UTAH CONSOL. MINING CO. v. PAXTON, 150 F. 114

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. The accident which is the subject of this action occurrred in the state of Utah. Under the statutes of that state a servant, who is authorized by his master to direct another servant of the same master in the discharge of his duty as an employé, is a vice principal of the master, and not a fellow servant of the employé. Rev. St. Utah 1898, §§ 1342, 1343; Southern Pac. Co. v. Schoer, 114 Fed. 466, 470, 52 C. C. A. 268, 272, 57 L. R. A. 707.

Thaxton was a vice principal of the mining company, and the latter is responsible for his acts and negligence within the limits of his authority. Minneapolis v. Lundin, 58 Fed. 525, 527, 7 C. C. A. 344, 346. The place in which the plaintiff was at work was dangerous, and he knew it. The general rule is that a servant assumes the ordinary risks and dangers of his employment which are known to him, or which would be obvious to a person of ordinary prudence and ability in his situation.

There is an exception to this rule that, when a servant makes complaint' to his master of a dangerous defect in his place of work or in the appliances furnished him, and the employer promises to remedy it, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from it is so imminent that a person of ordinary prudence would not continue in the employment after the discovery of the dangerous condition. St. Louis Cordage Co. v. Miller, 61 C. C. A. 477, 480, 126 Fed. 495, 498.

If the plaintiff below had given notice of the dangerous condition of his place of work to the mining company, and a promise to remove it had been made by that corporation, there could have been no doubt that the case would have fallen clearly within this exception. Counsel for the corporation insist, however, that Thaxton, the furnaceman, had no authority to stop the car, and that the notice to him and his promise were futile, because in receiving the one and making the other he was not acting within the scope of his agency. Weeks v. Scharer, 64 C. C. A. 11, 14, 129 Fed. 333, 336.

The superintendent of the smelter testified that furnacemen in the position of Thaxton had no authority to stop the car, but that, if they would say to' the carman, “You had better stop that car because there is a man on the track,” the carman would stop, the carmen were under a different foreman from the furnacemen, and that Thaxton should have notified the foreman of the presence of the plaintiff and the helper upon the track.

Before the accident the plaintiff had seen furnacemen report to carmen that servants were on the track at work upon the hoppers of the furnaces, and he had observed that after such reports the cars stopped before,they came to the workmen until the latter completed their work. It was the duty of Thaxton to remove the obstruction from the hopper of the furnace and to keep the latter in operation. The servants under his direction refused to work to this end, unless steps were taken to prevent the cars from running over them while they were at work in the smoke and darkness upon the track.

They all knew that a notice by a furnaceman to the carman that men were working upon the ‘track to clear the hopper had caused the car to stop in the past until the work was done. They inferred, and the deduction was natural and reasonable, that the same cause would again produce the same effect. The furnaceman, in order to induce the servants to proceed with the work, promised to notify the carman to stop the car, and that they were at work upon the track, and the workmen, in reliance upon this agreement, returned to their task, and the plaintiff was injured.

The promise of the furnaceman was necessary to accomplish the work of the master intrusted to him. He made it. He was engaged in the service of his employer to secure the performance of that work, and it had that effect. There is therefore no escape from the conclusion that it was within both the apparent and the actual scope of the agency of the furnaceman, and there was no error in the refusal of the court to direct a verdict for the defendant. Amato v. Northern Pacific R. Co. (C. C.) 46 Fed. 661; Bradley v. New York Central R. Co., 62 N. Y. 99, 104. The judgment below is affirmed.