Holloway v. H. W. Johns-Manville Co. ( 1908 )

Winsi.ow, O. J.

In addition to- its main contention that a verdict for the defendant should have been directed, the appellant in its brief assigns a number of detail errors; but as counsel upon the argument expressly waived consideration of these minor errors and insisted only upon the general claim of insufficiency of the evidence to sustain any verdict for the plaintiff, we are relieved from the consideration of' such minor contentions.

The argument is that the evidence shows no- negligence on the part of the appellant; that it provided a safe place to work, safe and suitable tools, and competent fellow-servants; and that the only negligence on the part of any one except the plaintiff himself was the negligence of the engineer, Quinlay, in assuring the plaintiff that the boiler had been tested and sending him into it while it was still hot. It is claimed that this was simply the negligence of a fellow-servant in carrying out one of the details of the common employment, the risk of which the plaintiff assumed.

This contention is met by the respondent first by the claim that the cooling of the boiler (being no part of the plaintiff’s duty) was in effect the preparation of a safe place for the plaintiff to work, like the preparation of a scaffold, and hence was a part of the master’s duty which could not be delegated. Cadden v. Am. S. B. Co. 88 Wis. 409, 60 N. W. 800. We do not find it necessary to decide whether the cooling of the boiler constituted the preparation of a safe placo to work or not. Conceding, but not deciding, that it did not, but that it was a mere detail of the general employment, which if negligently done would become merely the negligent act of a co-employee, there is an additional fact shown by the testimony of the plaintiff which we think is decisive in this- case.

As before stated, it was not a part of the plaintiff’s duty to blow off the boiler and prepare it for cleaning. This was the duty of the night force. The plaintiff came to the spot in the morning as he was directed to do, prepared to clean a boiler which had already been blown off. Mere outside inspection would not necessarily disclose the fact that it was not thoroughly cooled, although a test by throwing water into it would disclose the fact. The immediate superior who had. promised to see that the boiler was blown off at the proper time met him and ordered him to get to work in the boiler at once. In response to the plaintiff’s inquiry whether it was ready to go into, i. e. cool enougk, Ris superior assured Rim tRat it was and tRat Re Rad tested it. TRe plaintiff knew notRing to tRe contrary nor would visual inspection from tRe outside tell Rim anything to tRe contrary. Relying on tRis assurance Re entered tRe boiler and proceeded witR Ris work in tRe usual way and was grievously injured because a part of tRe boiler was still Rot.

Row it may be conceded for tRe sake of argument tRat Rad tRe only claim of negligence been tRat tRe boiler was not blown off at tRe proper time, this would Rave been simply negligence on the part of a co-employee of which the plaintiff assumed the risk, but tRe assurance of safety by tRe plaintiff’s superior introduces a new element into tRe question. It is entirely true tRat wRen an employee voluntarily enters upon a task attended witk dangers wRicR are obvious and apparent Re assumes tRe risk of sucR dangers notwitk-standing an assurance by tRe master or Ris agent tRat there is no danger. In suck case Re Ras no rigkt to rely on tRe assurance. He knows tRe danger as fully as Ris superior. Showalter v. Fairbanks, M. & Co. 88 Wis. 376, 60 N. W. 257. But, on tRe otker Rand, if tRe employee Ras no actual knowledge of tRe danger, and it is not obvious to tRe sense but only to be ascertained by careful examination or test, and tRe master or superintendent Raving superior knowledge of tRe situation, or assuming to Rave suck knowledge, assures tRe employee of safety, and tRe employee, relying on suck assurance, goes to work, Re will not be Reid as matter of law to Rave assumed tRe risk. 4 TRomp. Com. on Meg. § 4664; Denning v. Gould, 157 Mass. 563, 32 N. E. 862; Burnside v. Novelty, Mfg. Co. 121 Mich. 115, 79 N. W. 1108; Goggin v. D. M. Osborne & Co. 115 Cal. 437, 47 Pac. 248; Stomne v. Hanford P. Co. 108 Iowa, 137, 78 N. W. 841; 1 Bailey, Pers. Inj. § 898 et seq.; Hoffman v. Dickinson, 31 W. Va. 142, 6 S. E. 53.

In tliis case tRe engineer wRose orders tRe plaintiff was required to o-bey was in a position to Rave superior knowledge of the condition'of the boiler and claimed to have such knowledge. The danger was not obvious by inspection. The engineer ordered the plaintiff into the boíles, assuring him that he had tested it and that it was safe. Under these circumstances, it appearing that the plaintiff had no actual knowledge of its condition, the doctrine which prevents a recovery for injuries resulting from the negligence of a eo-employee has no application, and the question whether the plaintiff himself was guilty of contributory negligence in going into' the boiler without making his own test is properly one for the jury.

By the Gourt. — Judgment affirmed.

BashfoRD, J., took no part.