Word En v. Gore-Meehan Co.

• Citation: 78 A. 422,83 Conn. 642
• Court: Supreme Court of Connecticut
• Decision Date: 16 December 1910
• Parties: WORD EN v. GORE-MEEHAN CO.

78 A. 422

83 Conn. 642

WORD EN

v. GORE-MEEHAN CO.

Supreme Court of Errors of Connecticut.

Dec. 16, 1910.

Appeal from Superior Court, New Haven County; William L. Bennett, Judge.

Action by Edith G. Worden, as administratrix, etc., against the Gore-Meehan Company to recover damages for personal injuries resulting in the death of plaintiff's intestate. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.

Seymour C. Loonils and Walter D. Makepeace, for appellants.

Earlliss P. Arvine and Robert J. Woodruff, for appellee.

THAYER, J. The defendants in constructing an underground tunnel had opened a perpendicular shaft extending 50 feet into the ground, and from its foot had driven a portion of the tunnel about 250 feet in length in an easterly direction and about 500 feet in a westerly direction, the portion extending to the east being known as "Heading No. 2," that extending to the west as "Heading No. 3." The plaintiff's intestate was at work for the defendants as a laborer in heading No. 3 when a cave-in occurred in heading No. 2 whereby a large quantity of water, mud, and quicksand rushed into the tunnel, filling both headings so suddenly that the intestate was shut off from reaching the shaft, his only means of exit, and was suffocated in the tunnel. It was charged in the complaint that the defendants were negligent in allowing the intestate to work in heading No. 3 while heading No. 2 was in a dangerous condition, that they were negligent in allowing heading No. 2 to be opened without timbering the sides and roof thereof so that they could not cave in, and that they were negligent in failing to discover the dangerous condition of heading No. 2, although they knew that the heading was cut through shallow rock, and that the rock roof of the heading had been weakened by repeated blasts of dynamite and was weak and leaky, and also knew that at the point where it was weakest there was a pond of water and a mass of quicksand and mud about 40 feet deep immediately over it. There is no direct allegation that heading No. 2 was in a dangerous condition, but there is a clear inference to be drawn from the allegations that the plaintiff's claim is that, by reason of the weak and leaky rock roof of the heading and the mass of superincumbent water, quicksand, and mud, conditions which were known to the defendants, and the fact that they had not properly timbered the heading, it was in a dangerous condition, that its condition rendered the entire tunnel a dangerous and unfit place for the intestate to work, and that in employing him in No. 3 under these circumstances they neglected the duty which they owed to him, and caused his death thereby. The complaint is a very imperfect piece of pleading, but it was not demurred to, and all the paragraphs except the first, which alleged that the defendants were constructing the tunnel, were denied. This was substantially the general issue, and the defendants by pleading and going to trial upon a general denial waived all mere formal defects in the complaint. Levy v. Metropolis Mfg. Co., 73 Conn. 559, 563, 48 Atl. 429. The defendants after verdict moved in arrest of judgment because the complaint contained no allegation that the intestate did not know nor have equal means with the defendants of knowing the unsafe conditions, and because no evidence had been offered from which the jury could properly find such lack of knowledge or means of knowledge. The record shows that there are no such allegations in the complaint, and that no evidence was offered to prove the intestate's ignorance of the conditions complained of, or that he did not have equal means with the defendant of knowing of the conditions and their dangers. We think that such allegations and proof were not necessary in the present case. Where a servant sues his master for neglect of duty in failing to provide reasonably safe machines or instrumentalities for the former's use in his work we have held that he must allege knowledge or its equivalent on the part of the master of the dangerous condition of the machine or instrumentality and that an allegation of want of knowledge or means of knowledge on the part of the servant was an essential part of a complaint. O'Keefe v. National F. B. & P. Co., 66 Conn. 38, 46, 33 Atl. 587; Elie v. Cowles & Co., 82 Conn. 236, 240, 73 Atl. 258. These allegations were necessary in the cases referred to to show a neglect of duty on the part of the master. The servant in engaging for service is held to have assumed all the known or obvious dangers ordinarily incident to the employment, among which are those arising from the situation and use of the machines and instrumentalities provided for the work, but not those arising from the master's negligence. When, therefore, he counts upon a defective machine or instrumentality or upon any defective condition which is an ordinary incident of the business so as to be within the risks which he is held to have assumed he must, to make out a prima facie case, allege and offer evidence to prove facts which show that the risk arising from the defect complained of was not assumed by him, and that it was due to the defendant's neglect of a duty owed to the servant. This, whether the defect was a latent one existing at the time of the employment and known to the master and unknown to the servant, or was one which arose subsequent to the employment through the neglect by the master of his duty to inspect or repair, requires an allegation of knowledge of the defect on the part of the master, and of absence of knowledge on the part of the servant, or what is equivalent thereto. This is necessary in order to show that the risk was not assumed by the servant, and that the defect was one of which the master should have given the servant notice, or which he should have prevented or remedied. But extraordinary risks, such as are not ordinarily incidents of the employment, are not assumed by the servant. He may by his conduct, when he has knowledge of such risks, assume them. Girard v. Grosvenordale Co., 82 Conn. 271, 275, 73 Atl. 747. But such assumption of the risk is not imputed to the relationship of the parties as master and servant or the contract of employment. It arises from the fact that the servant knowing of the abnormal risk has willingly encountered it. In the absence of facts showing that he has assumed such a risk he is not presumed to have done so, and he is not required to allege or prove that he had not assumed them or had no knowledge of them in order to make out a prima facie case. The rule is different in this class of cases from that which applies to ordinary risks, where there is a presumption that they were assumed from the relation existing between the parties by reason of the contract of service. Labatt, Master and Servant, vol. 2, §§ 855, 856; Vohs v. Shorthill & Co., 130 Iowa, 538, 107 N. W. 417; Duffey v. Consol. B. C. Co. (Iowa) 124 N. W. 609; Tucker v. Northern Pac. Ter. Co., 41 Or. 82, 68 Pac. 426, 428. In such cases it is for the defendant to show knowledge and assumption of the risk on the part of the plaintiff. The risk in the present case was an extraordinary one, arising after the service began through the defendants' negligence as claimed by the plaintiff. It was not necessary for the plaintiff to allege or prove want of knowledge to present a prima facie case, and for this reason the motion in arrest was properly denied.

A motion to direct a verdict for the defendants and to set aside the verdict based upon the same grounds was also properly denied.

The defendants requested the court to charge: "The work in which the plaintiff was engaged was necessarily dangerous by reason of his position while at work, and under such circumstances the rule of law which requires a master to furnish his servant a reasonably safe place to work does not apply." The request was properly refused. The fact that the work was necessarily dangerous did not excuse the defendants from using reasonable care to make the place in which the intestate worked reasonably safe. In most cases it is not possible to make the servant's place of service absolutely safe, and the law does not require it. It must be made reasonably safe according to the circumstances so far as reasonable care can make it so. What would be a reasonably safe condition must in any case depend upon the circumstances and necessities of the case, the nature of the work, and the results to be accomplished. The more dangerous the work the more reason there would seem to be that the defendants should use reasonable care to make...