Utah Consol. Min. Co. v. Paxton
| Decision Date | 08 November 1906 |
| Docket Number | 2,338. |
| Citation | 150 F. 114 |
| Parties | UTAH CONSOL. MINING CO. v. PAXTON. |
| Court | U.S. Court of Appeals — Eighth Circuit |
(Syllabus by the Court.)
Under the statute of a state which provides that a servant who is authorized by his master to direct another of the latter's servants in the discharge of his duty is a vice principal, a furnaceman, in response to a complaint of danger from a car, promised a grater, whom he had authority to direct in his work, that he would notify a carman, employed by the same master under a different foreman, to stop his car before it came to the furnace, and that the grater was at work upon the track clearing the hopper of the furnace just below it. Such a notice to the carman had frequently caused the latter to stop his car before coming to the workmen similarly situated, and to hold it until they finished their work. In reliance upon the promise, the grater went to work upon the track and was injured by a car which ran upon it.
Held the promise of the furnaceman was within the scope of his agency, and it relieved the grater from the assumption of the risk.
There is an exception to the rule that a servant assumes the ordinary risks and dangers of his employment, to the effect that, where a servant makes complaint to his master of a dangerous defect in his place of work or in the appliances furnished him, and the master promises to remedy it, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from it is so imminent that a person of ordinary prudence would not continue in the employment after the discovery of the condition.
On July 2, 1904, James Paxton was working as a grater on one of the reverberatory furnaces of the defendant, the Utah Consolidated Mining Company, a corporation, at its Highland Boy smelter. His duty was to open up the grates and do whatever the furnaceman directed him to perform. Thaxton was the furnaceman under whose direction he was employed. The smelter was a large building 300 feet long and 50 feet wide. There were four furnaces ranged along each side of this building, and over these furnaces was a railroad track upon which a trolley car was operated to carry coal to the furnaces. The hoppers of the furnaces opened beneath the rails, were about 2 1/2 feet wide, and the coal was dropped into them from the trolley car which passed above them. The coal in the furnace upon which Paxton was employed became clogged, and he and McCandless, a helper, were sent by Thaxton to punch the coal down through the hopper by the use of an iron bar and a sledge hammer. In order to do this work they were compelled to occupy the railroad track above the furnace. The atmosphere was smoky and hot, and after working there a short time they went down to Thaxton and told him that they could not work, that it was smoky and dark, and they were afraid they would be run over by the car. Thereupon he went upon the railroad track with them and tried to persuade them to go on with their work. They told him that if he did not go and have the car stopped, they would not work there. He replied: ' Paxton had seen a furnaceman go and report to the carman that there were men up there at work and had then seen the car stop before it came to the furnace where they were laboring. He and McCandless accordingly waited about 15 or 20 minutes and then commenced to work upon the track driving the coal down into the hopper, when a car came along and struck and injured him. The furnaceman had not informed the carman that Paxton and the helper were at work upon the track. The testimony that the furnaceman promised to report to the carman that they were at work was contradicted. Counsel for the defendant requested the court to instruct the jury to return a verdict in its favor, but the court refused, and this ruling is...
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