CROOKSTON LUMBER CO. v. BOUTIN, 149 F. 680

ADAMS, Circuit Judge, after stating the case as above, delivered the opinion of the court. The defendant was engaged in a hazardous business. It owed a duty to its employes to exercise all reasonable care to provide them with suitable and reasonably safe machinery and instrumentalities with which to do their work. The evidence, we think, was sufficient to go to- the jury on the issue of negligence as charged.

It tended to show that defendant did not exercise reasonable care in keeping the log carriage well in hand or sufficiently under control during the preliminary period of speeding up its mill, to prevent its insidious and dangerous movement along the track where employes were likely to be. There was also substantial evidence tending to show that the decedent complained to the superintendent of defendant company about the dangerous condition of the machinery, and particularly about the sudden and uncontrolled movement of the log carriage, and secured a promise from him to repair the same.

The last mentioned facts, unless the risk of remaining was so obviously and imminently dangerous that a person of ordinary prudence would not have taken it while the promised repairs were being made, warranted the decedent in continuing to work for the defendant for a time thereafter reasonably sufficient to enable it to make good the promise, without assuming the risks ordinarily incident to the use of known defective machinery (Hough v. Texas Pacific R. Co., 100 U. S. 213, 225, 25 L. Ed. 612; District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946; Northern Pacific Railroad Co. v.

Babcock, 154 U. S. 190, 200, 14 Sup. Ct. 978, 38 L. Ed. 958; Cudahy Packing Co. v. Skoumal, 60 C. C. A. 306, 125 Fed. 470, 473; Homestake Min. Co. v. Fullerton, 16 C. C. A. 545, 69 Fed. 923; Roccia v. Black Diamond Coal Min. Co., 57 C. C. A. 567, 121 Fed. 451); hut they did not relieve him from the obligation to exercise reasonable care and precaution for his own safety while so continuing to perform the work. Defenses predicated upon assumption of risk and contributory negligence are essentially different. Choctaw & Oklahoma, etc., R. R. Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96; St.

Louis Cordage Co. v. Miller, 61 C. C. A. 477, 126 Fed. 496, 501, 63 L. R. A. 551; Narramore v. Cleveland C. C. & St. L. Ry. Co., 37 C. C. A. 499, 96 Fed. 298, 304, 48 L. R. A. 68; Cleveland C. C. & St. R. Ry. Co. v. Baker, 33 C. C. A. 468, 91 Fed. 224; Peirce v. Clavin, 27 C. C. A. 227, 82 Fed. 550, 553; Miner v. Connecticut River Railroad, 153 Mass. 398, 403, 26. N. E. 994.

Therefore, notwithstanding the fact that decedent, by giving notice to defendant of the defective condition of its machinery and securing a promise of its reparation, might have escaped for some time the personal assumption of the risk ordinarily attendant upon continuéd service with such defective machinery, he might, and as will be presently seen, did .not thereby re•lieve himself frbm the necessity of exercising reasonable care for his own safety in performing the service, or deprive the defendant of the ■’defense of contributory'negligence if he failed to do so. In District of Columbia v.

McElligott, supra, the Supreme Court, in commenting upon the care required of a person situated like the ‘decedent, said: .“If he exposed himself to dangers that were so threatening or obvious as ••likely to cause injury at any moment, he would, notwithstanding any promises or assurances of the district supervisor of the character alleged, be guilty of such contributory negligence as would defeat his claim for injuries so received.” In St. Louis Cordage Co. v.

Miller, supra, this court, after an-nouncing the general doctrine of assumption of risk in ordinary cases, and calling attention to the exception relieving an employe from its obligation after making complaint and securing a promise of reparation said: : “Of course cases which fall under the exception are not governed by the •rule, but the only defense remaining in such cases is that of contributory negligence.” And in Homestake Min. Co. v.

Fullerton, supra, this court said the rule which permits an employe to recover in cases coming within the exception is subject to the proviso: “That the servant exercised due care and that the defect complained of did not render the machinery so imminently and immediately dangerous that he should have declined to use it at all until it was repaired.” See, also, 1 Labatt on Master & Servant, § 432.

In the light of the foregoing exposition of the law, we cannot agree with’ plaintiff’s counsel that the complaint of defective machinery and the promise by defendant to repair it rendered it liable in this action— .notwithstanding any negligence of the decedent.

Such is not the law. 'He might have been' relieved from the assumption of ordinary risks 'attendant upon the úse of defective machinery, but he still remained under the obligation of exercising reasonable care for his own safety. ^ The rule defining reasonable care in any given case to be that care .yrijich ordinarily prudent persons commonly exercise in like circum's'tánces is probably a sufficient generalization, provided emphasis is placed, upon’ -the last italicized words..

The circumstances surrounding a; person at the time of his injury naturally, as well as a matter of law, furnish an important consideration in 'determining whether due care is observed by him. When he has such knowledge of danger incident to the use of machinery as prompts him to complain to his master about it, and to require its repair as' a condition for remaining longer in his service, such circumstances indicating imminent personal peril would most naturally suggest to an ordinarily prudent person the necessity for unusual care and watchfulness for his own safety.

The triers of the fact should therefore take into consideration this naturally prudent instinct in determining whether on a given occasion one has exercised ordinary care as just defined. Labatt on Master & Servant, supra. It is a well-settled rule, recognized by the courts of the United States, that a question of law always arises at the close of the evidence in any case, whether there is any substantial proof warranting a verdict in favor of the plaintiff. In applying this rule, consideration most favorable to plaintiff must be given to all the evidence and reasonable inferences arising therefrom (Mt.

Adams, etc., Ry. Co. v. Lowery, 20 C. C. A. 596, 74 Fed. 463) ; the undisputed evidence must be so conclusive (1) that all reasonable men in the exercise of an honest and impartial judgment can draw but one conclusion from it (Chicago, etc., Ry. Co. v. Price, 38 C. C. A. 239, 97 Fed. 423); and (2) that the court would in the exercise of sound judgment set aside a verdict returned in opposition to it (Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506; Delaware, etc., Railroad v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Elliott v. Chicago, Mil., etc.., Railway, 150 U. S. 245, 14 Sup. Ct. 85, 37 L.

Ed. 1068). The rule just announced is equally applicable when the issue of contributory negligence is involved. Elliott v. Chicago, Mil., etc., Railway, supra; Pyle v. Clark, 25 C. C. A. 190, 79 Fed. 744; Missouri Pacific Railway Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921; Claus v. Northern Steamship Co., 32 C. C. A. 282, 89 Fed. 646; Rich v. Chicago, Mil., etc., Railway (just decided by this court) 149 Fed. 79. Tested, by the rule just announced in any or all its phases, we entertain no doubt about the contributory negligence of the decedent in this case.

Conceding to him the full right of going to the head sawyer’s side of the pulleys, and conceding that it was his duty to clear that side of the rim of the upper pulley as well as his own, both of which are disputed by defendant, his method of doing the work according to the undisputed evidence was peculiar to himself. There is no substantial proof that any one else ever undertook to dean that side of the rim when standing as and where the decedent did. There is satisfactory proof that no head sawyer whose employment expressly comprehended that duty ever undertook to do it that way.

Only one witness out of many who were examined testified that he had ever seen decedent do it in that way, and this witness said that it could have been done some other way, but that it appeared to be the easier way to, do it by standing in the place where decedent stood. It must be borne in mind that the cleaning could not have been done when the saw was not in motion. The pulley necessarily had to revolve in order to clean the rim, and with its .revolution the saw was also necessarily in motion, so that any proximity to the saw while cleaning the rim was potentially dangerous.

The decedent was in the prime of early manhood, and possessed of unimpaired faculties of mind and body' so far as the record discloses. He knew of the creeping tendency of the carriage, and was aware of its lurking 'danger and horrible consequence. He had only a few days before warned a fellow laborer of its liability to suddenly start and move upon the tracks toward the saw, and cautioned him to be careful. Only two or three days before, he had given notice to his employer that he could not continue in its service, if it did not put a stop to that dangerous action.

With all this knowledge, at a time when the mill was speeding up and when alone, the creeping motion could occur, and when, as known by him, it was liable to occur, he took his place on the track over which the carriage would necessarily 'move, in front of and close to the rapidly moving saw, and occupied himself intently with cleaning the rim of the pulley.

He was in a place of imminent danger, in such circumstances, and with such knowledge of his peril as, under the rulé requiring him to exercise the care which ordinarily prudent persons do under like circumstances, imperatively demanded immediate, constant, and anxious vigilance and watchfulness on his part. He exercised no vigilance at all. He could have detected the approach of the carriage by looking, but he did not.

He paid no heed to the momentary possibility well known to him of the carriage moving down upon him, but stood there, back towards its approach, until about the moment it struck him, when, by its touch and a warning shout of one of his co-employés, he was aroused from his danger too late to save himself from the inevitable consequence.

Tested by an3 expression of the rule governing the subject, found in text-books or adjudicated cases, the conduct of the decedent, as disclosed by uncontradicted and indisputable, proof, was so heedless of consequences, so hazardous and reckless as to clearly constitute contributory negligence on his part, and to warrant and require the court to say so as a matter of law.

Counsel for plaintiff ask us to say that, because of the promise to repair made two or three days before his death, the decedent had a right to assume that the machinery had, during those two or-three days, been so repaired as to prevent the creeping motion of the carriage.

Such repairs probably would have involved a reconstruction of the valves leading into the cylinder, and possibly of the pipes leading from the boiler to the cylinder, and of the rod leading from the piston to the carriage, and any of these repairs probably wou'd have required a general overhauling of the mill under and upon which the connections between the boiler and the carriage were located. It is inconceivable that this work could have been done without attracting general attention; but whether the repairs might have been made in two or three days or not is wide of the mark.

Considering the imminent peril and danger of doing what the decedent did unless the repairs had been made, it was the height of recklessness to blindly assume without inquiry, and .in face of the improbability of their being done without his knowledge, that they had been made, within the short period of time mentioned, and on such mere assumption to have incurred the great risk which he did. 'Again counsel contend that the decedent, being a short man, could not conveniently reach over the upright guard plank from which the head sawcr always cleaned his side pf the rim of the pulley. _ That may he so, hut whether convenient or not he could have done it, and he could also have performed the act of cleaning while standing at the side of the plank, somewhat nearer to the revolving pulley.

There was no special urgency on the morning when the casualty in question happened which required any impetuous, hasty, or unusually prompt action by the decedent. He had ample time to do the work before _ 7 o’clock. A place from which he could have performed his task in perfect safety was provided by defendant, and he was not justified from any considerations of personal convenience or otherwise in ignoring-that provision and adopting the terribly dangerous method which he did. Morris v. Duluth, etc., Ry. Co., 47 C. C. A. 661; 108 Fed. 747; Gilbert v. Burlington, etc., Ry. Co., 63 C. C. A. 27, 128 Fed. 529.

After a careful consideration of all the evidence, and of all the propositions of law contended for by learned counsel for the plaintiff, we are constrained to say that contributory negligence was so apparent from all the evidence that the Circuit Court erred in not instructing the jury to find for the defendant. The judgment must be reversed, and the cause remanded, with instructions to grant a new trial; and it is so ordered.