A supervisor of county roads in the District of Columbia was
repairing them with a force of laborers, one of whom was at work on
a bank of gravel. There was evidence tending to show that he
discovered that the bank was in an unsafe condition, and asked the
supervisor for a man to watch it, and received assurance that such
assistance would be given, and that it was not given. The laborer
continued to work there for half a day, when the bank fell upon,
and seriously injured him. He brought suit against the District to
recover damages for the injury. On the trial, it was not alleged
nor proved that the supervisor was incompetent. The court, after
instructing the jury that the negligence of the supervisor was one
of the risks which the laborer took upon himself, and that the
District was not liable unless he was incompetent and such
incompetency was known or ought to have been known to it, added
further that if the jury found that the laborer notified the
supervisor of the dangerous condition of the bank, he would be
relieved from the imputation of negligence during the time
necessary to provide a man to watch it.
Held:
Page 117 U. S. 622
(1) That the latter instruction was inconsistent with the
former, and calculated to mislead the jury.
(2) That it was the duty of the laborer, having knowledge of the
dangerous condition of the bank, to exercise diligence and care in
protecting himself from harm, without regard to any assurances
which he might have received from the supervisor that the
assistance he had asked for would be given.
Hough v. Railway Company, 100 U.
S. 213, explained.
Whether the District of Columbia is in every case exempt from
liability for the negligence of its supervisor of roads resulting
in personal injury to those who labor under his direction on public
work is not decided.
Whether a supervisor of public roads and a laborer employed
under him on the roads are fellow servants within the meaning of
the general rule that the common employer is not responsible to one
employee for injuries caused by the negligence of a co-employee in
the same branch of service is not decided.
The declaration in this case was as follows:
"The plaintiff sues the defendant, a corporation duly organized
in pursuance of law, for money due and payable to the plaintiff by
the defendant, for that the plaintiff was employed as a laborer by
the defendant to do certain work for the defendant, to-wit, digging
gravel from a gravel bank and loading certain carts with the same;
that the defendant well knew that in doing said work, it was
necessary to provide a sufficient number of men to enable those
engaged as laborers on said work to observe the bank from which
they were digging to prevent the untimely caving in thereof and the
falling of gravel on them, and the said defendant also well knew
that it was customary and necessary to have a person to watch said
bank, and to give timely warning to those laboring under the same
to enable them to escape from the said bank when a portion or the
whole of the same was about to fall, yet the said defendant
neglected, and although requested by the plaintiff on the 12th day
of June, 1878, in the District of Columbia, did not provide a
sufficient number of laborers to enable this plaintiff, who was
then and there employed by the defendant and laboring in its
service in digging gravel from a high gravel bank and loading the
said gravel into carts, to observe the said bank, and also,
although the said custom and necessity was well known to the
defendant, through the negligence
Page 117 U. S. 623
and default of the defendant, no person at the said time and
place was provided to watch the said bank and to give timely notice
to the plaintiff in order that he might escape when a portion of
said bank was about to fall. By reason of the premises, a large
portion of said gravel bank at the time and place aforesaid fell
upon this plaintiff, and thereby the plaintiff was thrown to the
ground, his leg broken, his skull fractured, and he was permanently
injured and crippled, and permanently rendered unfit for work, and
was greatly bruised and injured, and incurred expense for medical
attendance, to-wit, the sum of $500, and was and is deprived of
divers gains and profits, and was and is hindered from attending to
his necessary and lawful business, to the great damage of the
plaintiff in the sum of twenty thousand dollars (20,000), and
therefore he brings his suit."
Plea: general issue. Judgment below for plaintiff, which was
sustained
in the General Term. Defendant below sued out this writ of
error. The rulings of the court below and other facts which make
the case are stated in the opinion of the Court.
Page 117 U. S. 624
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This is a writ of error to reverse a judgment for the sum of
$3,000, which a jury found as damages for personal injuries
sustained by McElligott, the defendant in error, who was plaintiff
below, through the alleged negligence of the District of Columbia
in its conduct of certain public work on which at the time of such
injuries, he was engaged as a laborer in its employment.
It appears that one Smallwood, the supervisor of county roads,
undertook the repair of a public highway by the use of material
obtained from a gravel bank. McElligott and one Meacham constituted
a part of the force of laborers employed for that work. The special
duty assigned to Meacham was to "prepare gravel" to be hauled away,
while McElligott was to fill the carts in which the gravel was
transported to the place where it was to be used by the supervisor.
They reached the bank between 8 and 9 o'clock on the morning of
June 12, 1878, observing, upon their arrival, that it had been
undermined
Page 117 U. S. 625
at one side for two or three feet, and a chamber cut into it --
a condition which, to some extent, increased the chances of the
bank's falling.
The plaintiff insists that there was evidence tending to show
the following facts:
That while Meacham and McElligott were at work, Smallwood was
giving his attention to the repairing of the public road with the
material brought from the gravel bank; that between 9 and 10
o'clock in the morning, McElligott sent word to him to provide two
additional men for the work at that place, one to watch the bank
and the other to aid in filling the carts; that within a very short
time, an answer came to the effect that the request would be
complied with; the plaintiff stopped work at noon for dinner, but
before doing so, sent a second message, which Smallwood received,
to send more men, one to watch the bank and one to assist in
loading the carts; that he resumed work about 1 o'clock, and about
half an hour after that time -- no men having been sent by
Smallwood -- the bank fell while he was at work five or six feet
from it; that the falling bank caught him, despite his efforts to
escape, burying him for a time beneath the gravel and inflicting
upon him injuries of a serious and permanent character; that, to
use the language of the witness Meacham, "it is not safe to stand
under a bank that has been undermined," and that although
McElligott recognized from the outset that it was dangerous for him
to do his work without someone's being present whose special duty
was to give timely notice of the first indications of the bank's
falling, he continued to work in reliance upon Smallwood's promise
to send someone to watch the bank. The District claims that there
was evidence tending to show that Smallwood did not receive a
message from McElligott to send men to watch the bank or to aid in
loading the carts; that the former was not in the habit of
providing men to watch a gravel bank except when it was intended to
have a "fall;" that there was no such intention on the day
McElligott was injured, and that neither the latter nor Meacham had
any instructions to make a "fall."
The point upon which the evidence was conflicting was as
Page 117 U. S. 626
to whether Smallwood in fact received notice that a man was
needed to watch the bank while he and Meacham were at work.
McElligott states that his first message was sent by Tracey, one of
the drivers of the carts, and his second by Anderson, another
driver. In his examination in chief by the plaintiff, Tracey
testified that McElligott told him "to tell Smallwood to send two
men out there to help load the carts, and that the other might have
the opportunity to watch the bank in case of danger," and that
he
"delivered the message to Smallwood at Mr. Brown's, between nine
and ten o'clock, and he said that he would send men, but he did not
do it until after McElligott was hurt."
He testified that he told McElligott what Smallwood said; also
that
"it is necessary to have a man to watch the bank when people are
digging under a gravel bank. The bank was undermined that morning
when we went there. It is not safe to work at a bank like that
without having it watched."
But upon cross-examination, the same witness, being asked to
state what reason was given by McElligott for wanting men to watch
the bank, said:
"He wanted men to load the carts.
He did not say anything to
me about watching the bank. He simply sent a message to
Smallwood to send two men to help load these carts, and that was
all.
He did not at any time say he wanted a man to watch the
bank. I don't recollect his sending a message by anyone to
Smallwood that he wanted that he should send a man to watch the
bank.
I don't recollect that I heard anything said about a man
to watch the bank before this accident. I told Mr. Smallwood
that Mr. McElligott said, 'send a couple of men to help load the
carts.' I found Mr. Smallwood near Brown's. I delivered the message
to Mr. Mahoney. Smallwood said that he would send a man or
two."
Upon reexamination, the same witness said:
"I delivered the message to Smallwood -- what McElligott told
me.
I do not recollect whether what McElligott told me to
tell Smallwood was to send men to watch the bank
or load
the carts. McElligott told me to tell Smallwood to send a couple of
men to help load the carts -- to help them out. I delivered
whatever message McElligott told me to tell Smallwood, no matter
what it was."
Anderson, by whom the plaintiff claims to have sent the
Page 117 U. S. 627
second message, testifies that he did inform Smallwood in the
morning of the former's wish that men be sent "to help load the
carts and watch the bank," and that Smallwood said "All right." He
did not, however, notify McElligott of what Smallwood said, because
he did not himself return to the gravel bank. There was no proof
that plaintiff was informed, prior to his being injured, of what it
is claimed passed between Smallwood and Anderson. The only evidence
tending to show that the plaintiff continued to work at the bank,
in reliance upon Smallwood's alleged promise or assurance that he
would send some one to watch it, was in the testimony of
Tracey.
At the instance of the District, the court gave numerous
instructions to the jury. They embodied, among others, these
propositions:
That it was implied in the contract between the plaintiff and
the District that the former took the risk of the dangers which
ordinarily attend or are incident to the business in which he
voluntarily engaged for compensation, among which was the
carelessness of those in the same work or employment, with whose
habits, conduct, and capacity he had, in the course of his duties,
an opportunity to become acquainted, and against whose neglect or
incompetency he could take such precautions as his inclination or
judgment suggested; that, although Smallwood was supervisor of the
highways of the District, and as such employed and controlled the
services of the plaintiff, the latter could not recover on account
of any neglect or misconduct of the former in and about the work in
which they were both engaged, unless it was shown that Smallwood
was incompetent and unfit for the discharge of the duties of his
position, of which the District had, or ought to have had,
knowledge; that in contemplation of law, the plaintiff took upon
himself the risk arising from the negligence of his fellow workmen,
including Smallwood, and that if the plaintiff, believing that the
gravel bed was in such condition as to make it dangerous for him to
continue work there without some one being appointed to watch the
bank while he was so engaged, and deliberately exposed himself to
the accident by which he was injured, he was guilty of contributory
negligence, and could not recover in this action.
Page 117 U. S. 628
To the granting of these instructions the plaintiff made no
objection. The parties went to the jury agreeing in effect that the
principles which those instructions announced should control the
determination of their respective rights. We have therefore no
occasion to consider the general question whether the District of
Columbia is, in every case, exempt from liability for the
negligence of its supervisor resulting in personal injury to those
who labor under his direction on public work, nor the narrower
question whether Smallwood and McElligott were fellow servants,
within the meaning of the general rule that the common employer is
not responsible to one employee for injuries caused by the
negligence of a co-employee in the same branch of service. No such
questions arise upon the present hearing. We have only to deal with
the assignments of error relating to material matters not covered
by the instructions which were given at the request of the
defendant without objection upon the part of the plaintiff. And
those matters are to be found in the charge of the court to the
jury. After expressing its approval of the principles announced in
those instructions and referring to the precaution taken by the
plaintiff to inform Smallwood of the necessity of providing some
one to watch the bank while he and Meacham were engaged in the
special work assigned to them, the court said to the jury:
"Now it is said that if Mr. Smallwood still neglected, after
such notice, it would still be a neglect of a fellow servant, for
which no servant could ever recover any damage. But I have, for the
purposes of this trial, instructed you that if the fact of the
dangerous condition of that bank was communicated to Smallwood, and
a request made of him to send a man there to watch it, and he gave
assurance in reply that a man would be sent there for that purpose,
the plaintiff here might labor without any imputation of any
negligence on his part for such a length of time as within which
that promise might be fulfilled -- not to continue there and labor
any longer than that, because it would be as much negligence after
a reasonable period had expired after receiving this assurance as
if no assurance had been given. The law requires that he shall not
needlessly expose himself to any danger, to any peril whatever.
"
Page 117 U. S. 629
"And if he has taken this precaution, the decision [
Hough v.
Railway Co., 100 U. S. 213] is to the effect
that it would not be negligence for him to remain a sufficient
length of time to give opportunity to have a man sent there."
"Now this is about all that is necessary to say upon this
point."
"The proposition, then, is if the bank was in a dangerous
condition, and the plaintiff sent a notice to that effect to
Smallwood, and Mr. Smallwood gave, in reply, this assurance that a
man would be sent there, then, until a sufficient length of time
had expired within which that promise might be fulfilled, the
plaintiff might remain there at his work, and if any injury
happened to him by the falling of the bank during that time, the
District might then be imputed with this negligence. If he remained
a longer time than within which the promise might be fulfilled, or
if he gave no such notice at all, or no such notice was given to
Smallwood, then the plaintiff is without any remedy, however
serious that injury may be."
"I do not think that it makes any difference here whether
Smallwood had any man he could send there or not."
"Now the main question therefore is, and the one difficulty
probably which the jury will have in determining anything in this
case will be, as to this matter of notice. On that subject, Mr.
Smallwood has been examined, as also Mr. Tracey and Mr.
Anderson."
"Now the plaintiff names Tracey and Anderson as the persons by
whom he sent this message, first by Tracey and then by
Anderson."
"From Anderson he received no response, because Anderson did not
return. He had therefore no assurance in reply to that message
whatever, and I think upon the whole that he had no reason to
expect any relief unless he received assurance such as that given
in the case in the supreme court. Beyond that I do not think that I
ought to go, and I repeat that without he received this assurance
of assistance, he took the risk of the falling of the bank upon
himself."
To so much of the charge as declared that if plaintiff notified
Smallwood of the dangerous condition of the bank, he
Page 117 U. S. 630
would be relieved from the imputation of negligence during such
time as was sufficient for Smallwood to provide a man to watch the
bank, and to so much of it as declared that the alleged notice by
the plaintiff to Smallwood and the latter's reply thereto took the
case out of the rule laid down in the instructions previously
given, the District excepted in proper form.
We are of opinion that upon the theory of the case declared in
the special instructions given, the charge was erroneous. As the
court, at the request of the District, instructed the jury that the
negligence of Smallwood was one of the risks which the plaintiff
took upon himself, and that it was not liable in this action unless
he was incompetent for his position, and such incompetency was
known or ought to have been known to the District; as it was
neither alleged nor proved that he was incompetent, and as the only
neglect complained of or to which the evidence was directed was his
failure to provide a man to watch the bank after notice of the
necessity therefor, it is difficult to perceive how it became
important for the jury to inquire whether McElligott continued at
work longer than was reasonably sufficient for Smallwood to appoint
some one to the duty of watching the bank while the plaintiff and
his co-employee Meacham were at work. The time during which the
plaintiff continued at work after giving the alleged notice and
after receiving an assurance that his request would be complied
with has no relation whatever to the only contingency in which the
District, according to the special instructions, was liable --
viz., its negligence in employing as supervisor of roads
one who was unfit for the place. If the principles embodied in
those instructions are sound -- upon which point we are not now
required to express an opinion -- the court would have been
justified in directing a verdict for the District. The charge was
inconsistent with the instructions previously given, and was
calculated to mislead the jury, for it submitted to them a question
which those instructions had, in effect, if not in terms, declared
to be immaterial in the case.
We are also of opinion that the charge was erroneous in its
statement of the grounds upon which the jury should determine
Page 117 U. S. 631
the particular point submitted to them. It involved a
misapprehension of the decision in
Hough v. Railway Co.,
100 U. S. 224,
where the Court had occasion to consider, among other questions,
that of contributory negligence by the party who sues his employer
for injuries resulting from the negligence of another employee in
the same general service. That was an action against a railroad
company by the representatives of a locomotive engineer. The
negligence there complained of, and to which, as was claimed, was
to be solely attributed the death of the intestate, was that of the
company's officers in assigning to the intestate, for his use, an
engine which by proper diligence on the part of such officers might
have been ascertained to be defective and unsafe. One of the
defects there complained of was in the cow-catcher or pilot of the
engine; the other was that the whistle was insecurely fastened to
the boiler. By reason of the defect in the cow-catcher, the engine
was thrown from the track, whereby the whistle fastened to the
boiler was displaced, and from the opening thus made hot water and
steam issued, fatally scalding the deceased. It was admitted that
the engineer had knowledge of the defect in the cow-catcher, but it
was not claimed that he was aware of the insufficient fastening of
the whistle, or that the defect, if any, in that respect was of
such a character that he should have become advised of it while
using the engine on the road. It was proved that he had given
notice to the proper officers of the company of the defect in the
cow-catcher, and they promised that it should be remedied. But the
court of original jurisdiction in effect held that knowledge on the
part of the engineer of the defect in the cow-catcher was itself
sufficient to defeat the action, without reference to the
assurances given that the defect in it should be remedied. In
considering the question whether his use of the engine with that
knowledge was such negligence as prevented a recovery, so far as
that defect was the efficient cause of death, the Court referred to
the general rule upon the subject of contributory negligence that
where a master or his representative has expressly promised to
repair a defect, the servant can recover for an injury caused
thereby within such a period of time after the promise as it
Page 117 U. S. 632
would be reasonable to allow for its performance, or for an
injury suffered within any period which would not preclude a
rational expectation that the promise might be kept. But to avoid
misapprehension arising from the broad terms in which the general
rule was frequently expressed, and that its application in that
particular case might be clearly understood, the Court said
"We may add that it was for the jury to say whether the defect
in the cow-catcher or pilot was such that none but a reckless
engineer, utterly careless of his safety, could have used the
engine without it being removed. If, under all the circumstances
and in view of the promises to remedy the defect, the engineer was
not wanting in due care in continuing to use the engine, then the
company will not be excused for the omission to supply proper
machinery upon the ground of contributory negligence. That the
engineer knew of the alleged defect was not, under the
circumstances and as matter of law, absolutely conclusive of want
of due care on his part."
That knowledge, it was held, was a fact to be considered by the
jury in connection with other facts in determining whether the
engineer exercised that caution which all the circumstances
required.
These principles were not applied in the trial of the case now
before us, for in effect the jury were instructed that in
determining the question of contributory negligence, they need only
inquire whether plaintiff continued at his work longer than was
reasonably sufficient to enable Smallwood to provide some one to
watch the bank. If that question was solved in favor of the
plaintiff, then they were at liberty under the charge to find that
he was not guilty of contributory negligence, although they may
have believed from the evidence that no man of ordinary prudence
would have entered upon and continued in the work for and time,
however brief, without some one being appointed to watch the bank;
in other words, that if the plaintiff in fact relied upon the
alleged promise of Smallwood, he was not chargeable with
contributory negligence although the jury may have believed that,
under all the circumstances, he so acted as to show himself utterly
careless of his safety. But such is not a sound exposition of the
principles which regulate the
Page 117 U. S. 633
rights and obligations of employer and employee. Assuming that
the District might be responsible under some circumstances for
injuries resulting from the negligence of its supervisor, it
certainly would not be liable if the danger which the plaintiff
apprehended from the beginning was so imminent or manifest as to
prevent a reasonably prudent man from risking it upon a promise or
assurance by the proper authority that the cause from which the
peril arose would be removed. The plaintiff had had experience in
the kind of business in which he was engaged at the time of his
injury. He recognized from the beginning the peril to which he was
exposed while working at the gravel bank. There was no express
undertaking upon the part of the District by its supervisor that it
would save him harmless as to any injury he might suffer prior to
the designation of some one to watch the bank, and it was not
implied in the contract between him and the District that he might
needlessly or rashly expose himself to danger. On the contrary, if
liability might come upon the District for the negligence of its
officers controlling his services, he was under an obligation to
exercise due care in protecting himself from personal harm while
discharging duties out of which such liability might arise. If he
failed to exercise such care, if he exposed himself to dangers that
were so threatening or obvious as likely to cause injury at any
moment, he would, notwithstanding any promises or assurances of the
District supervisor of the character alleged, be guilty of such
contributory negligence as would defeat his claim for injuries so
received.
Whether, therefore, we look at the case upon the theory embodied
in the instructions given at the request of the District or as
depending upon the issue as to contributory negligence upon the
part of the plaintiff, the judgment must be reversed, and a new
trial awarded.
Reversed.