Bunker Hill & S. Mining & Concentrating Co. v. Kettleson

MORROW, Circuit Judge (after stating the facts). The evidence was not sufficient to sustain the verdict in favor of the plaintiff, and the jury should have been so instructed. Plaintiff had himself placed the rope in the chute on the day before the accident for his own safety, and he testified that the chute was not safe without it. He nevertheless ascended the chute on the-morning of the accident without it, and claims that he did not notice the absence of the rope. Clearly, these two situations are inconsistent. If the chute was unsafe without the rope for persons ascending or descending, plaintiff must have observed the absence of the rope when he climbed up the chute in going to his work, and assumed the risk. Again, after ascending the chute on the morning of the accident, he had a talk with Bishop, and claims to have told him to look out for the ladder and the rope. Why did he refer to the rope, unless he knew that it had been removed? He knew there was no ladder there, and he must have known that the rope was gone. His testimony indicates that he had this knowledge, but, whatever view may be taken of his testimony, the actual situation was open to his observation, and he must be held to have assumed the risk when he undertook to descend without the rope. He was a. miner of 27 years’ experience, and was familiar with the place where he was at work; and whether the chute was nearly perpendicular, as he claims, or had an angle of 41 deg., as determined' by defendant’s measurements, he knew or must have known that the rope he had placed in the chute had been removed; and the fact that he requested Bishop to look out for it seems to be conclusive as to plaintiff’s knowledge of the situation. It is a well-established rule that where a servant enters upon or continues in a dangerous employment with either knowledge of the danger, or full opportunity to observe the conditions making the employment dangerous, he assumes the risk of such employment. Kansas City Ry. Co. v. Billingslea (C. C. A.) 116 Fed. 335 ; Terry v. Schmidt (C. C. A.) 116 Fed. 627 . Is there anything in the testimony tending to relieve plaintiff from this position? There is certainly nothing, unless it be assumed that he knew of the absence of the rope, and that just before the accident he requested Bishop to look out for it, and that Bishop promised he would do so. But with respect to this aspect of the evidence, it is *533 sufficient to say that it does not follow that the defendant was bound by this promise, if made, since the evidence does not show that Bishop had any authority to make such a promise; and the allegation in defendant’s answer that Bishop suggested to plaintiff the use of the rope as a means of safety cannot be construed as an admission that Bishop was acting for the defendant in that behalf. If, on the other hand, it be assumed that plaintiff was not informed of the removal of the rope, the same result follows. The evidence does not show that Bishop had authority to bind the defendant to the maintenance of the rope as plaintiff had placed it, or to restore it if removed. In the absence of such evidence, the conclusion is unavoidable that, in procuring and using the rope in the manner and under the circumstances described by plaintiff, Bishop and he were acting in the relation of fellow servants; and, as a result, the failure of Bishop to restore the rope before the accident, as claimed by plaintiff, cannot be held to be the negligence of the defendant. From what has been stated, it is apparent that the plaintiff was not entitled to recover, upon the most favorable consideration of the testimony on his behalf. The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to grant a new trial. GILBERT and ROSS, Circuit Judges, concur in the judgment on the ground that it appeared from the evidence, without conflict, that the rope that the defendant in error himself placed in the chute for protection — and, having which, he willingly undertook the work in which he was engaged when injured — -was subsequently, and while he was so engaged, removed by a fellow servant, for which act, whether with or without the consent of the defendant in error, the master was not responsible.