Williams v. Bunker Hill & Sullivan Min. & Concentrating Co.

• Decision Date: 03 August 1911
• Docket Number: 1,474.
• Citation: 190 F. 79
• Court: United States Circuit Court, District of Washington
• Parties: WILLIAMS v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

190 F. 79

WILLIAMS v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

No. 1,474.

United States Circuit Court, D. Washington, Eastern Division.

August 3, 1911

Plaintiff an employe of a mining company, was injured by coming in contact with a trolley wire heavily charged with electricity. Plaintiff was in full possession of all his faculties, and was intelligent and experienced. He had worked in the mine for five months, and had daily ridden in and out of the mine on a train, and could see the exposed trolley wire within a few inches of his eyes, and could have known that it was not guarded or protected, and that it conducted sufficient electricity to propel a train of some 10 or 12 cars. In plaintiff's daily walks through the dark tunnels, the wire in many places came down as low as his shoulder within a few inches of his head, and he consistently avoided contact with the wire under such conditions, and saw his fellow workmen take the same precautions. He testified that he knew if he came in contact with the wire, he would get hurt, but did not know there was enough power to harm him. Held, that he assumed the risk.

Belden & Losey, B. K. Wheeler, and Maury & Templeman, for plaintiff.

Myron A. Folsom, for defendant.

RUDKIN District Judge.

The plaintiff in this action is a subject of the king of Great Britain and Ireland, and the defendant a corporation organized and existing under the laws of the state of Oregon. On the 10th day of July, 1910, the plaintiff was injured while in the employ of the defendant, through coming in contact with a trolley wire maintained and used by the defendant for the purpose of propelling cars in and out of its mine near the town of Kellogg, in the state of Idaho. A motion for nonsuit was interposed at the close of the plaintiff's testimony, and a motion for a directed verdict at the close of all the testimony; but these motions were denied, the court reserving the right to reconsider the questions thus presented on motion for judgment notwithstanding the verdict, in the event the jury should return a verdict in favor of the plaintiff. This practice is sanctioned by the local laws of the state of Washington. Roe v. Standard Furniture Co., 41 Wash. 546, 83 P. 1109; Quackenbush v. City of Yankton, 186 F. 991. Such a course was deemed in the interest of society and in the interest of the parties, to the end that a final judgment may be ordered on the verdict by the appellate court, should this court err in the conclusion it is about to reach.

The negligence charged in the complaint consisted in a failure on the part of the defendant to insulate the trolley wire, or to guard or protect it, and a failure to warn the plaintiff against the danger of coming in contact with a trolley wire charged with electricity-- a danger of which he is alleged to have been wholly ignorant. Of course, the trolley wire could not have been insulated without wholly destroying its functions; but for the purposes of this case it will be conceded that the defendant was negligent in other respects, and that the plaintiff was wanting in contributory negligence. The motion for a judgment notwithstanding the verdict is interposed on the sole ground that the plaintiff assumed the risk, and this is the only question I deem it necessary to discuss or consider.

The rule is well established that every servant assumes certain risks incident to his employment, and the application of that rule to the facts of this case is all that remains. As said by the court in Butler v. Frazee, 211 U.S. 459, 29 Sup.Ct. 136, 53 L.Ed. 281:

'One who understands and appreciates the permanent conditions of machinery, premises, and the like, and the danger which arises therefrom, or by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, and voluntarily undertakes to work under those conditions and to expose himself to those dangers, cannot recover against his employer for the resulting injuries. Upon that state of facts the law declares that he assumes the risk. The rule is too well settled to warrant an extensive discussion of it, or an attempt to analyze the different reasons upon which it has been held to be justified. The rule of assumption of risk has been thought by many a hard one, when applied to the complicated conditions of modern industry, so largely conducted by the aid of machinery propelled by irresistible and merciless mechanical power, and the criticism frequently has been made that the imperative need of employment leaves to the workman no real freedom of choice, such as the rule assumes. That these considerations have had an influence is shown by the notorious unwillingness of juries to apply the rule, and by the legislative modifications of it which, from time to time, have been made, as, for instance, by Congress in the safety appliance law. * * * But the common law in this regard has not been modified in the District of Columbia, and we have no other duty than to enforce it.'

Again the court said:

'Where the elements and combination out of which the danger arises are visible, it cannot always be said that the danger itself is so apparent that the employe must be held, as matter of law, to understand, appreciate, and assume the risk of it. * * * The visible conditions may have been of recent origin, and the danger arising from them may have been obscure. In such cases, and perhaps others that could be stated, the question of the assumption of the risk is plainly for the jury. But where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common

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