ACME HARVESTING CO. v. ATKINSON, 208 F. 244

KOHLSAAT, Circuit Judge (after stating the facts as above). The rule of law applicable here was stated by the Supreme Court of the United States in Hough v. Railway Co., 100 U. S. 214, 25 L. Ed. 612.

In that case a railroad engineer was injured through defects in his engine, of which he was advised, and concerning which he had made complaint to the railroad company, and received assurance that the defects would be removed. “But, there can be no.doubt,” says the court speaking through Justice Harlan, “that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept” ■ — citing Cooley on Torts, 289, wherein it is said that: “If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes Ms assurances good.

Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engaged to assume the risk.” On page 225 of 100 U. S. (25 L.

Ed. 612) the court says: “If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery, upon the ground of contributory negligence.” The court further holds in said case that the fact that the engineer knew of the alleged defect was not, under the circumstances, and as a matter of law, absolutely conclusive of want of due care, and that in such a case the question of negligence was for the jury to decide.

The, same court reaffirmed the rule above laid down in Northern Pacific R. R. Co. v. Babcock, 154 U. S. 201, 14 Sup. Ct. 982, 38 L. Ed. 958, wherein the court says-: “As the employes had given notice of the defect to the proper officer whose duty it was to make the repairs, and the impression had been conveyed to him that these would be made, he had a right to assume that they had been made, and to act upon that assumption.

The mere fact of his taking the engine out at midnight under the circumstances did not, of itself, unsupported by other proof, imply an assumption by him of the risk resulting from the dangerous and defective condition of the attachment to the engine,” —citing Hough v. Railway, supra. In the case just quoted from in 154 U. S., the accident occurred 10 or 12 days after the promise; he having been laid up in the meantime. The same rule was laid down in Missouri Furnace Co. v. Abend, 107 Ill. 44-52 (47 Am.

Rep. 425): “The reason, upon which the rule is said to rest,” says the court, “is that the promise of the master to repair defects relievos the servant from the charge of negligence by continuing in the service after the discovery of the extra perils to which he would he exposed.” In this case the defect consisted of both original misarrangement of the oiling appliance of the engine, whereby the oiler was unnecessarily exposed when oiling, and failure to repair. “It is, however,” says the court at page 53 of 107 Ill. (47 Am.

Rep. 425), “a question of fact, to he found as any other fact in the ease, whether the servant is guilty of negligence by continuing to use defective machinery for a reasonable time for the fulfillment of the promise after the master has promised to make the needed repairs.” In Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N. E. 714, plaintiff, on about the last of February, 1888, complained to his foreman that the floor surrounding a shaper with which he was working had become, by constant use, slippery.

The foreman promised “to fix it.” After two weeks had elapsed, and nothing having been done, plaintiff complained to the superintendent, who said he would see to it. About two weeks later, he again complained to his foreman, who again promised to remedy the defect. Nothing was done. ' On April 12th, or about 12 days after the last promise to repair, he slipped, whereby his hand was caught in the knives and cut off. A verdict for plaintiff was sustained.

The authorities almost uniformly sustain the proposition that a person may rely upon a promise to repair without being guilty of contributory negligence,-and that the question of reasonable time is one of fact for the jury. Here the jury have found for the plaintiff on that point, and we find nothing in the evidence to show that such finding was not based on and justified by the facts appearing of record. The defendant, however, insists that plaintiff undertook to watch the defective parts and thus avoid an accidental fall of the hammer.

The danger arising from the defects set out were not incidental to the operation of the trip hammer, and cannot be considered as one of plaintiff’s assumed risks, nor could the master in this manner shift his responsibility. No servant can be deemed to have assumed the risk growing out of a negligent master. Did it then become the duty of plaintiff to insure his own safety by assuming the extra task of performing the master’s task of providing safe machinery?

From the evidence it appears, as above noted, that the room in which plaintiff was working was noisy; that the bolt and nuts in question were seven feet from the floot; that it was not easy to see when the nuts began to work away from the bolt; and that plaintiff’s work in handling the metal and adjusting it to the dies and dropping the hammer was such as to require his close attention. Under the circumstances he could not have been expected to give that constant attention to the- condition of the bolt and nuts which their uncertain operation required without neglecting his real task.

Moreover, there was evidence which the jury was at liberty to believe, to the effect that the foreman himself had, just before the accident, inspected the machine. The jury found that plaintiff had not been guilty of negligence in respect to keeping watch of the bolt and nuts. Even had plaintiff failed to pay attention to the master’s orders to watch the bolt and nuts, it would be well within the province of the jury to have determined that such requirement of the master, in the absence of willful negligence on plaintiff’s

part in the premises and under the circumstances of this case, was unreasonable, and not such as to relieve the master from knowingly failing to provide a reasonably safe place in which the servant might perform the work for which he was hired. The requirement of the law in such cases is not a mere formality. It is inconceivable that defendant could not have remedied the defects herein complained of with little effort. The failure to repair has closed the door of opportunity for a lifetime to plaintiff. We conclude that the verdict of the jury and the judgment of the district coyrt were warranted by the evidence.

We do not deem the other errors assigned well taken. The judgment of the district court is affirmed;