NORMAN v. WABASH R. CO., 62 F. 727

TAFT, Circuit Judge, after stating tbe case as above, delivered tbe opinion of tbe court. Tbe law governing tbe reciprocal duties of employer and employé with reference to tbe safe condition of tbe place where tbe employé is to work, or of tbe machinery and tools with which be is to do bis work, is well settled. It is the duty of tbe employer to exercise ordinary care to provide and maintain a reasonably safe place in which tbe employé is to perform bis services, soi that tbe employé shall not be exposed to unnecessary and unreasonable risks.

The employé has tbe right to presume, when directed to work in a particular place, that reasonable care has been exercised by bis employer to see that tbe place is free from danger, and, in reliance upon such presumption, may discharge bis duties in such,place, unless there are obvious dangers which would lead a reasonably prudent employé either to refuse to work in tbe place, or to make complaint of the same to bis master.

If, however, tbe danger is not actually known to tbe employé, or would not become known to an employé of reasonable prudence performing tbe duties imposed on him, be cannot be charged with contributory negligence in tbe happening of an injury to Mm by reason of the condition of the place in which he works. The law on the subject has been most clearly and comprehensively stated by Judge Hanborn, speaking for the circuit court of appeals for the eighth circuit in the case of Railway Co. v. Jarvi, 10 U. S. App. 439, 3 C. C. A. 433, 53 Fed. 65.

In that case the plaintiff was a miner, who was injured by the fall of a large stone from the roof of the mine, and the (piesdon was whether the plaintiff had been reckless in not discovering or knowing the dangerous condition of the roof from which the stone fell.

The learned judge, speaking of the obligation upon the servant, says: “He cannot recklessly expose himself to known danger, or to a danger which an ordinarily prudent and intelligent man would, in his situation, have apprehended, and then recover of the master for an injury which his own recklessness lias caused. * s * But the degrees of care in the use of a place in which work is to be done, or in the use of other instrumentalities for its performance, required of the master and servant in a, particular case may be, and generally are, widely different.

Kacli is required to exercise that degree of care in the performance of his duty which a reasonably prudent person would use under like circumstances; but the circumstances in which the master is placed are generally so widely different from those surrounding the servant, and the primary duty of using care to furnish a reasonably safe place for others is so much higher than the duty of the servant to use reasonable care to protect himself in a case where the primary duty of providing a safe place or wait' machinery visits on the master, (hat a reasonably prudent person would ordinarily use a higher degree of care to keep the place of work reasonably safe, if placed ill the position of the master who furnished it than if placed in that of the servant who occupies it.” See, also, Kane v.

Railway Co., 128 U. S. 91-94, 9 Sup. Ct. 16; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590. Coming to apply these principles to the evidence disclosed by this record, the first important fact is that the floor of the north side of the she'd had been in bad repair for several years. The company must be presumed to have had knowledge of this, through its proper officers.

The plaintiff denied that he knew of the defects in the floor, and testified that he had been so few times in the north side of the shed as to make his ignorance of its condition possible and reasonable. The fact that the foreman swears that Norman was every day in the north side of the sheds and had been there several hundred times, merely produces a conflict between the foreman and Norman, which it was for the jury to decide. The case made by the evidence for the plaintiff therefore was this: He received an injury when working in the sheds of the defendant as its employé.

His injury was caused by the defective condition of the floor. The defendant company knew of this defective condition. Norman did not know of it. If he did not know it, he had no reason to expect that the moving of the truck upon the floor would cause the remaining bale to fall, and therefore, to kneel where he did kneel was not a voluntary or negligent exposure of himself to obvious injury. Manifestly, plaintiff had the right to submit to the jury the issue whether he was negligent or not. The judgment of the circuit court is reversed, with directions to order a new trial.