Holloway, Respondent, vs. H. W. Johns-Manville Company, Appellant.
April 21
May 8, 1908.
Master and, servant: Assumption of rislc: Latent danger: Assurances of safety by superior officer: Contributory negligence: Question for jury.
1. An employee does not, as matter of law, assume the risk of a latent danger incident to his employment, not actually known to him and discoverable only by careful inspection, where he enters upon the work relying on assurances of safety by the master or superintendent having or professing to have superior knowledge of the situation.
2. Plaintiff’s employment by defendant included cleaning boilers in defendant’s factory under direction of the head engineer. The task required entering the boiler and washing it with cold water. Preliminary to washing, it was necessary, several hours in advance, to blow off the steam or hot water that the boiler might cool. The engineer ordered plaintiff to clean a certain boiler, assuring him that the steam had been blown off seasonably, that he had tested the' boiler, and that it was safe. Whether the boiler was sufficiently cool to be safe could not be ascertained by external inspection. Plaintiff, relying on the engineer’s assurances, entered the boiler without testing it and was scalded by the steam generated by cold water coming in contact with the back end of the boiler, which was still heated. Held, that plaintiff was not barred by the fellow-servant rule.
3. Whether an employee was contributorily negligent in going to work in a place of possible danger, relying upon the assurances of safety by his superior, without making his own inspection, was for the jury.
Appeal from a judgment of the circuit court for Milwaukee county: Okeen T. Williams, Circuit Judge.
Affirmed.
Action to recover damages for personal injuries. The defendant is a corporation owning and operating a large manufacturing plant at Wauwatosa, which is operated by steam furnished by a number of large tubular boilers. Eor some months prior to October 12, 1903, the plaintiff, a common *630laborer fifty-eight years of age, bad. been employed by the defendant as a general utility man, helping at blaeksmithing, steamfitting, and repairing of various kinds as he was directed. It was necessary to clean the boilers frequently, and they were cleaned one at a time. The method was to blow off the steam and hot water twelve hours or more before the' boiler was to be cleaned in order that it might be cool enough to enter, remove the manhole, and then send a man inside-with a light and hose, his duty being to wash out the inside with a stream of cold water through the hose. The plaintiff had frequently cleaned boilers when directed, and knew that if they were not cool enough inside there would be danger. He knew also that they could be tested before going in by turning the hose into them and seeing if steam was formed.
Charles Quinlay was head engineer at the time of the accident and the plaintiff had been placed under his orders. The plaintiff claims that in the evening of October 12th the-engineer, Quinlay, told him he was going to give him a steady job'; that he was to clean one boiler every day; that he was to start with boiler No. 6 on the following morning;, that he (plaintiff) then said to Quinlay: “All right, I will start in the morning. You see that the boiler is blowed off tonight at 8 o’clock” — to which Quinlay. replied that he would see to it. The plaintiff further testifies that he came-back in the morning, found tire manhole of the boiler off, but could not find the gaskets which were necessary to prepare the manhole plates for the work; that it took some time-to get gaskets, and when he was about ready he- met Engineer Quinlay, who asked him if he hadn’t got that boiler yet, and he replied that he had been getting the manhole plates ready, and then asked Quinlay if the boiler was fixed for him to go in, to which Quinlay replied that the boiler was fixed for him to go in, that he had tested it and found it was all right, that he wanted him to take a hammer, the extension lights, go in and wash it out clean, and see that the stay bolts-*631were firm and stable and that there were no leaks; that be then got on the boiler with his hose and got into the boiler through the manhole and ordered the water turned on through the hose; that the water was turned on, and when it struck the back end of the boiler it turned to steam because that part of the boiler was still heated; that he got his head out of the boiler through the manhole, but could not get the-rest of his body out and was badly scalded by the steam. Plaintiff further testified that he would have tested the-boiler himself before going in if the engineer had not told him that he had already tested it.
The engineer, Quinlay, denied that he promised that he-would see that the boiler was blown off before 8 o’clock in the evening, and denied that he told the plaintiff that he had tested it or that it was fit for him to go in. It was not denied that the plaintiff was seriously scalded and permanently-injured.
A verdict for the plaintiff assessing his damages at $5,308.33 was rendered, a motion for new trial was denied and judgment rendered on the verdict, from which defendant appeals.
Eor the appellant there was a brief by Roemer & Aarons, attorneys, and John M. Niven, of counsel, and oral argument by Mr. Niven.
William T. Gi'een, attorney, and W. B. Rubin, of counsel, for the respondent.
Winsi.ow, O. J.
In addition to- its main contention that a verdict for the defendant should have been directed, the appellant in its brief assigns a number of detail errors; but as counsel upon the argument expressly waived consideration of these minor errors and insisted only upon the general claim of insufficiency of the evidence to sustain any verdict for the plaintiff, we are relieved from the consideration of' such minor contentions.
*632The argument is that the evidence shows no- negligence on the part of the appellant; that it provided a safe place to work, safe and suitable tools, and competent fellow-servants; and that the only negligence on the part of any one except the plaintiff himself was the negligence of the engineer, Quinlay, in assuring the plaintiff that the boiler had been tested and sending him into it while it was still hot. It is claimed that this was simply the negligence of a fellow-servant in carrying out one of the details of the common employment, the risk of which the plaintiff assumed.
This contention is met by the respondent first by the claim that the cooling of the boiler (being no part of the plaintiff’s duty) was in effect the preparation of a safe place for the plaintiff to work, like the preparation of a scaffold, and hence was a part of the master’s duty which could not be delegated. Cadden v. Am. S. B. Co. 88 Wis. 409, 60 N. W. 800. We do not find it necessary to decide whether the cooling of the boiler constituted the preparation of a safe placo to work or not. Conceding, but not deciding, that it did not, but that it was a mere detail of the general employment, which if negligently done would become merely the negligent act of a co-employee, there is an additional fact shown by the testimony of the plaintiff which we think is decisive in this- case.
As before stated, it was not a part of the plaintiff’s duty to blow off the boiler and prepare it for cleaning. This was the duty of the night force. The plaintiff came to the spot in the morning as he was directed to do, prepared to clean a boiler which had already been blown off. Mere outside inspection would not necessarily disclose the fact that it was not thoroughly cooled, although a test by throwing water into it would disclose the fact. The immediate superior who had. promised to see that the boiler was blown off at the proper time met him and ordered him to get to work in the boiler at once. In response to the plaintiff’s inquiry whether *633it was ready to go into, i. e. cool enougk, Ris superior assured Rim tRat it was and tRat Re Rad tested it. TRe plaintiff knew notRing to tRe contrary nor would visual inspection from tRe outside tell Rim anything to tRe contrary. Relying on tRis assurance Re entered tRe boiler and proceeded witR Ris work in tRe usual way and was grievously injured because a part of tRe boiler was still Rot.
Row it may be conceded for tRe sake of argument tRat Rad tRe only claim of negligence been tRat tRe boiler was not blown off at tRe proper time, this would Rave been simply negligence on the part of a co-employee of which the plaintiff assumed the risk, but tRe assurance of safety by tRe plaintiff’s superior introduces a new element into tRe question. It is entirely true tRat wRen an employee voluntarily enters upon a task attended witk dangers wRicR are obvious and apparent Re assumes tRe risk of sucR dangers notwitk-standing an assurance by tRe master or Ris agent tRat there is no danger. In suck case Re Ras no rigkt to rely on tRe assurance. He knows tRe danger as fully as Ris superior. Showalter v. Fairbanks, M. & Co. 88 Wis. 376, 60 N. W. 257. But, on tRe otker Rand, if tRe employee Ras no actual knowledge of tRe danger, and it is not obvious to tRe sense but only to be ascertained by careful examination or test, and tRe master or superintendent Raving superior knowledge of tRe situation, or assuming to Rave suck knowledge, assures tRe employee of safety, and tRe employee, relying on suck assurance, goes to work, Re will not be Reid as matter of law to Rave assumed tRe risk. 4 TRomp. Com. on Meg. § 4664; Denning v. Gould, 157 Mass. 563, 32 N. E. 862; Burnside v. Novelty, Mfg. Co. 121 Mich. 115, 79 N. W. 1108; Goggin v. D. M. Osborne & Co. 115 Cal. 437, 47 Pac. 248; Stomne v. Hanford P. Co. 108 Iowa, 137, 78 N. W. 841; 1 Bailey, Pers. Inj. § 898 et seq.; Hoffman v. Dickinson, 31 W. Va. 142, 6 S. E. 53.
In tliis case tRe engineer wRose orders tRe plaintiff was *634required to o-bey was in a position to Rave superior knowledge of the condition'of the boiler and claimed to have such knowledge. The danger was not obvious by inspection. The engineer ordered the plaintiff into the boíles, assuring him that he had tested it and that it was safe. Under these circumstances, it appearing that the plaintiff had no actual knowledge of its condition, the doctrine which prevents a recovery for injuries resulting from the negligence of a eo-employee has no application, and the question whether the plaintiff himself was guilty of contributory negligence in going into' the boiler without making his own test is properly one for the jury.
By the Gourt. — Judgment affirmed.
BashfoRD, J., took no part.