
    McGOWAN v. THE LA PLATA MINING AND SMELTING CO.
    
      (U. S. Circuit Court, Colorado District,
    
    
      January 11, 1882
    
    
      —Ruling on Motion for New Trial.)
    
    Master and Servant—Negligence—Duty of Master to Inform Servant of Danger Incident to Occupation—Presumed Knowledge of Servant as to Scientific Facts. The master is bound to inform his servant of facts within his knowledge affecting the safety of the servant in the service to be performed, when the latter is ignorant of the facts.
    The law will presume, within limits, that every one has knowledge ol certain destructive forces in nature, and accepts employment with reference to them—as that fire will burn, water drown, the law of gravitation, etc. But many scientific facts tending to endanger life are not within the intelligence of ordinary men. A laborer employed to remove hot slag from a furnace in proximity to water will not be presumed to know the dangers which may result from the explosion sure to be caused by the contact of the hot slag and the water. It is not so much a question whether the party injured has knowledge of all the facts in his situation, as whether he is aware of the dangers that threaten him.
    2. Damages—Amount of. The verdict will not be set aside for “excessive damages” when it is not apparent that the jury acted from prejudice or passion, or that they passed the limits of fair discretion on the evidence.
    
      Tort for injuries received in defendant’s service. In May last defendant was engaged in smelting ores at Leadville, and plaintiff was employed to assist at one of its furnaces as “inside helper.” There were several furnaces in the works, the one at which plaintiff served being known as No. 4. This furnace had two taps for drawing off slag, differing in that respect from the others, which had but one. The slag, in a molten condition, was drawn into pots, which were supported between wheels, with a tongue attached, for moving the pot and contents without the building. After it was filled with slag the tap was closed and the pot was drawn but about eighteen inches and allowed to stand there until the slag cooled sufficiently to form a crust, when it was moved to the dump outside the building. To support the wheels under the taps two iron plates were placed parallel with each other. They were three or four feet in length. The slag pot was kept in position under the tap by the spout, which extended over the rim, and when drawn out there was a foot-post under the tongue to support it. For convenience in moving the pot, this foot-post was made shorter than was required to keep the pot level, and when drawn out from the tap, as before explained, it was necessary to support the foot-post on a block of some kind in order to keep the pot level. At some of defendant’s furnaces iron plates were used for that purpose. At one there were bricks laid in mortar. At the furnace No. 4, where plaintiff served, there was one brick or perhaps two bricks; whether there was one brick or two bricks laid one on top of the other was left in doubt; the plaintiff testified that there was one brick.
    Just under the tap at all the furnaces there was a small sump usually filled with water, which received the droppings of slag from the tap. Water supplied through hose with some force was used at all the furnaces after drawing off slag and bullion, apparently to cool the furnace and the surroundings. As described by the witnesses the use of water was “ to wet down the breast of the furnace.” In front of the furnace No. 4 there was a slight depression in the floor of the furnace, extending from the tap somewhat further than the iron plates before mentioned, perhaps four or five feet from the furnace in all. At the time plaintiff entered the service and thereafter until the injury, this depression was filled with water, so that there was something like a pool of water there, deeper at some places than at others, as the floor was uneven, but not very deep in any place; perhaps one or two inches of water at some places, and very little at other places. The water came from “wetting down the breast” too freely or from leaks in the hose. In either case it was within the control of the “ inside helper.”
    The furnace was in charge of a furnace-man, who attended to the business of smelting. The “inside helper” was his assistant to tap the furnace, draw the slag, close the tap, draw the slag-pot to the door, “wet down the breast,” and the like duties. There was evidence tending to prove that he had charge of the tools about the furnace, and that there was a barrel at hand to catch the flow of water from the leaky hose if it should be placed in the barrel. The inside helper could take any steps necessary to prevent the water from gathering in front -of the furnace by preventing it from flowing there, or by cutting a drain to carry it off
    On the whole evidence, however, it was plain that the furnace was in charge of the furnace-man and the helper was subject to his orders. In control of all the furnaces, there was a superintendent, who gave close attention to all that was done, and there was a general manager of the concern, whose function was not clearly shown.
    Plaintiff, having no experience in such matters, was employed by the superintendent to work as “inside helper,” and was shown how to draw off the slag and move the slag-pots, and to perform other services about the furnace. But nothing was said to him about the water in front of the furnace, or the danger incident to its presence in that place.
    In the third shift, which was probably the third day of his service, plaintiff drew out from the tap a pot of slag, and attempted to place the foot post on the brick, or bricks, before mentioned. By some mischance, this was not done, and the foot post came to the floor, tilting the pot forward, and spilling the hot slag into the water. This caused an explosion of great force, by which plaintiff was injured; his clothes were set on fire, and his person—his face in particular—badly burned. The greatest hurt was to the eyes, which, plaintiff testified, were not yet well. He was blind for sixteen days, and confined to the hospital about two months; resumed work as a teamster about the middle of August.
    In the original complaint, the negligence relied on was the failure to provide a slab or block for the foot post of the slag pot to rest on. By amendment, the further ground was added, that defendant allowed water to collect in front of the furnace, “the collection of which in said place rendered it extremely dangerous in removing and taking away the molten slag from said furnace. That plaintiff was inexperienced in such matters, and was not aware of such danger; and that said defendant did not, in any manner, inform plaintiff of such danger, or warn him against the same, although said defendant well knew of such danger.”
    The Court advised the jury to find, whether the defendant was negligent in not warning the plaintiff of the danger of spilling hot slag in the water in front of the furnace. If it was defendant’s duty to notify plaintiff of the consequences that might be expected to proceed from allowing the slag to fall into the water, and he was not notified, the defendant would be liable in damages for any injury happening to plaintiff, in the manner detailed by witnesses. If the water in front of the furnace was dangerous to the workmen, by reason of the liability to spill the slag into it, was it defendant’s duty to give warning of such danger? If plaintiff had been injured by spilling slag on his foot, or in such manner that it would flow against his person, he could not recover, because that was a danger which he must foresee and guard against at his peril. Defendant could be held only on the theory, that there was danger from allowing the hot slag to fall into the water, of which defendant was informed, and'plaintiff was not, and that defendant owed to plaintiff a duty to inform him of the danger, and that duty had not been performed.
    As to the measure of damages, plaintiff could have compensation only for his illness; the pain and suffering proceeding from the injuries. He could have nothing for the loss of time, as he had not shown its value. And nothing for medical and other attendance, as he had not shown any expenditure in that behalf.
    Defendant excepted to the charge and to the refusal of the Court to give certain instructions, submitted.
    The jury returned a verdict for plaintiff, assessing damages at #3,25°-
    
      Defendant filed this motion for new trial, alleging error in the charge, and that the damages are excessive.
   Hallett, J.:

That a master is bound to inform his servant of facts within his knowledge affecting the safety of the servant in the service to be performed, when the latter is ignorant of such facts, seems to be conceded.

A lot owner employed a carpenter to build for him, but did not inform the carpenter that his title to the lot was contested. The carpenter, pursuing his labor on the lot without suspicion of danger, was attacked by the parties claiming adversely to the employer, and severely injured. On this the employer was held liable in damages for his omission to notify his servant of the danger impending. Baxter v. Roberts, 44 Cal., 187.

A miner employed to sink a shaft was not informed of a crack or opening in the side of the shaft, of which his employer had knowledge. The shaft caved in and injured the miner, and his employer was held liable for his negligence in not giving notice of the crack in the shaft. Strahlendorf v. Rosenthal, 30 Wis. 675.

But it is contended that the rule cannot be applicable to the case at bar, as it relates only to facts withheld from the servant, and not. to instruction in the principles of natural philosophy. The water in front of the furnace, and the act of overturning the hot slag, may have come of the negligence of the plaintiff. Indeed, the evidence points to that conclusion. And the explosion which followed was the natural result, of which plaintiff should have been informed ; or, at all events, defendant was under no duty to inform him.

This is the argument against the verdict. And certainly, within limits, the law will assume that everyone has knowledge of destructive forces in the world and the powers of the earth and air. Of such is the knowledge that comes to every man of sound mind in the ordinary course of his life: that fire will burn; that water .will drown; that one may fall off a precipice, and the like. Recently in this Court it was said of one who mounted a push-car on a railroad, and went down a steep grade, to his hurt, that, knowing the grade, it was his own folly not to heed the law of gravitation; because it is known to all men of sound mind and of all degrees of intelligence that wheeled vehicles go down hill with increasing speed if left to themselves.

J. D. Murphy, T. A. Green, for plaintiff.

J. F. Frueauff, for defendant.

And in this case the jury was told that the plaintiff could not have recovered for a burn caused by spilling the slag on himself. But the explosive power of hot slag when cast into water is not within the intelligence of ordinary men. It is doubtful whether many people of education know the force and violence of such an explosion ; and, if fully informed, how many of them, when put to service at a smelting furnace, would recall their learning without a suggestion from some source.

What the law will presume as to the knowledge of men in matters of this kind, may, in some instances, be a question of difficulty, and certainly it would not be easy to lay down a general rule on the subject. In the face of the plaintiff’s testimony however, to the effect that he had no knowledge or information of the danger to which he was exposed, it would be manifestly unjust in this instance to hold, as matter of law, that he had notice of it.

After all, it is not so much a question whether the party injured has knowledge of all the facts in his situation, but whether he is aware of the danger that threatens him. What avails it to him that all the facts are known, if he cannot m^ke the deduction that peril arises from the relation of the facts? The peril may be a fact in itself of which he should be informed. So in Coombs v. New Bedford Cordage Co., 102 Mass., 573, the machinery which caused the injury was open to view, and probably it was seen by the party injured. But the danger of the position was not explained as was necessary for the protection of one who had no knowledge of it. In another case in the same Court the rule was applied to an adult person who had full knowledge of all the facts out of which danger arose, but the danger itself was not pointed out to him. O'Connor v. Adams, 120 Mass., 427. The correct rule as to defendant’s liability was announced at the trial, and as to the damages, the amount is not so large as to challenge the attention of the Court. To one in plaintiff’s situation the sum is considerable without doubt, but the injury was great and the suffering intense. It is impossible to say that the jury acted from prejudice or passion or that they passed the limits of fair discretion on the evidence.

The motion for a new trial will be denied.  