Flaherty v. McClintic-Marshall Construction Co.
Flaherty v. McClintic-Marshall Construction Co.
Opinion of the Court
Opinion by
The plaintiff was a bridge builder and structural iron
He alleges in his statement that he was overcome by the fumes of gas which were negligently and carelessly permitted to escape from the furnaces in the building in which he was working causing him to lose consciousness and fall from the trestle upon a hot pipe by which he was burned; that his injuries were caused by the negligence of the defendant company in permitting gas to escape in the building in which he was working when it knew or should have known that the presence of gas was dangerous to the life of the plaintiff and other employees, and that the defendant was negligent in failing to give the plaintiff sufficient warning of the dangers incident to his work while the gas was escaping.
The work was being done.by the defendant company while the blast furnaces of the Republic Iron and Steel Company were in operation and the gas came from the furnaces. The defendant had nothing to do with or control over the operation of the. furnaces and the presence
On cross examination the plaintiff admitted that he knew of the presence of the gas in the place he was working, that some one had told him that by reason of the gas it was dangerous for him to work there, that on Monday he was overcome by gas and was helped down from the platform by two men, that on Monday and Tuesday he would leave his place of work at intervals of fifteen minutes and get the fresh air for ten minutes, and that he was advised by the other workmen that he should not persist in working too long at any one time.
It is conceded that the defendant had nothing to do with permitting or prohibiting the escape of gas from the blast furnaces as they were operated by the Republic Iron and Steel Company. It is also clear from his own testimony that the plaintiff knew of the presence of gas
The plaintiff claims and so testified that he continued his service under the direct orders of the defendant’s
The judgment is affirmed.
Reference
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- Flaherty v. McClintic-Marshall Construction Company
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- Syllabus
- Negligence — Master and servant — Dangerous employment — Obvious danger — Reliance on master’s judgment — Assumption of rish. 1. A servant assumes the risks naturally and reasonably incident to his employment of which he has knowledge and comprehension. If his master engage his services for a hazardous employment and he does not know by observation or experience of the perils attending it, the master is responsible for any injuries resulting from the risk, but this rule has no application where the .servant has full knowledge of his dangerous position and knows as well how to avoid the danger as his master. If he accept the hazardous employment under such circumstances, he assumes the risk incident to the service. ' 2. The rule that the servant has a right to rely upon his master’s judgment and may recover for the injuries he sustains while in the performance of his work has no- application where the danger is immediate and imminent and the plaintiff knows the fact. 3. In an action against an employer, a construction company, for damages for personal injuries resulting from plaintiff’s being overcome by gas while working upon the roof of an electric blast furnace not owned or operated by defendant, the plaintiff will he held to have assumed the risk where it appears that he had continued his work for three days after he knew, of the presence of the gas and its effect upon him, and that the conditions were dangerous; that during this period he had frequently been forced to stop work on account of the gas; that defendant’s agent had told him that he could work there only for half an hour at a time, and that he had also been notified by other workmen of the danger; and that the defendant was not operating and had no control over the blast furnaces and was not responsible for the presence of the gas. 4. In such a ease the plaintiff is not relieved from the imputation of the assumption of risk by the fact that as soon as he smelled gas he had come down and told his boss, and the latter had said that it was not dangerous and that h'e could work up there for half an hour at a time, and that later he twice again complained and was told to continue, that it would not hurt him.