Northwestern Fuel Co. v. Danielson, 262.

• Decision Date: 18 September 1893
• Docket Number: 262.
• Citation: 57 F. 915
• Parties: NORTHWESTERN FUEL CO. v. DANIELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F. 915

NORTHWESTERN FUEL CO. v. DANIELSON.

No. 262.

United States Court of Appeals, Eighth Circuit.

September 18, 1893

Statement by SANBORN, Circuit Judge:

This is a writ of error to reverse a judgment against the Northwestern Fuel Company, the plaintiff in error, in favor of Karl J. Danielson, the defendant in error, for a personal injury.

The Northwestern Fuel Company, the defendant below, owned a dock at Duluth, Minn., on which there was a large quantity of coal. The dock had taken fire, and the defendant was removing the coal and other materials from a portion of it in order to reach and subdue the fire, which was burning at some distance from the place where this accident happened. A trestlework stood on the dock, which consisted of posts 18 feet high and 16 feet apart, toe-nailed to the dock, and fastened together by heavy timbers on top. Two of these posts held together by such timber constituted a bent. These bents were 22 feet apart, and were fastened together by planks or joists spiked upon them. Before the fire, railway tracks had been used on this trestlework, upon which cars ran to and fro upon this superstructure when coal was unloaded from boats to the dock. On November 11, 1891, the defendant hired the plaintiff, and set him at work under two of these bents, with a large number of men, shoveling coal into wheelbarrows, and wheeling it along the dock onto a car that stood by its side. The two bents which subsequently fell had no coal by their posts, but were fastened to each other, and the second bent was fastened to a third bent (which stood in the coal) by the planks or joists spiked upon them. The plaintiff was put at work under the direction of an assistant foreman, who had charge of the men shoveling the coal at this place, but had nothing to do with those who afterwards tore down the bents. The men who did this were two assistant foremen. It was the general duty of one of these foremen to direct the work on the superstructure when the defendant was unloading coal from boats, and at other times it was his duty to take care of the trestlework, the railroad tracks and cars upon it, to repair them and keep them in proper condition. One Stringer was the general superintendent of the defendant. He had charge of all the work about the dock, and was admitted to be the defendant's vice principal. He hired the plaintiff, and either set him at work, or directed some one to set him at work, shoveling coal. Some of the trestlework had been removed a day or two before, but none of it had been taken down that morning, and neither the plaintiff nor his foreman knew that any of it was to be taken down that day, until after it fell. Shortly after 10 o'clock in the forenoon the superintendent directed the two assistant foremen to take down the two bents under which the plaintiff and eight other men were shoveling coal. Thereupon they attached a rope to one of the bents, and some men below pulled upon it, but the timbers held fast. They then pried off the joists or planks which held these two bents to the third, and they fell sooner than they expected and injured the plaintiff. The superintendent gave no notice to the plaintiff or his foreman that these bents were to be taken down, and they testified that they received no warning of it until they fell. The defendant requested that the jury be instructed to return a verdict in its favor, but the court refused the request, and charged the jury that if the plaintiff was set to work shoveling coal under this trestlework without any information as to the peculiar danger which might arise from taking it down, and was not informed that it was to be taken down, it was negligence on the part of the superintendent not to notify him of that fact, and not to give him some information as to the risks from it, since these were not the immediate risks of taking out the coal. This action of the court is the supposed error assigned.

C. D O'Brien, (Thomas, J. Davis, Warren N. Draper, and Theodore Hollister, on the brief,) for plaintiff in error.

John Jenswold, Jr., for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

The ground on which it is contended that the court below should have instructed the jury to return a verdict for the defendant, is that the foremen who tore down the bents were the fellow servants of the plaintiff, and that their negligence was the cause of his injury. It may well be doubted whether these men were ever fellow servants of the plaintiff. That claim rests on the assumption that the plaintiff was engaged with them in the common employment of clearing the dock of coal and other materials. No trestlework was being torn down when the plaintiff was employed. He was hired to load coal from the dock into cars by its side. Neither he nor his foreman knew that any of the trestlework was to be torn down until the timbers fell. The superintendent, by his order, added the work of tearing down these bents to the work in which the plaintiff was engaged if it ever became part of that work at all, after the plaintiff was hired, and without his knowledge. If, however, we concede that the foremen who took down the bents were the fellow servants of the plaintiff in the general work of clearing the dock when he was employed, it is clear that he cannot be charged with their negligence in tearing down the trestlework, for several reasons:

First. In removing these timbers that stood over the plaintiff's head these men were delegated to perform the personal duty of the defendant,--the duty to use ordinary care to keep the place in which the servant was at work reasonably safe. In the performance of this duty they were the representatives of the company. They were performing a duty which the master could not so delegate as to relieve it of liability, and their negligence in that respect was the negligence of the defendant. Railway Co. v. Jarvi, 3 C. C. A. 433, 53 F. 65, and cases there cited; Railroad Co. v. Herbert, 116 U.S. 642, 648, 652, 6 S.Ct. 590.

Second. The danger from the negligence of these foremen in this work was a new and extraordinary risk, known to and created by the defendant after it employed the plaintiff. The plaintiff was ignorant of it. It was the defendant's duty to notify him of it, and it cannot charge him with the assumption of a risk which its own breach of duty kept him from having the opportunity to assume or escape from. A servant assumes the ordinary risks and dangers of the employment upon which he enters so far as they are known to him, and so far as they would have been known to one of his age, experience, and capacity by the use of ordinary care, including the ordinary risks from the negligence of fellow servants engaged in a common employment in the service of a common master. But he does not assume latent dangers known to the master, that are actually unknown to him, and that one of his capacity and experience would not have known by the use of ordinary care. It is the duty of the master to notify the servant of such dangers. Manufacturing Co. v. Erickson, 55 F. 943, and cases cited.

The risk of injury from the tearing down of the trestlework above him was not one of the ordinary risks of shoveling coal or removing materials from the dock beneath it when the plaintiff entered upon his employment. No one was then tearing down the trestlework; no one had been directed to tear it down; the bents above the plaintiff stood firmly upon the dock, safely anchored to those held upright by the coal. He certainly assumed no greater risk than that of their falling by their own weight. He could not foresee that three hours later, by the master's order, they would be torn down upon him, and the could not assume a risk...