necessity for notice of master's knowledge of defect, see note in 98 Am.St. 303]
APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.
Action for damages for personal injuries. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
Albert H. Conner and Herman H. Taylor, for Appellant.
The ignorance of a servant and the master's knowledge of such ignorance must be pleaded and proven. (26 Cyc. 1165, 1393; Becker v. Baumgartner, 5 Ind.App. 576, 32 N.E. 786; O'Connor v. Atchison etc. Ry. Co., 137 F. 503 70 C. C. A. 87; Fortin v. Manville Co., 128 F. 642; Peterson v. New Pittsburg Coal etc. Co., 149 Ind 260, 63 Am. St. 289, 49 N.E. 8; Brazil Block Coal Co. v. Young, 117 Ind. 520, 20 N.E. 423.)
Respondent knew that no inspection had been made and it was his duty to make the very place in which he was working safe. (Low v. Clear Creek Coal Co., 140 Ky. 754, Ann. Cas. 1912B, 574, 587, 131 S.W. 1007, 33 L. R. A., N. S., 656; Cnkovch v. Success Mining Co., 30 Idaho 623, 166 P. 567.)
G. H. Martin, for Respondent.
The law does not exact from the servant the use of diligence in ascertaining defects, but charges him with knowledge of such only as are open to his observation, and beyond this he has the right to assume without inquiry or investigation that his employer has discharged his duty of furnishing him with a reasonably safe place in which to perform his duties, and that he has a right to assume in the absence of apparent defects that a place in which he is ordered to work by a shift boss is safe, and he is not bound to inspect it for the purpose of discovering latent defects. (Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634; Cnkovch v. Success Mining Co., 30 Idaho 623, 166 P. 567; Low v. Clear Creek Coal Co., 140 Ky. 754, Ann. Cas. 1912B, 574, 577, 131 S.W. 1007, 33 L. R. A., N. S., 656; Fredericks v. Ft. Dodge Brick & T. Co., 151 Iowa 637, 131 N.W. 766, 48 L. R. A., N. S., 925.)
Respondent recovered judgment for personal injuries. This appeal is from the judgment and from an order overruling a motion for a new trial.
Appellant was engaged in the business of developing and working a mine. Respondent entered its employment about July 7, 1915, and was injured on July 17, 1915. His duties were to run the engine and compressor and do such other work as the foreman, Cogswell, might direct.
At the time of the accident, he and Cogswell were working in a small stope off of a raise. Prior thereto, Cogswell had drilled, while respondent ran the compressor. The latter loaded the holes under the direction of the former. After firing, they went back into the drift to the main tunnel, into a cross-cut, and waited for the shots. Thereafter, they waited a short time for the gas and smoke to clear away and went back. The holes which were shot were about five or six feet to the left of the raise. As they went back, Cogswell, who was in the lead, took the carbide lamp from his hat and turned the light on the roof of the raise under the stope, then went up in the raise, followed by respondent. After looking a few minutes they went out of the stope for timber. When they returned, Cogswell went up in the raise, followed by respondent. While the latter was standing in a stooped position, assisting in placing timbers, rock fell from the roof of the stope, crushing him down on to the cribbing, causing the injuries complained of.
The complaint predicates a cause of action based upon appellant's alleged negligence in failing to inspect respondent's place of work and to make it reasonably safe. The answer denies the allegations bearing upon appellant's alleged negligence, and sets up as affirmative defenses assumption of risk, contributory negligence and negligence of a fellow-servant.
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