Negligence, Employers' liability: Assumption of risk. In an action by a workman injured in the hold of a coal barge by the swinging back of a steam shovel, it appeared, that after the bucket was lowered the plaintiff and the foreman would take hold of it at opposite corners and push it to the point from which the coal was to be taken, then both run back to escape the bucket as it swung back. When they began the coal was level, but as the work went on a bank of coal formed beyond the place where the shovel was working and the plaintiff testified that the coal continued to get steeper and more shifty and he noticed that it was harder to run back to avoid the bucket as it swung back. Whereupon he said to the foreman "Why not take a few shovelfuls out forward and put it on a level and make more room. There is not sufficient room here." The foreman said "I will, in a minute" and the plaintiff answered "All right." He continued to work and, on the third shovelful after, slipped down on the steep coal and was struck by the bucket and injured. Held, that the reply of the foreman "I will, in a minute" was not an assurance that the place was safe, but conveyed the information that before the coal would be levelled its surface would become still more steep by the operation of the shovel, and that the plaintiff's reply "All right" taken with the fact of his continuing to work meant that he continued to take the risk such as it might be; and that as matter of law judgment must be given for the defendant.
BARKER, J.
There can be no question that the general risk of such an accident as that by which the plaintiff was hurt was an ordinary risk of his employment, perfectly well known to him in fact and therefore assumed by him. A verdict should have been ordered for the defendant upon this ground unless what occurred between the plaintiff and the foreman just before the accident made it a question for the jury whether the plaintiff continued to work without fully appreciating the risk because of some implied assurance on the part of the foreman that the risk was not so great as to justify the plaintiff in stopping work until the conditions which made it especially dangerous should be changed.
In our opinion such an inference could not have been drawn fairly from the evidence. The plaintiff had had many years' experience in unloading coal from vessels by the means used when the accident occurred. He had helped push the shovel upon a number of previous occasions and knew as well as any one the elements of danger in his work, and that the exact factors contributing to that danger would vary with each occasion when he should help to push forward the shovel and endeavor to avoid being struck by it when it swung back. He had not only noticed that the coal up the inclined surface of which he had to run to avoid the shovel when it swung back continued to get steeper and "more shifty" and that it was harder for him to run back, but he must have known also that the taking out of each shovelful of coal tended to make the incline more steep and harder for him to run up. He said to the foreman, "Why not . . . take a few shovelfuls out forward and put it on a level and make more room? There is not sufficient room here."
The reply of the foreman "I will, in a minute" was not an assurance that in his opinion the place was safe, or that its condition should be made safer at once, but it plainly implied and should have been sufficient to convey to the plaintiff the information, that before the coal would be levelled in the way suggested, its surface would be made still more steep by the continued operation of the shovel. The natural meaning of the plaintiff's rejoinder "All right" taken with his continuing the work, was that he continued to take the risk such as it might be. In the opinion of a majority of the court the case should have been taken from the jury, and in accordance with the terms of the report there must be
Judgment for the defendant.