HARDER & HAFER COAL MIN. CO. OF SULLIVAN COUNTY, IND., v. SCHMIDT, 104 F. 282

After stating the facts as above, GROSS CUP, Circuit Judge, delivered the opinion of the court, as follows: Indisputably the plaintiff in error was bound by law to furnish to its employees safe gangways and working places. The statutes of Indiana are, in this respect, only supplemental to the common law obligations. If, as the jury found, the plaintiff in error failed in the performance of this duty, causing the injury for which the action is brought, the action is maintainable, unless Schmidt was there without invitation, or had notice of the dangerous character of the place.

The two inquiries thus suggested constitute the fighting ground of this case. The evidence discloses that the imminence and nature of the danger Avas called to the attention of the mining boss by Yochem; that Yochem was assured that his apprehensions were unfounded; and that Schmidt had no knowledge of their existence.

Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where the nature of the menace is so uncertain as to cause discussion between the employees and the employer, with the result that the employer dissuades the employee of his apprehension; and especially so where the particular employee injured is without any knowledge of its existence. This disposes of the question of contributory negligence, and of any question growing out of the assumption of risk by the defendant in error.

It is not necessary, in this case, to determine, as a matter of law, growing out of his general employment, whether Schmidt was, at the place and time of the injury, within the protection of the general rale imposed upon employers to provide a safe place for their employees. The jury found, as a matter of fact, that Schmidt was present by the permission, either express or implied, of the superintendent. The evidence was somewhat uncertain whether the superintendent told Yochem, on the morning in question, that Schmidt might assist Mm.

Yochem was an illiterate witness, and his answer might be interpreted to mean, either that he had told Schmidt to help him, and Schmidt said it was all right; or that he had told the superintendent that he had so told Schmidt, and the superintendent had said it was all right. But there is testimony of no uncertain kind that Yochem was permitted more than one helper, and, therefore, Schmidt was present, on the morning in question, under this general permission.

The instructions of the court upon these issues were certainly as favorable as the plaintiff in error could demand, and we can see no reason why the verdict of the jury should not now be controlling. The case made out, then, is that of an employee, permitted by the employer to go to a certain place in the mines, and there receiving injuries from causes of which ,he had no previous knowledge, but which were known to the employer, and which should, in compliance with its duty to provide a safe place to work in, have been obviated. Such a case is, of course, maintainable. The judgment will be affirmed.