
    The Van Duzen Gas and Gasoline Engine Co. v. Schelies.
    
      Master and servant — Servant acting under immediate order of superior — Prudence required of servant — Law of contributary negligence — Question of care for decision of jury.
    
    1. A servant assumes only such risks incident to his employment as ■will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.
    2. One who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it
    3. In such case the question is one of fact for the jury under proper instructions from the court.
    4. A servant was called by the foreman of a common master to assist him in the adjustment of a machine, and was ordered to do a certain thing in connection with the work; this, to the knowledge of the servant, was dangerous; but he had a short time before done substantially the same thing under the foreman’s order without accident; the danger arose from the proximity of a revolving saw that, by the culpable negligence of the master, was not protected; the servant obeyed the order, using ordinary care, but his clothing was caught by the saw and he was seriously injured. The court left it to the jury to say whether, under all the circumstances, the risk of injury was so great, that no ordinarily prudent man would have obeyed the order; and that if they found that it was, they should return a verdict for the defendant, and if not, they should return a verdict for the plaintiff Held, that the jury was properly instructed.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Hamilton County.
    The action below was for the recovery of damages, arising from a personal injury, averred to have been caused by the negligence of the defendant, the plaintiff at the time being in the employment of the defendant as a servant. The petition as amended was demurred to. After stating the corporate character of the defendant and the relation of the parties as employer and employe, the petition states:
    “That prior to September 27, 1891, defendant had built a machine known as a portable gasoline engine, with pump and circular saw attached, which said pump and circular saw were operated by a gasoline engine, being connected therewith by belting running from said engine to said pump and circular saw. That the defendants, disregarding their duty to furnish safe and secure machinery, conducted themselves so carelessly and negligently and unskillfully in this behalf that they did not provide a fender to, or shield for, said circular saw, but left said circular saw uncovered and unprotected, which said defendant well knew was unsafe and dangerous.
    Plaintiff further says that on said day he, the plaintiff, in the said capacity of machinist, was perempttorily ordered by the defendant, through Emil Bue, the foreman for the said defendant, who was then in charge of said work, and to and under whose orders and commands plaintiff was, and was subject thereto, to adjust the shafting of the said pump, which was next to, and close by said circular saw, and while said machinery was in action, and said circular saw was revolving rapidly.
    Plaintiff further says that he, in obedience to said orders of said defendant’s foreman, and without time or opportunity to reflect, or realize the danger of obeying said orders by reason of the proximity of the shafting to said circular saw, but in obedience to the peremptory order of the foreman to do the particular act which he was directed to do, proceeded to work on the said shafting of the pump; and, while so working, plaintiff’s clothing was caught by said circular saw; and plaintiff pulled over onto said circular saw; and said circular saw cut into plaintiff’s flesh, in front of his body, and cut off his thumb and forefinger, and otherwise so tore and mangled his left hand, of which the thumb and forefinger were part, as that a part of the palm of his left hand had to be removed by a surgeon.
    Plaintiff further says that said injuries were not caused by any fault or negligence on plaintiff’s part, but by reason of the carlessness and negligence of the defendant in not having a shield over, or fender to said circular saw, and in not stopping said machinery from running, and said circular saw from revolving (which might readily have been done) while plaintiff was in discharge of his duties under the peremptory order aforesaid., on the shafting of said pump; and in ordering and requiring the plaintiff to undertake said work while the machine was in motion.”
    It then concludes with a statement of the plaintiff’s injuries and the amount claimed as damages.
    The demurrer was overruled and the defendant answered denying all the inculpatory averments of the petition, and adding that the injury received by the plaintiff was solely due to his own negligence and carelessness.
    The case was tried to a jury; and at the close of the plaintiff’s evidence, a motion was made by the defendant to arrest the case from the jury on the ground that there was no evidence to support the allegations of the petition. This was overruled and exception taken.
    At the close of the evidence for both parties, the court charged the jury, to which exceptions were taken, by the defendant, as well as to its refusal to give certain instructions asked by it. The material parts of the charge affecting the right of the plaintiff to recover, and to which exceptions were taken, are as follows:
    “When the plaintiff entered into the employment of the defendant he took the risk of the obvious and known dangers, and the danger from this saw when running was obvious and known to him, and he cannot recover for injuries received by him on the saw simply because it could have been made less dangerous by being covered. It is claimed, however, that the plaintiff was in the employment of the defendant, a corporation, subject to the orders of the foreman, and that the plaintiff was ordered by the foreman to do certain work on a machine which was dangerous by reason of the place of the work being near a running saw; and that in proceeding to do the work under the order he received the injury.
    Now, if the plaintiff was subject to the orders of the foreman, and if the defendant, through its foreman, ordered the plaintiff to do the work on the machine at the place which was dangerous on account of its being near that running saw, and if the plaintiff obeyed, and was thereby injured by being cut on the saw, this act of the plaintiff in going so near the saw will not be contributory negligence on his part unless the danger was so glaring that no prudent man would have entered on the work so ordered even under orders from one having authority over him.
    • Now, the defendant claims that no such order was given to the plaintiff, and if you find that no such order was given to the plaintiff then he can not recover in this case, and your verdict must be for the defendant. If you find, however, that the-plaintiff was ordered by the foreman, or other superior officer, to do work on the machine at a place which was dangerous on account of being near the saw, and that he obeyed and was thereby injured, then the plaintiff can recover, and your verdict should be for the plaintiff unless you find that the danger of obeying the order and doing the work was so glaring that a prudent man, although an employe under orders of his employer, would not have entered on the work.”
    The instructions asked were inconsistent with the charge; so that, if the charge properly stated the law applicable to the case, the instructions were properly refused. Again, as the demurrer to the petition, and the motion to arrest the case from the jury, present substantially the same questions as arise upon the charge, the errors assigned thereon need not be separately noticed.
    The jury rendered a verdict for the plaintiff on which the court rendered judgment, after overruling a motion for a new trial; and this judgment has been affirmed by the circuit court.
    The reversal of both courts is asked on the ground that the jury was erroneously instructed as to' the law of the case; the contention of the defendant being that, if the danger was open and obvious, the plaintiff below could not recover, although he acted in obedience to the order of a superior.
    
      Follet & Kelley, for plaintiff in error.
    That the demurrer to the amended petition should have been sustained was decided by this court in the case of Coal and Car Co. v. Norman, 49 Ohio St., 598; Mad River R. R. Co. v. Barber, 5 Ohio St., 541; Engel, Guardian, v. The Standard Lighting Co., 12 C. C., 489; 5 C. D., 572; Beach Contributory Negligence, Section 16.
    The duty of a servant to protect himself against known danger stands upon the same footing and is equally as obligatory as is the duty of a master to protect him from danger. A servant who'exposes himself to a known and obvious danger can not throw the responsibility of injury received from such exposure upon his master, upon the alleged ground that he was ordered by his master to so expose himself.
    That the order of the employer or of one standing-in the place of the employer will not excuse the employe in exposing himself to a known and obvious danger or entitle him to recover of the employer for in-injuries received by such exposure, is distinctly decided in many cases to some of which we desire to direct the court’s attention. Platt v. R. R. Co., 84 Ia., 694; Russell v. Tillotson, 140, Mass., 201; Kean v. Detroit Copper Mills, 66 Mich., 277; Griffin v. Glen, Mfg. Co., (N. H.) 30 Atl. Rep., 344; Davis v. Western Railway, 107 Ala., 626; Stuart v. New Albany Mfg. Co., 15 Ind. App., 184; Jones v. R. R. Co., 11 Texas Civil App., 39, s. c. 31 S. W., 706; Railroad Company v. Jones, 95 U. S., 439; Bailey on Master’s Liability for Injuries to Servant, 159 et seq.; Texas & P. Ry. Co., v. Rogers, 6 C. C. A., 403; Illick, Admr., v. R. R. Co., 67 Mich., 632; Way v. R. R. Co., 40 Ia., 341; Walsh v. R. R. Co., 27 Minn., 367; Lothrop v. R. R. Co., 150 Mass., 423; Swoboda v. Ward, 40 Mich., 423; Balle v. Leather Co., 73 Id., 158; Melzer v. Car Co., 76 Mich., 94; Fisher, Admr., v. The C. & G. T. T. Co., 77 Mich., 546; Williams v. R. R. Co., 116 N. Y., 628; Railway Co. v. Leech, 41 Ohio St., 388; Tuttle v. Ry. Co., 122 U. S., 169; Sweeney v. Envelope Co., 101 N. Y., 520.
    The facts in this last case are analogous to the case at bar, and this decision, we submit, is exactly in point. Dougherty v. West Superior Co., 88 Wis., 343; Missouri Ry. Co. v. Spellman, (Tex. Civ. App.) 34 S. W., 298.
    In the case at bar, as we have seen from Schelies’ testimony, he knew the danger, and knowing it the order of the foreman to do the work does not change the rule. Wheeler v. Beery, 95 Mich., 251; Reed v. Stockmeyer, 20 C. C. A., 881; Hazen v. Lumber Co., 91 Wis., 208; Hazlehurst v. Brunswick Lumber Co., 94 Ga., 535; Thompson v. R. R. Co., 51 Neb., 527; Higgins Carpet Co. v. O’Keefe, 25 C. C. A., 220. See also Lovejoy v. R. R. Co., 125 Mass., 79; 2 Thompson on Negligence, 976; Wood on Master and Servant, Sec. 373 and notes; Bailey on Master’s Liability, 115 et seq.j Mississippi River Logging Co. v. Schneider, 20 C. C. A., 390; Kinsley v. Pratt, 148 N. Y., 372; Wood on Master and Servant, Sections 326, 328, 332, 335; Motey v. Pickle Marble & Granite Co., 20 C. C. A., 366; Stevenson v. Duncan, 73 Wis., 404; Atlas Engine Co. v. Randall, 100 Ind., 293; Foley v. Pettee Machine Works, 149 Mass., 294; Lindstrand v. Delta Lumber Co., 68 Mich., 261; Wilson v. Cotton Mills, 169 Mass., 67; Hettchen v. Chipman, 41 Atl. Rep. (Md.) 65; Ciriack v. Merchants’ Woolen Co., 146 Mass., 182; Roepcke v. Mich. Cent. R. R. Co., 100 Mich., 541; Way v. R. R. Co., 40 Ind., 341; Anderson v. R. R. Co., 39 Minn., 523; Palmer v. Harrison, 57 Mich., 182; Hickey v. Taffe, 105 N. Y., 26; Pitrowsky, Admr., v. Elevator Mfg. Co., 54 Ills. App., 253; Keets v. Machine Co., 33 C. C. A., 221.
    We think the decision in the case of Coal and Car Co. v. Norman, 49 Ohio St., 598, fully sustains us in this contention. We ave, however, equally sustained in this proposition by the decisions of the courts of last report in other states. Williams v. Churchill, 137 Mass., 342; Taylor v. Carew Mfg. Co., 140 Mass., 150; Warner v. Kendall (Colo. App.), 34 Pac. Rep., 1014; Writt v. Girard Lumber Co., 91 Wis., 496; Ruchinsky v. French, 168 Mass., 68.
    
      
      Kittredge & Wilby and F. D. Goodhue, for defendant in error.
    The relation ir which the parties stood to each other is settled in the case of Berea Stone Co. v. Kraft, 31 Ohio St., 287.
    The question, and, indeed, the only question that can be raised by the plaintiff in error, either upon its demurrer or the special charges which it asked, is: Was the plaintiff below guilty of contributory negligence? Was the law correctly applied upon that subject?
    The rule upon this subject is laid down by this court in Railway Co. v. Krouse, 30 Ohio St., 222.
    In connection with the question whether the plaintiff below was guilty of contributory negligence in attempting to obey the order of the master, we refer to the statement of the principle by this court contained in the third syllabus of the case of P. R. R. Co. v. Schneider, 55 Ohio St., 343.
    The proposition of law upon which we rely, that a servant obeying an express and peremptory order of his master to do a particular act, is not guilty of contributory negligence, unless the danger from obedience is so obvious and injury thereby is so inevitable, that a man of ordinary prudence would not obey, even if he was ordered by his employer to do it, is illustrated in its application by the recent decision of the Supreme Court of the United States in N. P. R. Co. v. Edgeland, 163 U. S., 93.
    Our adversaries seek to distinguish that case from the case at bar by saying that the danger from a buzz-saw was greater and more obvious than the danger of jumping from a moving train. Is that true? It will be remembered that Emil Bue, the foreman, a short time previous to the order and act in question here, had himself, in the presence of Schelies, loosened all the screws of the bed-plate of the pnmp. Schelies called his attention to the danger from the moving saw, and suggested that it should be stopped. The foreman assured him there was no danger; and the plaintiff, Schelies, in obedience to the order of the foreman, had taken a block and leaned over the wheel and knocked the base of the pump into place. When Schelies was again called from his work by the foreman, and expressly ordered to take the monkey-wrench, and, in the position which he was required to occupy by the foreman’s side, to lean' over and tighten the screw nearest to the saw, is it to be said, as matter of law, and in view of what had already been done, that in obeying this order calling for instantaneous action, he was guilty of contributory negligence, because he failed to choose the hazard of being discharged from his employment by refusing to obey the order?
    The cases which hold that such a question is proper to be submitted as a question of fact to the jury, are too numerous for citation. We refer the court to a number of them without endeavoring to analyze them, believing it will be much easier and more satisfactory for the court to examine these authorities for itself upon the point to which they are cited by us. Stephenson v. Hannibal R. R. Co., 86 Mo., 221; S. C., 96 Mo., 207; Shortell v. City of St. Joseph, 104 Mo., 114; Halliburton v. Wabash R. R. Co., 58 Mo. App., 27; Illinois Steel Co. v. Shymanowski, 162 Ill., 447, S. C., 59 Ill. App., 32; McKee v. Tourtelott, 167 Mass., 69; Chicago R. R. Co. v. McCarty, 49 Neb., 475; Taylor v. Evansville R. R. Co., 121 Ind., 124; Patterson v. Pitts. Ry. Co., 75 Pa. St., 389; Miller v. Union Pac. Ry. Co., 12 Fed. Rep., 600; Railway Co. v. Bayfield, 37 Mich, 205; Thompson on Neg., 974.
   Minshall, J.

It is well settled in the law governing the relation of master and servant, that the latter on entering the employment of the master assumes all risks incident to the employment ; in other words, as is sometimes said, the master is not an insurer of the safety of his servant. By this, however, is meant no more than that, the servant assumes all risks incident to the employment, that may happen in the ordinarily careful conduct of the business on the part of the master —injuries that result from the culpable negligence of the master are not assumed, and he may recover therefor, unless his own fault contributed to the accident. It therefore follows that the servant can have no relief against his master for injuries resulting from known and obvious dangers, avoidable by ordinary care, however culpable the master may be in the matter. All such injuries, together with such as happen where there is no fault on the part of the master, are, in the ordinary language of the law, assumed by the servant.

To this general statement of the law, applicable to the great majority of cases, there is what may be termed an exception, adapting it to a state of case that does sometimes, but not always, arise. Thus if the master or his representative has superior knowledge of a. given situation, and he assures the servant that he can safely undertake a given work, such assurance may justify the servant in undertaking the work, in reliance upon the superior knowledge of the master, without being liable to the charge of negligence in so doing, unless the danger is so imminent or manifest as to prevent a reasonably prudent man from risking it; and, for a much stronger reason, this is so, where the master, or one placed in authority over the servant, orders him into an apparently unsafe place, or to do apparently dangerous work. In Shortel v. City of St. Joseph, 104 Mo., 114, it is said: “Master and servant do not stand upon an equal footing even when they have equal knowledge of the danger. The- position of the servant is one of subordination and obedience to the master, and he has the right to rely upon the superior skill of the master, and is not entirely free to act upon his own suspicions of danger. If a servant is ordered into a place of danger, obeys and is injured, he will not be held to be guilty of contributory negligence, unless the danger is so glaring that a reasonably prudent person would not have entered into it.” In this case an employe of the city was directed by the city engineer to go into a trench excavated by the city and remove some supports to an arch, which being done, the arch fell and injured him. He was assured by the engineer that it was safe to do the work. The City of Lebanon v. McCoy, 12 Ind. App., 500 is a similar case," and in both a recovery was allowed the servant. In the latter case it is said: “When directed to do the act in the performance of which he was injured, he had a right to assume that the street commissioner, with- his superior knowledge of the facts, would not expose him to unnecessary peril.” In Patterson v. Railroad Co., 76 Pa. St., 391, 393, a like doctrine is expressed by Gordon, J., in this language: “The servant does not stand on the same footing with his master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed.” And in Greenleaf v. Railroad Co., 29 Iowa, at p. 47, it is said: “Though decedent knew of the defective car, if he acted under instructions and directions of a superior, the action would by no means thereby be defeated. Under such circumstances, compelled as he necessarily would be to act with promptness and dispatch, it would be most unreasonable to demand of him the thought, care and scrutiny which might be exacted where there is more time for observation and deliberation.” See also, Railroad Co. v. Snyder, 55 Ohio St., 343. In Keegan v. Kavanaugh, 62 Mo., 230, it is said: “The law remembers that the respective situations of the master and servant are unequal, and excuses the servant for deferring to the superior judgment of the master. ' If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the laws will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even when, like the servant, he was not free to choose.”

The clear result of the best considered cases is, that where an order is given a servant by his superior to do something within his employment, apparently dangerous, and, in obeying, is injured from the culpable fault of the master, he may recover, unless obedience to the order involved such obvious danger, that no man of ordinary prudence would have obeyed it; and this is a question of fact for the jury to determine under proper instructions, and not of law for the court. Berea Stone Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Krouse, 30 Ohio St., 222; Coombs v. Cordage Co., 102 Mass., 572; Burgess v. Ore Company, 165 Mass, 71; Shortel v. City of St. Joseph, 104 Mo., 114; Illinois Steel Co. v. Schymanowski, 162 Ill., 447; McKee v. Tourtellotte, 167 Mass., 69; Patterson v. Railroad Co., 76 Penn. St., 389; Railway Co. v. Bayfield, 37 Mich., 205; Schlacker v. Mining Co., 89 Mich, 253; Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill., 573; Kain v. Smith, 89 N. Y., 375. In Northern Pacific Railroad v. Egeland, 163 U. S., 93, the plaintiff below was a common laborer in the employ of the company. When returning from his work on a train the conductor ordered him and others to jump off at a station -when the train was moving about four miles an hour. The platform was about a foot lower than the car step. His fellow7 laborers jumped and landed safely. He jumped and was seriously injured. Held, that the court below7 rightly left it to the jury to determine wrhether he was guilty of contributory negligence. In commenting on the circumstance of the case, Peckham, J., said: “The plaintiff wuuld naturally, therefore, be induced to obey the order of such superior, particularly if they were not of an obviously dangerous character.”

There is much reason in the rule that allows a favorable construction to be placed on the act of the servant done in obedience to the order of his superior, though involving danger. Obedience to orders given by a master becomes a habit wdth the servant. He obeys without much questioning the prudence of the order. It is expected that he will do so, and without such obedience the business of the master could not be successfully conducted. It is then both reasonable and proper that the master should be held to a reasonable responsibility for w7hat he orders his servants to do; and the conduct of a servant in obeying an order, under such circumstances, should not be too closely criticised by courts in administering the law. Whilst the law will not excuse the servant, w7here the thing ordered is plainly and manifestly perilous, it will do so w7here a man of ordinary prudence and care would, under the circumstances, have obeyed the order, although involving danger. A servant has the right, and is expected, to rely somewhat on the superior knowledge and skill of one placed in authority over Mm. So that, in this case, whether Schelies was, under the circumstances, guilty of contributory negligence, was a question of fact for the jury under proper instructions from the court; At the time the injury occurred he was in the employ of the defendant as a “vise-hand,” and had been called by the foreman to assist in the adjustment of a portable gasoline engine with pump and circular saw attached. The saw was in motion at the time and not properly protected; and he was ordered to adjust the shafting of the pump, which was close and next to the saw. He suggested that it was not safe to do so without stopping the saw. The foreman peremptorily renewed the order; he obeyed, his clothing was caught by the saw and he was seriously injured. It was in evidence, that he had been called a short time before to assist the foreman in the same way, and had done so without injury. The defendant asked the court to instruct the jury that: “If the master or one standing in the place of the master, as the foreman in this case, orders a servant to expose himself to a danger known and appreciated by the servant, and in executing such order the servant is injured, he cannot recover unless he shows that he was injured solely in consequence of such danger, and without fault or negligence on his part.”

This was refused, and the court instead instructed the jury: “That if the plaintiff was expressly ordered by the foreman to do the work that he undertook to do, the fact that it was dangerous would not preclude the plaintiff from recovery unless the danger was so obvious, and injury thereby was so inevitable, that a man of ordinary prudence would not obey if he was ordered by his employer to do it.” The case then was given to the jury under proper instructions as has been shown, and the instruction asked by the defendant was properly refused.

Counsel contend that the case should be- ruled by Coal Car Co. v. Norman, 49 Ohio St., 598. This we think is a mistake. It belongs to a different class of-cases. Tt turned on a question of pleading. He averred. that the injury to him occurred Avithout fault on. his part. It was held that this did not dispense with an averment required in that class of cases, that he was Avithout knowledge of the dangerous character of the place in which he received his injury; or, having such knoAvledge, had complained of it to his master. For if he had such knoAvledge and failed to inform his master, he assumed the risk by continuing in his service Avithout doing so.

Affirmed.  