Utah Consol. Mining Co. v. Paxton

Citations

• 150 F. 114
• 80 C.C.A. 68
• 1906 U.S. App. LEXIS 4532

Syllabus

<p>1. Master and Servant — Injury to Servant — Negligence—Facts—Decision.</p> <p>Under the statute of a state which provides that a servant who is authorized by his master to direct another of the latter’s servants in the , discharge of his duty is a vice principal, a furnaceman, in' response to a complaint of danger from a car, promised a grater, whom he had authority to direct in his work, that he would notify a carman, employed by the same master under a- different foreman, to stop his car before it came to the furnace, and that the grater was at work upon the track ■' clearing the- hopper of the furnace just below it. Such a notice to the carman had frequently caused the latter to stop his car' before, coming • : 'to the Workmen similarly situated, and .to hold-it until-they, finished their work. In reliance upon tlie promise, tlie grater went to work upon tlie track and was Injured by a car which ran upon it.</p> <p>Held, the promise of the furnaceman was within the scope of his agency, and it relieved tlie grater from tlie assumption of the risk.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 34, Master and Servant, §§ 638-040.</p> <p>Assumption of risk incident to employment, see Chesapeake & O. It-Co. v. Hennessey, 38 O. C. A. 314.]</p> <p>2. Same — Assumption op Risk — Exception on Promise to Remove Defect.</p> <p>There is an exception to tlie rule that a servant assumes the ordinary risks and dangers of his employment, to the effect that, where a servant makes complaint to his master of a dangerous defect in his place of work or in the appliances furnished him, and the master promises to remedy it, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from it is so imminent that a person of ordinary prudence would not continue in the employment after the discovery of tlie condition.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig.