
    Olaf Olson vs. George McMullen.
    July 24, 1885.
    Master and Servant — Injury to Servant — Knowledge of Danger. — Application of the rule that a servant cannot recover from, his master for an injury sustained in doing dangerous work which he is set to do, if the danger is of such character that it must be as apparent to the servant as to the master.
    Appeal by plaintiff from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial, the action having been dismissed at the trial, on defendant’s motion, at the close of plaintiff’s evidence.
    
      Merrick é Merrick, for appellant.
    
      Smith & Reed, for respondent.
   Gilfillan, C. J.

Action for an injury to plaintiff’s person, caused by alleged negligence of defendant. The negligence alleged consisted in this, that the defendant’s foreman, without informing him of the danger, ordered plaintiff, who was in defendant’s employment, and who alleges he was not aware of the danger, and who, by reason of being an ignorant person, unable to speak or understand the English language, was unable to appreciate and understand the danger, into a place of great and extraordinary danger to do his work. The work in which plaintiff was employed was wheeling earth in a wheelbarrow to uncover a stone quarry. He had to wheel the earth along a path two or three feet wide. On one side of it was a precipitous excavation about 15 feet deep; on the other side a bank or wall of earth about 15 feet high, nearly perpendicular, and in some places even overhanging the path. It was in the spring, when the frost coming out of the earth made the earth in the bank or wall more than usually liable to break away and fall upon and over the path into the excavation. As plaintiff, with a wheelbarrow full of earth, was passing along the path, a part of the earth in the wall broke away and fell, striking plaintiff and his wheelbarrow, and throwing them into the excavation, and he was hurt.

Plaintiff had worked in the same place for from one to two weeks before the accident. He appears to be of mature years, and, though perhaps ignorant in some things, of ordinary capacity. He must be presumed to have had the knowledge which common observation forces on the most ordinary intellect, to have known the effect and operation of the law of gravitation and of thawing frost upon a perpendicular bank of earth. He must be presumed to have known that from such causes the earth will break away and fall down, and that the fall must be attended with danger to any one in its way. Walsh v. St. Paul & Duluth R. Co., 27 Minn. 367.

As the danger was as well known to him as to the foreman, he must be taken to have assumed the risk and cannot hold others responsible for the consequences.

Order affirmed.  