Wurtenberger v. Metropolitan Street-railway Co.
William Wurtenberger v. The Metropolitan Street-railway Company
Syllabus
Summary
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Opinion of the Court
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The opinion of the court was delivered by Smith, J. :
It will be noticed from the testimony of plaintiff below, set out in the statement, that he and his fellow workmen asserted that the arrangement of the hydraulic jack rendered it unsafe when it was exerting force against the iron beam. They hesitated to go on with the work, but were directed by the foreman to proceed. The foreman knew the forcing capacity of the jack, and the workmen were ignorant of it. It cannot be held that knowledge of plaintiff below of the probable injurious result to him and the risk incurred from an obedience to the foreman’s command was obvious and apparent. (Railway Co. v. Bancord, 66 Kan. 81 , 71 Pac. 253 .) He was a common workman, without experience in handling such appliances. His expressed fears that more pressure would cause the iron bar to fly out were overcome by the assurance of the foreman of its safety. The two were not on an equal footing. A reliance upon the superior *647 knowledge of the master, under the circumstances, was to be expected. The direction by the foreman to the men to go ahead and work was the best evidence to them then obtainable that the jack was safely adjusted. As to the apprehended danger, the master and servant did not agree. In Harder & Hafer Coal Min. Co. v. Schmidt, 104 Fed. 282, 285 , 43 C. C. A. 532, 535 , it was said: • .
“Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where the nature of the menace is so uncertain as to cause discussion between the employees and the employer, with the result that the employer dissuades 'the employee of his apprehension ; and especially so where the particular employee injured is without any knowledge of its existence.”
In the circumstances of the present case, there was a difference of opinion between Wurtenberger and the foreman with respect to the danger attendant on a further use of the jack, after the employee had doubted its safety. In view of this disputed question of safety, .it was proper that the jury should determine whether the workman was negligent. (Miller v. Union Pacific Ry., 12 Fed. [C. C.] 600.) It must be remembered that the hydraulic jack was a mechanical device of great dynamic energy, which could not be readily known to a common laborer working with it for the first time. Its capacity and power were known to the foreman of the defendant below.
In Seeds v. Bridge Co., ante, page 522, 75 Pac. 480 , a workman was told by a foreman to remain in a dan•gerous place and adjust a rope used for hoisting. He was injured’. The court said :
.“We must further remember that he had just been •hurried to the work, had been .violently chided for too *648 great haste in getting away from this place of danger, had been told to remain there until sure that the fastening was secure, and had been informed by the foreman that he would tell the plaintiff when to get away. All this would have a strong tendency to make the plaintiff less observant of the dangerous surroundings, less critical as to unsafe conditions, and less competent to judge of danger to which he was exposing .himself, growing out of these surroundings and conditions.” (See, also, Stephens v. The Hannibal & St. J. Ry. Co., 96 Mo. 207 , 9 S. W. 589 , 9 Am. St. Rep. 336 .)
Plaintiff below testified that he believed what the foreman told him respecting the safety of the jack. The rule is that if the master orders the servant into a situation of danger, and in obeying the command he is injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. The degree of prudence exercised by the plaintiff below was a matter for the consideration of the jury. The demurrer to the evidence ought to have been overruled.
The judgment of the court below will be reversed and a new trial granted.
Johnston, C. J., Cunningham, Greene, Burch,. Mason, and Ateinson, JJ., concurring.
Dissent
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Smith, J.
(dissenting) : The .testimony of the injured person, in my judgment, shows that he had knowledge of the danger which menaced him, and that he assumed the risk. It is only by holding that plaintiff below did not mean what he said on cross-examination that he can be excused from remaining in a place of imminent peril until he was hurt. What he expected happened. He knew from the working *649 of the jack that it was exerting great force.- This was apparent to any one, though not an expert. He testified :
“Ans. Well, I did n’t have to examine the beam ; I just see that beam, and then I say, like the other man, ‘that ain’t safe.’
“Q,ues. Yes, you knew it was not safe. That is the principal thing that you knew about it ? A. That is the first thing I know; yes, sir.
“Q,. That was all Jhat was said by Mr. DeGroff, was it? A. Well, he said ‘that beam stands most anything, and the hydraulic jack got a forcing ton and we ain’t got forcing for fifty ton ; go ahead and work.’
“Q,. He said ‘go ahead and work’, and you Went right back and went to putting on the lever on your press again ? A. I don’t have to go back. I was standing on the place when I said so, and the other men commenced to work, and I followed them to work. then.
“Q,. Now, you did go to work with your levers again, putting pressure on ? A. Yes, sir.
“Q,. How long did you work after that before this thing flew out as you thought it would ? A. Just one forcing on the lever, and that was the last; after we said it ain’t safe we give one more motion.
“Q,. Just one more push of the lever and the thing flew out? A. Yes, sir.
“Q. Just as it appeared to you it would do if you put on any more pressure ? A. Yes, sir.
“ Q. It did just what you thought it would do, did it? A. • Well, it flew out.
“Q,. Well, it flew out just as you thought it would do? A. Yes, sir.’’
Plaintiff below cannot be excused for his exposure to danger by saying that he relied on the statement of the foreman that the appliance' was safe when his testimony shows that he was convinced to the contrary, and that he knew that another turn of the lever would cause the iron wedge to fly out. . It is said that *650 the knowledge of the foreman was superior to that of Wurtenberger. .The latter,however, did not so testify. His knowledge of the dangers of the situation, if we' believe his statements, was as ample as that of the foreman. I think the demurrer to the evidence was properly sustained. (Clark v. Mo. Pac. Rly. Co., 48 Kan. 654 , 29 Pac. 1138 ; Walker v. Scott, 67 id. 814, 64 Pac. 615 , and cases cited; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 id. 129, 12 Pac. 582 ; A. T. & S. F. Rld. Co. v. Schroeder, 47 id. 315, 27 Pac. 965 ; S. K. Rly. Co. v. Moore, 49 id. 616, 31 Pac. 138 .)
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