Anderson v. Smith

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The case comes here upon a single assignment of error: “That the trial court erred in withdrawing the case from the jury and directing a verdict for the defendant.”

The liability of an employer to his employees does not arise from the danger of the occupation in which the employees are called upon to engage, but from accident occurring through the negligence of the employer. It is insisted by counsel for plaintiff that the defendant was negligent in not supplying block and tackle to be used in lowering the door in question. There is no evidence whatever to show that such implements are usually employed for this purpose, or that the method adopted is not the customary one. The burden is on the plaintiff to establish negligence on the part of the defendant. Such negligence cannot be presumed, and may only be inferred from facts showing undisclosed knowledge of a condition which exposes the employee to a peculiar danger unknown to him, and which he could not, with the exercise of ordinary prudence and intelligence, have observed. The employee, when he engages his services to his employer, impliedly agrees to assume all the risks ordinarily incident to such employment. If the work demands peculiar skill in the use of the machinery or instrumentalities employed to carry on the work, he assumes the risks incident thereto. He impliedly assumes this risk in his contract of employment.

The rule was well stated in Wood v. Heiges, 83 Md. 257, 34 Atl. 872, as follows: “If a servant has knowledge of the circumstances under which the employer carries on his business, and chooses to accept employment, or continue in it, he assumes such risks incident to the discharge of his duties as are open or obvious. In such cases it is not a question whether the place prepared for him to occupy, and which he assents to accept, might, with reasonable care, have been made more safe. Iiis assent dispenses with the performance on the part of the master of the duty to make it so.”

Neither do we deem it to be the duty of the master to warn his servant of apparent danger. The duty being performed by plaintiff’s intestate at the time of the accident in question was not such as called for either skill or experience. The door to be lowered was in full view. The method employed was the most ancient known. It required a simple survey of the structure and an estimate óf the amount of exertion it would take to lower it. Intestate’s fellow employees in the trial below appear to have had no difficulty in placing what would seem to be a very exaggerated estimate on the dimensions and the weight of the doors and frame. No reason is apparent why this case should be taken out of the rule of assumed risk. Plaintiff’s intestate was a mature man of ordinary intelligence, presumed to be capable of doing the very ordinary and unskilled labor he was engaged in at the time of the accident. As was said in Kohn v. McNulta, 147 U. S. 238, 37 L. ed. 150, 13 Sup. Ct. Rep. 298, where a servant was injured in coupling freight cars: “The intervener was no boy, placed by the employer in a position of undisclosed danger, but a mature man, doing the ordinary work which he had engaged to do, and whose risks in this respect were obvious to anyone. Under those circumstances he assumed the risk of such an accident as this, and no negligence can be imputed to the employer.”

To hold the master liable in a case like the one before us would be to make him an insurer against accident of every nature befalling the servant while engaged in the work assigned him. This is not the law. The accident was the result of the risk assumed by plaintiff’s intestate in the ordinary course of his employment, from a source with which he must be deemed to have been competent, by the exercise of ordinary prudence and intelligence, to judge of the danger involved. The court below committed no error in withdrawing the case from the consideration of the jury, and preventing what might have resulted in a sympathetic verdict. The judgment is affirmed with costs, and it is so ordered. A„ianed.

An application by the appellant for a writ of error to the Supreme Court of the United States was allowed June 1, 1910.