Opinion
May 2, 1906.
J. Edward Singleton and W.L. Kiley, for the appellant
J.A. Kellogg and J.H. Barker, for the respondent.
The defendant owed the plaintiff a reasonably safe place in which to work, free from hidden, unexpected dangers known to the master but unknown to the servant, and by ordering this connection made with the pressure on and without the use of the usual bag, a fair question was presented whether the defendant was not negligent in discharging the duty it owed to the plaintiff. The defendant knew that the manner in which it was doing this work was unusual and was dangerous. The serious question is whether the plaintiff knew that the pressure was on, appreciated the danger and assumed the risk. His former work had been in making connections in the open air, with small pipes, which connections usually are, and safely can be made, without turning the pressure off. From his knowledge of the business and his familiarity with the situation, did he know, or should he have known from the manner in which the work was being done, that the pressure was still on? He swears the burlap bags were used, as he supposed, to retain in the pipe the gas which was there and which would naturally escape even though the pressure was turned off. Is that true? If he had reason to believe that the pressure had been turned off, was he negligent in staying at the work after the discovery that such was not the fact? Here the evidence is not entirely clear. Some of it tends to show that some time elapsed between the time the plug was pulled out and the explosion. Others put the explosion at about the time the plug was pulled out. If some time elapsed after the plug was pulled out, would a reasonably prudent man throw down his bag and run, knowing that there was a light over his head which might cause an explosion, or would he deem it his duty to remain and try and hold the gas in the pipe with the burlap bag, hoping to prevent an explosion? The nonsuit cannot be sustained upon the theory that Moran, while acting as a fellow-servant, caused the explosion by producing a spark with his chisel. It is not clear that the explosion did not occur from the gas jet above, and the fact that no spark was seen and that the workmen heard an explosion before they saw a light, was proper to be considered as to whether a spark or the gaslight caused the explosion. Besides, if the defendant was negligent in putting the plaintiff in this place, surrounded by dangers unknown and unexpected by him, it cannot shield itself by showing that the act of the fellow-servant brought about the injury which the hidden dangers of the place made probable. It seems that these questions and the inferences to be drawn from all the circumstances were peculiarly for the consideration of the jury and not for the court. The Employers' Liability Act (Laws of 1902, chap. 600, § 3) required the question of assumption of risk to be submitted to the jury. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.