Washington Construction Co. v. Regan ( 1907 )

Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the judgment is erroneous, that appellant was entirely cognizant of whatever risk there was of the trench caving in, that he was familiar with all the conditions, having dug a number of such holes on the street, and that he assumed the risk.

It is, we think, clear from the undisputed evidence that appellee assumed the risk.of working in this hole. He was sent there, according to his own statement, with directions to take a helper and lay the pipe. If he thought there was danger of the side of the ditch caving in upon him, he was at liberty to take such precautions to protect himself as he thought necessary. Planking which could be used for the purpose was at hand. The possibility of the sides of a trench or hole caving in was obviously an ordinary risk, incident to the business of digging such holes, in which work appellee was regularly engaged, with which he'was entirely familiar and for which he was employed. It was apparently left to him to determine for himself whether the conditions were such as to make it necessary to “shore” the sides. It is true an employee does not assume all risks which may be incident to his employment, but he assumes such usual and ordinary risks incident to his employment as the master must rely on him and has a right to expect him to detect and guard against which cannot be obviated by reasonable precautions by the master and where the means of protection are within the employee’s own control. The law does not require the master to take better care of the employee than the latter is willing to take of himself. Appellee was, as we have said, familiar with the manner of digging and laying pipe in ditches or trenches of this kind. He knew it was not usually necessary to “shore” them with plank. It is not a case of shoring negligently done by the employer, nor of failure to furnish appellee a safe place in which to work. In Simmons v. Chicago & Tomah R. R. Co., 110 Ill., 340-347, it is said an employee “must himself use due care and caution to avoid injury. If he has full knowledge of all the perils of a particular service he may decline to engage in it or require that it shall first be made safe; but if he does thus enter it he assumes the risk and must bear the consequences”; and further that “if a servant knowing the hazards of his employment as the business is conducted is injured while engaged therein he cannot maintain an action against the master for the injury merely on the ground- that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.” In the present case the fact that appellee may have had nothing to do with the digging of the particular hole in question, that it had been dug before he went into it by some of his fellow em- - ployees, does not change the fact that he was entirely familiar with the manner in which the hole was dug, with the character of the soil in the street, with whatever hazards there were as the business was conducted.

In the view we are obliged to take it is not necessary to consider at length objections urged to the giving and refusal of instructions, further than to say that the first instruction given in behalf of plaintiff is, we think, manifestly erroneous. It assumes the existence of “unusual or extraordinary risks and hazards arising out of the negligence of the” defendant.

The judgment of the Superior Court will be reversed with a finding of facts.

Reversed.