KENTUCKY BLOCK CANNEL COAL CO. v. NANCE, 165 F. 44

LURTON, Circuit Judge (after stating the facts as above). That it was the general duty of the coal company to provide a reasonably safe place, having regard to the kind of work involved, in which Nance and his fellows could carry on the work for which they were employed, is incontestable. That it is also the duty of the master to keep the place reasonably safe is equally clear, for the duty of furnishing a safe place to work is a continuing duty. Santa Fé Railroad v. Holmes, 202 U. S. 438, 26 Sup. Ct. 676, 50 L. Ed. 1094.

Manifestly, this duty of providing a- safe place is dependent upon the character of the work to be -done there. Hence, when that work is one of construction, reconstruction, destruction, or repair, the risks which are incident to such places and kinds of work are assumed by the servants there employed. Chesapeake & Ohio R. Co. v. Hennessey, 96 Fed. 713, 38 C. C. A. 307, 314; American Bridge Co. v. Seeds, 144 Fed. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041; Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440.

Neither is the duty of maintaining a safe place so absolute as to charge the master with injuries to servants resulting from the place becoming unsafe through the negligent performance of the work there to be done. Deye v. Lodge & Shipley Mach. Tool Co., 137 Fed. 480, 70 C. C. A. 64; American Bridge Co. v. Seeds, 144 Fed. 605, 613, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041; Baird v. Reilly, 92 Fed. 884, 35 C. C. A. 78; Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021.

The entry in which Nance was working was safe enough before Belcher uncoupled the attachment of this elevated line of pipe to the stationary pump outside. It then became an unsafe and dangerous place for one working under or near this line of pipe. Belcher’s alarm that the uncoupling of the attached outer

section would leave both ■ ends “in the air” and cause a strain upon the line of insecure props likely to topple them over with disastrous results to miners working under or near them was not groundless. This danger was plain to anybody; Vaughn, the mine boss, knew it. Hence his direction that “the boys” should be warned to look out. Belcher, we have seen, realized it, and then foolishly recovered from his alarm and went on with the work.

To say that such a structure could not be taken down without danger, if true, is inconsequential, for in such case it was negligent to take it down at all without full warning, if its fall was likely to injure employés engaged in work so near as to be hurt if it should, fall- But it cannot be said that there was no safe way to remove it. If the work of uncoupling had been begun at the unsupport-' ed end in the .entry, there would have been no danger, for the uncoupling of

section after

section from that end would leave the standing sections as secure as before. Adopting a dangerous method of removing this fixture, it was plainly incumbent upon somebody that Nance and his fellows, whose place of work-was thereby made dangerous, should be warned, that they might either refuse to work in so dangerous a place while the removal was going on or assume the risk of the new danger, relying upon watchfulness to escape in case the ■props should begin to fall. In the latter case the effect of notice would have been to put Nance to an election as to whether he would take the risk or quit.

But he was given no election, nor did he have any reason to suspect this danger, and that a safe place was to be converted into a dangerous place by this change in the security of this line of pipe. But it is said that the failure to give warning was the fault of Belclier, and that Belcher was the fellow servant of Nance.

There are a line of cases in which it is held that, where the master has provided competent co-servants, exercised due care in providing a reasonably safe place to work and safe appliances, and, where the work is complicated, provided suitable rules and regulations for the general operation of the plant or machines, the duty of 'warning against perils incident to the operation of the plant, or conduct or character of the work being carried on, is not one of those personal duties of the master which may not be delegated.

Where the master has exercised reasonable care in respect to the matters referred to, the supervision, control, and management of the details may be left to the judgment and discretion of those superior servants who are intrusted with the management. The general rule is illustrated and stated in many cases by the Supreme Court and this court. Some of the cases wre cite: Central Railroad Co. v. Keegan, 160 U. S. 259, 267, 16 Sup. Ct. 269, 40 L. Ed. 418; Northern Pacific Railroad Co. v. Dixon, 194 U. S. 338, 24 Sup. Ct. 683. 48 L. Ed. 1006; Martin v. Atchison, Topeka & Santa Fé Ry. Co., 166 U. S. 399, 463, 17 Sup.

C.t. 603, 44 L. Ed. 1051 ; Grady v. Southern Railway Co., 92 Fed. 491, 34 C. C. A. 494; Deye v. Lodge & Shipley Mach. Tool Co., 137 Fed. 480, 70 C. C. A. 61; Penn. Railroad Co. v. Fishack, 123 Fed. 465, 59 C. C. A. 269; Kinnear Mfg. Co. v. Carlisle, 152 Fed. 933, 82 C. C. A. 81. But the principle appealed to has no proper application here. The removal of the drainage pipe was, in no legitimate sense, one of the details or incidents of the work of operating the mine, regarding it, for the purpose, as a unitary plant or great machine.

The drainage pipe was a fixture, an appliance essential to the proper drainage of the mine. If it had fallen because proper care had not been used in its construction or maintenance, and injured servants whose duties called them to pass or work under or near it, there could be no doubt of the master’s liability, for it was a part of the place where they were to work. By the direction of the master, acting by the mine boss, the

section outside is uncoupled for the purpose of removing the pipe in sections, and the whole structure comes tumbling down upon the heads of men having nothing to do with the construction, removal, or maintenance of the pipe and no knowledge of what was going on. Upon what principle can we distinguish between liability with or without the active intervention of the master in producing the catastrophe?

The duty of exercising due care in taking this structure down, so as not to injure men working under it, was just as much a personal, nondelegable duty of the master as the original duty of care of construction and maintenance. Belcher’s work was not a work of operation; Nance’s work was. Nance was not engaged with Belcher in his work of construction or demolition. If he had been, as respects that work, he would have been his fellow servant. A factory chimney is built so carelessly that it falls and injures men at work in the factory.

Or such a chimney is being taken down by servants of the master, and it falls, because of their lack of due care, upon the other servants at work in the factory. The cases are parallel in principle. Tn both illustrations the work is the personal work of the master, for in neither instance was it a work of operation. The case, upon its facts, is nearer to Northwestern Fuel Co. v. Danielson, 57 Fed. 915, 6 C. C. A. 636 (C. C. A., 8th Circuit, opinion by Sanborn, Circuit Judge). Certain men were employed to shovel coal.from a pier into a train alongside a coal track.

Above them was a trestle work which was being taken down by another'gang.of men. Through the want of due care by the men engaged in removing the trestle work, a bent fell and injured one of the gang of coal shovelers below. There was a judgment against the common master.

The judgment was affirmed both upon the ground that the men taking down the bents of the trestle were doing the personal work of the master in discharge of the duty of using due care to keep safe the place where the work, of the coal shovelers was being done, as well as upon the ground that the latter were ignorant that the work was going on and had not, therefore, assumed the new risk incident thereto. Judgment affirmed.