SOUTHWESTERN FUEL CO. v. DANIELSON, 57 F. 915

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. The ground on which it is contended that the court below should have instructed the jury to return a verdict for the defendant, is that the foremen who tore down the hents were the fellow servants of the plaintiff, and that their negligence was the cause of his injury. It may well he doubted whether these men were ever fellow servants of the plaintiff. That claim rests on the assumption that the plaintiff was engaged with them in the common employment of clearing Hie dock of coal and other materials.

No trestlework was being torn down when the plaintiff was employed. He was hired to load coal from the dock into cars by its side. Neither he nor his foreman knew that any of the trestlework was to be torn down until the timbers fell. The superintendent, by ’his order, added the work of tearing down these hents to the work 'in which the plaintiff was engaged, if it ever became part of that work at all, after the plaintiff was hired, and without his knowledge.

If,' however, we concede that the foremen who took down the bents were the fellow servants of the plaintiff in the general work of dealing the dock when he was employed, it is dear that he cannot be charged with their negligence in tearing down the trestlework, for several reasons: First. In removing these timbers that stood over the plaintiff’s head these men were delegated to perform the personal duty of the defendant, — the duty t;o use ordinary care to keep the place in which the servant was at work reasonably safe. In the performance of this duty they were the representatives of the company.

They were performing a duty which the master could not so delegate as to relieve it of liability, and their negligence in that respect was the negligence of the defendant. Railway Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. Rep. 65, and cases there cited; Railroad Co. v. Herbert, 116 U. S. 642, 648, 652, 6 Sup. Ct. Rep. 590. Second. The danger from the negligence of these foremen in this work was a new and extraordinary risk, known to and created by the defendant after it employed the plaintiff. The plaintiff was ignorant of it.

It was the defendant's duty to notify him of it, and it cannot charge him with the assumption of a risk which its own breach of duty kept him from having the opportunity to assume or escape from. A servant assumes the ordinary risks and dangers of the employment upon which he enters so far as they are known to him, and so far as they would have been known to one of Ms age, experience, and capacity by the use of ordinary care, including the ordinary risks from the negligence of fellow servants engaged in a common' employment in the service of a common master.

But he does not assume latent dangers known to the master, that are actually unknown to Mm, and that one of his capacity and experience would not have known by the use of ordinary care. It is the duty of the master to notify the servant of such dangers. Manufacturing Co. v. Erickson, 55 Fed. Rep. 943, and cases cited. The risk of injury from the tearing down of the trestlework above him was not one of the ordinary risks of shoveling coal or removing materials from the dock beneath it when the plaintiff entered upon- his employment.

Ho one was then tearing down the trestle-work; no one had been directed to tear it down; the bents above the plaintiff stood firmly qpon the dock, safely anchored to those held upright by the coal. He certainly assumed no greater risk than that of their falling by their own weight. He could not foresee that three hours later, by the master’s order, they would be tom down upon him, and he could not assume a risk that did not then exist, and that ordinary prudence could not anticipate. The defendant had placed him there at work. The place was reasonably safe.

He had a right to rely on the expectation that Ms master would use ordinary care to keep it reasonably safe, and would, notify him of any extraordinary risks he was likely to ’incur. After the plaintiff had worked ’in this place for three hours, Mr. Stringer, the defendant’s vice principal, created a new risk and danger unknown to the plaintiff. He directed the assistant foremen to take down the bents above the plaintiff. It was obvious to a man of the least sagacity that there was danger to the plaintiff working below in loosening and pulling down the timbers above him.

Here was a new danger from the negligence of these servants in the performance of this new work, to which the plaintiff had not before been subject in the service he entered upon. This new and extraordinary risk the plaintiff did not then assume, because he was not aware of .it. To him it was a latent danger. He was entitled to notice of it, and an opporutnity to exercise-his option to leave the employment or to assume this risk, before he could be .charged with its assumption.

If one is employed to remove stone from a quarry where no powder is used, he does not assume tile risk of the negligence of a fellow servant who is subsequently directed by the master, without his knowledge, to drill a hole in the quarry, charge it with powder, and fire a blast to loosen the stone. Where such extraordinary risks are secretly added by the master after the employment is entered upon, he must be, and ought to be, held responsible for the result, unless the servant is informed, or by the use of ordinary care might have learned, of the dangers. Railroad Co. v. Charless, 2 C. C. A. 380, 51 Fed.

Rep. 562; Railway Co. v. La Valley, 36 Ohio St. 221; Smith v. Car Works, (Mich.) 27 N. W. Rep. 662; Withcofsky v. Wier, 32 Fed. Rep. 301. Third. The negligence of the superintendent was the negligence of the defendant. We think all reasonable men must agree that the superintendent was guilty of negligence in ordering this trestle-work torn down without notifying the plaintiff, his foreman, or any of the men working under it, that this was to be done.

If the foremen were fellow servants of the plaintiff, and their negligence contributed to the injury, that did not relieve the defendant of its liability for the primary negligence of the superintendent. The master is liable for an injury to a servant which is caused by his own negligence and the concurrent negligence of a fellow servant Railway Co. v. Callaghan, 56 Fed. Rep. 988; Railway Co. v. Cummings, 106 U. S. 700, 702, 1 Sup. Ct. Rep. 493; Harriman v. Railway Co., 45 Ohio St. 11, 32, 12 N. E. Rep. 451; Lane v. Atlantic Works, 111 Mass. 136; Griffin v. Railroad Co., 148 Mass. 143, 145, 19 N. E.

Rep. 166; Cayzer v. Taylor, 10 Gray, 274; Elmer v. Locke, 135 Mass. 575; Booth v. Railroad Co., 73 N. Y. 38; Cone v. Railroad Co., 81 N. Y. 206. In accordance with these views, the court below charged the jury, in substance, that if the plaintiff had no information that the bents above him were to be taken down until they fell upon him, and if the superintendent of the defendant ordered them to be taken down, but gave the plaintiff no notice thereof, and 'if the plaintiff’s injury was caused by the failure to give such notice, the superintendent was guilty of negligence for which the defendant was liable.

Two objections are made to this charge: First. That the method "of lowering the bents was left to the foremen who were directed to do the work; that the superintendent had a right to expect that they would discharge their duty carefully; that they were fellow servants of the plaintiff, and the defendant was not liable for their negligence. This is but a repetition of the argument presented in support of the position that the jury should have been instructed to return a verdict for the defendant, and it has already been disposed of. .

The risk of the negligence of these foremen while they were tearing down the timbers over the plaintiff was a new and extraordinary risk, which the defendant had no right to subject the plaintiff to without notice. There was no evidence that the plaintiff could have learned of this new danger by the exercise of ordinary care, or that he was guilty of any contributory negligence. He was working in the place where his master had stationed him. He was shoveling coal into an iron wheelbarrow, and its rattling caused great noise.

He worked bending forward over his shovel, and was continually urged by his foreman to hasten his work. Under these circumstances the charge properly stated the law applicable to the facts in evidence. Second. The second objection is that it was a question for the jury, and not for the court, whether or not the action of this superintendent constituted negligence. It is insisted that the evidence was uncontradicted to the effect that the facts were as stated in the instruction, and that the legal effect of this charge was to instruct the jury to return a verdict for the plaintiff.

It is not always a question for the jury to determine whether or not a given state of facts constitutes negligence on the part of the defendant. Where the evidence as to material facts is contradictory, or where the facts are admitted or undisputed, and are such that reasonable men can fairly draw opposite conclusions from them, the question of negligence is for the jury; but where there is no dispute about the facts, and they are such that but one conclusion can fairly be drawn from them by reasonable men, it is the duty of the court to declare that conclusion to the jury.

If the evidence is of such a conclusive character that the court,, in the exercise of a' sound judicial discretion, would be bound to set aside a verdict returned in opposition to it, it is its duty to direct a verdict for the plaintiff or the defendant, as may be proper. Railway Co. v. Sullivan, 3 C. C. A. 506, 53 Fed. Rep. 219, 222; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. Rep. 569; Insurance Co. v. Doster, 106 U. S. 30, 32, 1 Sup. Ct. Rep. 18; Griggs v. Houston, 104 U. S. 553; Randall v. Railroad Co., 109 U. S. 478, 482, S Sup. Ct. Rep. 322; Commissioners v. Beal, 113 U. S. 227, 241, 5 Sup. Ct.

Rep. 433; Schofield v. Railway Co., 114 U. S. 615, 618, 5 Sup. Ct. Rep. 1125; ¡North Pennsylvania Railroad Co. v. Commercial Nat. Bank, 123 U. S. 727, 733, 8 Sup. Ct. Rep. 266. The very question at issue here was presented to and considered by this court in Railway Co. v. Sullivan, supra.

In that case Judge Caldwell, who tried the action in the circuit court, had charged the jury as follows: “If you find from the evidence that the defendant’s engineer, at the time and place mentioned, and within the corporate limits of the city of Minneapolis, blew a loud blast or blasts of the locomotive whistle, and that at the time the act was done there was no imminent or immediate danger to life or property, and the whistle was not sounded as a warning of such danger, then the blowing of the whistle was a negligent act.” The undisputed facts in that case were those stated in the instruction, so that its legal effect was, as in the case at bar, to direct a verdict for the plaintiff. .

This court held that the instruction correctly stated the. law, that reasonable men could fairly draw but one conclusion from the facts there stated, and that it was the province and duty of the court to so inform the jury. For ihe reasons already stated we are of the same opinion regarding the instruction objected to in this case, and we think it was the province of the court to give this instruction for the reasons stated in the opinion in the Sullivan Case. The judgment below is affirmed, with costs.