Opinion
No. 30211.
November 21, 1932.
1. MASTER AND SERVANT.
Under federal act employees assume all ordinary risks incident to their employment (Federal Employers' Liability Act [45 U.S.C.A., sections 51-59]).
2. MASTER AND SERVANT.
Under federal act employee performing work in manner known to be dangerous, assumes risk incident thereto (Federal Employers' Liability Act [45 U.S.C.A., sections 51-59]).
3. MASTER AND SERVANT.
Section hand who knowing danger hurriedly tamped slag under railroad ties on orders of alleged foreman under fear of losing position, assumed risk and could not recover for injury to eye struck by slag (Federal Employers' Liability Act [45 U.S.C.A., sections 51-59]).
APPEAL from circuit court of Hancock county. HON.W.A. WHITE, Judge.
Smith Johnson, of Mobile, Alabama, for appellant.
This suit is brought under the Federal Employers' Liability Act, and it was shown that at the time the plaintiff was injured he was engaged in interstate commerce. Where the Federal law applies, as it does in this case, all state laws upon the subject are superseded.
Lindgren v. United States, 281 U.S. 38; Chesapeake Ohio Railway v. Stapleton, 279 U.S. 587; New York Central v. Winfield, 244 U.S. 147; Erie R.R. Co. v. Winfield, 244 U.S. 170; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501.
Not only does the Federal law apply to the exclusion of the state law, but what constitutes assumption of risk is determined by the common law as interpreted and applied in the Federal courts.
Southern Railway Co. v. Gray, 241 U.S. 333, 339; Chesapeake Ohio Railway Co. v. Kuhn, 52 Sup. Ct. Rep. 45, 76 L.Ed. 118; Seaboard Air Line Ry. v. Horton, 233 U.S. 492; Central Vermont Railway Co. v. White, 238 U.S. 507; Great Northern Railway Co. v. Wiles, 240 U.S. 444.
The plaintiff's own testimony makes out a clear case of assumption of risk, and when this is done, it is the duty of the court to give the peremptory instruction requested by the defendant, and not to submit the case to the jury.
Delaware, etc., R.R. Co. v. Koske, 279 U.S. 7, 12; Butler v. Frazee, 211 U.S. 459, 467; Chesapeake Ohio Railway Co. v. Kuhn, 52 Sup. Ct. Rep. 45, 76 L.Ed. 118.
In cases like this, where damages are claimed under the Federal Employer's Liability Act (45 U.S.C.A. sections 51-59), defense of the assumption of the risk is permissible, and where the undisputed evidence clearly shows such assumption the trial judge should direct a verdict for the defendant. Moreover, in proceedings under that act, wherever brought, the rights and obligations of the parties depend upon it and applicable principles of common law as interpreted and applied in the Federal courts.
Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 508; Chesapeake Ohio Railway Co. v. Kuhn, 52 S.Ct. 45, 76 L.Ed. 118; Pryor v. Williams, 254 U.S. 43; New York Central Railroad Company v. Winfield, 244 U.S. 147; Delaware, etc. R.R. v. Koske, 279 U.S. 7; Toledo, St. Louis Western R.R. Company v. Allen, 276 U.S. 165; Seaboard Air Line Railway Co. v. Horton, 233 U.S. 492.
A servant assumes the ordinary risks and dangers his employment and the extraordinary risks and dangers which he knows and appreciates. Neither the order of a vice-principal to the servant to work in a dangerous place, or in a dangerous way, nor his assurance of the servant's safety, nor the servant's fear of losing his job, will release the servant from his assumption of the risk and danger where they were readily observable and were known and appreciated by him, unless the vice-principal makes a promise to remove them as an inducement for the servant's continuance in the service.
Union Pacific Ry. Co. v. Maroni, 246 Fed. 916, 924; Washington Terminal Co. v. Sampson, 289 Fed. 577, 581; Hallstein v. Pennsylvania Ry. Co., 30 Fed. 594; Hannett v. Victor-American Fuel Co., 236 Fed. 526; Chicago B. Q. Ry. Co. v. Shalstrom, 195 Fed. 725; Anderson v. Winston, 31 Fed. 528; Southern Ry. Co. v. Logan, 138 Fed. 725; Chicago, Great Western Ry. Co. v. Crotty, 141 Fed. 913; Reed v. Stockmeyer, 74 Fed. 186.
Emile Gex, of Bay St. Louis, for appellant.
An employee of a railroad doing interstate commerce business, continuing employment and performing usual duties with knowledge of danger by reason of having to do dangerous work with material furnished him, even though he has made a complaint, assumes the risk of injury.
Mobile Ohio Railroad Co. v. Clay, 156 Miss. 463, 125 So. 819, 51 S.Ct. 24.
But it is said again that the "Superior Officer" ordered the deceased into the place of danger, and he was bound to obey, and therefore appellants should recover. But this rule is always qualified by the exception that there is no liability if the danger is such that no prudent man would have encountered it. In view of what we have stated, the declaration shows that deceased knew that the risk was so obviously dangerous that no recovery could be had on this ground.
Truly v. North Lumber Company, 36 So. 4, 83 Miss. 430.
The fact that the order came from the superior officer, if the danger was apparent to the employee, would not give a right of action to the employee.
Chesapeake Ohio Railway Co. v. Kuhn, 52 S.Ct. 45, 76 L.Ed. 118.
Neither the order of a vice-principal to the servant to work in a dangerous place, or in a dangerous way, nor his assurance of the defendant's safety, nor the servant's fear of losing his job, will release the servant from his assumption of the risk and danger where they were readily observable and were known and appreciated by him.
Union Pacific Ry. Co. v. Marone, 246 Fed. 916; Hannett v. Victor-American Fuel Co., 236 Fed. 526.
The assumption of risk rests upon the maxim "Volanti non fit injuria" and upon the contract of employment. It rests upon the principle that no legal injury can be inflicted upon one who willingly assumes the known or obvious risk of it, and hence it includes the risk of known or obvious defects and dangers which the master or the foreman directs the servant to incur during the employment, for the latter is as free to decline to obey such an order as he is to decline, to take or to continue in the employment, and where he knows and appreciates the defect and danger as well as the master or foreman, he becomes subject to the maxim, upon the will no legal injury can be inflicted.
Chicago B. Q. Ry. Co. v. Shalstrom, 195 Fed. 725; Southern Railroad Co. v. Logan, 138 Fed. 725.
It is well settled that where a servant knows and appreciates the danger of the act which he undertakes he does not any the less assume the risk of injury, or become chargeable with contributory negligence, as the case may be, because he undertakes it under the direction of the master's representative.
Chicago, Great Western Railroad Co. v. Grotty, 141 Fed. 913; Derrickson v. Commissioners of Town of Harrington, 138 A. 645; Chicago M. St. P. P. Ry. Co. v. Busby, 41 Fed. 617.
By no means, however, is an employee under all circumstances and at all hazards, bound to obey the commands or accept the assurance of the employer. The peril may be so great that no prudent person would chance it. Neither the employer nor his representative has a right to give such an order or assurance; and the employer has no right to act pursuant thereto. And if the employee receive an injury knowing as well as the employer the danger to which he exposes himself, he will not be permitted to recover.
18 R.C.L. 658, section 151; Lowe Mfg. Company v. Payne, 167 Ala. 245, 52 So. 447, 30 L.R.A. (N.S.) 436; Leary v. Boston, etc., Railroad Company, 139 Mass. 580, 2 N.E. 115, 52 Am. Rep. 733; 18 R.C.L. Law, page 703, section 187.
The general rule is that, where the servant accepts or continues in employment, knowing or having equal means of knowledge with the master of the defects and dangers inherent in the employment, he assumes the risk of injury therefrom.
39 C.J. 769, section 970.
Gex Gex, of Bay St. Louis, for appellee.
Another element that may effect an employee's appreciation of the perils of his employment, and consequently his right of recovery for injuries resulting therefrom, is a command by the employer or his representative to do a particular act, or an assurance that the act may be performed without danger. In any case — the employee may not set up his judgment against that of his recognized superiors; on the contrary he may rely upon their advice, assurances and commands, notwithstanding any misgivings of his own.
18 R.C.L. 150.
A servant does not assume the risk of injury from the negligence of the master while the latter is personally supervising and directing the work.
39 C.J. 700.
Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable not to the method, but to negligence in pursuing it.
Chesapeake Ohio Railway Co. v. Proffitt, 241 U.S. 462, 60 L.Ed. 1102; Sundry Creek Co. v. Gray, 238 Fed. 325; New Deemer Co. v. Wells, 296 Fed. 688.
By virtue of his contract the servant agrees to obey the orders of the master, and a refusal to do so would involve his dismissal.
Coal Coke Ry. Co. v. Deal, 231 Fed. 604.
So, where a servant is apprehensive that the place in which he is required to work is dangerous and unsafe, but relies upon the assurance of the foreman that it is safe and is directed by him to proceed, and the servant is injured without any negligence upon his own part, the master is responsible.
Buckhard v. A. Leschen Sons Rope Co., 217 Mo. 466, 117 S.W. 35.
The mere fact that in an employee's judgment an act required by the employer is unsafe does not, as a matter of law, render him guilty of negligence in performing it, if the employer assures him that there is no danger.
McKee v. Tourtellotte, 167 Mass. 67, 44 N.E. 1071, 48 L.R.A. 542.
An inexperienced lineman does not necessarily assume the risk of a pole falling due to the lack of guying, although he was apprehensive of the danger if the pole was not guyed, where he had complained of the dange, to the foreman, and, with an assurance of safety, was ordered to proceed with his work.
Lord v. Wakefield, 185 Mass. 214, 70 N.E. 123; 245 U.S. 681.
The plaintiff who was allowed to recover was injured while tamping rocks under a tie and in the employ of an interstate carrier, by a rock that flew in his eye due to a defect in the tool, to-wit: a pick, with which he had been furnished to do the work.
Swain v. Chicago, R.I. P. Ry. Co., 170 N.W. 296, 25 U.S. 577, 64 L.Ed. 725.
Where the master commands the servant to do an act involving an extraordinary danger, the servant is justified in obeying the command, and does not assume the risk; the risk in such cases being taken by the master.
Schantz v. Northern Pac. Ry. Co., 180 N.W. 517.
Where employee continues to work with appliance knowing dangers incident to its use under peremptory order given by employer, employer is estopped from asserting defense of assumption of risk and is said to have waived defense.
Maslek v. Pennsylvania Ry. Co., 160 N.E. 523.
Where an order given called for quick action upon the part of the men, and did not afford them an opportunity to consider whether they could do so safely or not, the doctrine of assumption of risk has no application.
Topore v. Boston, etc., Ry. Co., 100 A. 153, 78 N.H. 311.
In entering upon the work of a boiler maker's helper the plaintiff assumed the ordinary risks incident to the employment, but he did not assume the risk of injury arising from remaining in a tank for an unusual length of time, under the direction of his superior, if in so doing he acted with ordinary care under the circumstances.
Martinson v. Chicago, etc., Ry. Co., 102 Neb. 238, 166 N.W. 624.
Where under the attending facts and circumstances a master's command was negligent, and he had actual or constructive knowledge that compliance therewith would be attended with unusual and unnecessary peril, the danger incurred in obeying it was not assumed by virtue of the employment.
Central of Georgia Ry. Co. v. Lindsey, 110 S.E. 636, 28 Ga. App. 198.
Plaintiff was acting under the orders of his superior, who had a right to control his services, and the doctrine of assumption of risk does not apply in his case.
Railroad Company v. Guin, 109 Miss. 187.
Argued orally by Emilie J. Gex, for the appellant, and Gex Gex, for appellee.
Charley Russell brought suit against the appellant, the Louisville N.R. Co., under the Federal Employers' Liability Act (45 U.S.C.A., sections 51-59), for an injury to his eye received while engaged as a section hand upon a section of the railroad company. The defendant, railroad company, pleaded the general issue, and gave notice thereunder of evidence to show that the plaintiff, Russell, assumed the risk of his employment, and that, by reason of the assumption of risk, there was no liability for his said injury.
In testifying, Charley Russell stated, in effect, that he had been employed in railroad service for many years, and was familiar with the work in which he was engaged; that, at the time of the injury, he was tamping slag and gravel under the railroad ties, and that it was safe to strike this slag and gravel slowly and dangerous to strike it rapidly and with force; and that, while so working, the boss or assistant section foreman, in company with two others, came up to where he was working, tamping slag and gravel as aforesaid, and the foreman said, "Drive it under there, God damn, you are not driving it, raise it up," and he (Russell) commenced to hurry, and a piece of slag or gravel struck him in the eye inflicting the injury complained of. He further testified that he was thoroughly familiar with the way the work should be done, and that it was unsafe to do the work hurriedly, but that he sped up and did it hurriedly because it meant that, if he did not do so, he would lose his position with the railroad company. In effect, he testified that he knew as much about the risk of the employment, and the danger of doing the work improperly, as any one else, and that he knew it as well, or better, than his foreman.
There is dispute as to whether the person he testified was his boss, or assistant section foreman, was, in fact, engaged in such capacity at that time; but, in view of the case we have, it will be unnecessary to set forth these various contentions.
The defendant, the railroad company, at the conclusion of the evidence, requested a peremptory instruction, and also two instructions to the general effect that, if the jury were reasonably satisfied from the evidence that the plaintiff knew and appreciated the danger incident to obeying the order which he claimed he received from Roger Bordages, the alleged foreman, the jury should find for the defendant; and to the effect that, if the plaintiff knew and fully appreciated the danger incident to doing the work in the manner he was doing it at the time he was injured, the jury should find for the defendant.
The rights of the parties, of course, are controlled by the Federal Employers' Liability Act (45 U.S.C.A., sections 51-59) as construed by the Federal Supreme Court.
Under the decisions of the Federal Supreme Court, as we understand them, the employees assume all the ordinary risks incident to their employment, and, if, after assuming such risk, any employee does the work in a manner that he knows to be dangerous, he assumes the risk incident to doing that particular piece of work in that manner, and the company is not liable for an injury inflicted.
In Chesapeake Ohio Ry. Co. v. Wm. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157, October, 1931, it was held that "an experienced railroad section hand who knew that chips would fly in cutting a steel rail with a cold chisel, and participated in such an operation without asking for goggles or objecting to the method of operation, as a matter of law assumed the risk of injury to his eye by a flying chip." In the course of the opinion in this case, the court said: "In cases like this, where damages are claimed under the Federal Employers' Liability Act (45 U.S.C.A., sections 51-59), defense of the assumption of the risk is permissible and where the undisputed evidence clearly shows such assumption the trial judge should direct a verdict for the defendant. Moreover, in proceedings under that act, wherever brought, the rights and obligations of the parties depend upon it and applicable principles of common law as interpreted and applied in the Federal courts. Seaboard Air Line R. v. Horton, 233 U.S. 492, 508, 34 S.Ct. 635, 58 L.Ed. 1062, 1071, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475 [8 N.C.C.A. 834]; C O.R. Co. v. DeAtley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016; Boldt v. Penn. R. Co., 245 U.S. 441, 445, 38 S.Ct. 139, 62 L.Ed. 385, 389 [19 N.C.C.A. 461]; N.O. N.E.R.R. Co. v. Harris, 247 U.S. 367, 371, 38 S.Ct. 535, 62 L.Ed. 1167; Chicago, M. St. P.R. Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041."
We held, in this court, in the case of Mobile Ohio R.R. Co. v. Clay, 156 Miss. 463, 125 So. 819, to the same effect, following the Federal adjudications upon the subject.
Under these cases and the authorities cited therein, the defendant, railroad company, upon the record before us, was entitled to a directed verdict.
It is true that it is a hard case, where a laborer must choose between unemployment and risk of injury; but under the decisions of the United States Supreme Court, as we understand them, where an employee knows of the danger, and there is no promise to remedy such danger upon which he relies, and he continues in the employment, he assumes the risk by doing so, and, consequently, he is not entitled to recover for an injury under the circumstances.
Under the decisions above quoted, it was the clear duty of the court, when the situation developed that the knowledge of the employee was undisputed, and that he continued in the work voluntarily, to have granted a peremptory instruction for the defendant.
It follows from these views that the judgment of the court below must be reversed and judgment rendered here for the appellant.
Reversed and rendered.