for about three weeks table No. 1 had been in operation without such guard. That she knew this fact when she went to table No. 1 to work must be conceded. She worked all the time in full view of said machinery conveying the pans to said table No. 1, only 71⁄2 feet from her, and saw other girls at work there. The appliances carrying the pans were open to her view, and she could not have looked that way without observing that it was unguarded. Characteristically of such cases, she saw everything about the machinery carrying the pans except the spreaders. She could tell where the elevator was. At the table where she stood at the south side, she admits that the elevator "was right beside my [your] face," so that as she faced her table she "looked into the elevator that carried the pans up." She could not help hearing the sprockets and chains going around, and she admits that had she looked she could have seen the chains and sprockets. The photographs in evidence demonstrate to an absolute certainty that it was a physical impossibility for her to have failed to see the spreaders if she looked at all before her, for they were in plain view. There were intervals of 42 feet between the spreaders, and the chains ran around the shaft at the rate of about 42 feet per minute, so that about 10 of the spreaders passed a given point every minute, or one in every 6 seconds. If she did not see this, it was because she shut her eyes to the view. Is it possible that the law, based upon common sense and in recognition of the instinct of self-preservation, will allow that she should unbidden, of her own volition, thrust her arms between the moving chains, without thought of her own safety, and without a search of the eye to observe the spreaders only 42 feet apart, passing every 6 seconds? Where she stood at the post of duty assigned her, she was clear outside of the revolving chains and spreaders. She was exposed to no danger therefrom. It was no part of her assigned work to expose her hands and arms so as to come in contact with such spreaders. Why, therefore, invoke the doctrine of the duty of the master to advise her of a possible danger to which her allotted work did not expose her? The employer could not reasonably have anticipated that such a paper would chance to drop from its shelf, and much less anticipate the reckless, foolhardy act of this girl, thoughtlessly thrusting her arms through the chains, with the passing spreaders-an act which she could have omitted without dereliction of duty, and which could have been picked up by one of the girls on the opposite side of the table with absolute safety. Is it any palliation of her thoughtlessness that at the table where she had hitherto worked the chains were boarded up as above stated? She knew that table No. 1 had been recently installed; she saw that the endless chains and meshwork there were not protected as at table No. 2. This very fact was calculated to excite her curiosity and inquiry, and put her on her guard. Why should the lady overseer, in assigning the defendant in error to table No. 1, be held to have been guilty of negligence in not warning her that the revolving chains were not boarded up, when that fact was just as well known and apparent to the girl as to herself? Why should she be held to have been guilty of negligence in not pointing out to the

defendant in error the presence of the spreaders and chains, when that fact was open and obvious to her eyes? Especially so when. her work lay outside of this machinery, and when it was not possible to have received the injury without this intelligent, self-poised girl heedlessly and unnecessarily putting her arms in a place of danger. The other girls worked at this table for three weeks without any accident, and there was nothing in the situation to excite any reasonable apprehension on the part of the lady overseer that this girl would do such a thoughtless act as to thrust her arms through such a meshwork of machinery to recover a piece of paper. It is a misconception of the law to apply to such a situation liability on the part of the master on the ground of a failure to provide a safe place for the servant to perform her work. As said by this court in St. Louis Cordage Co. v. Miller, 126 Fed. 495, 513, 61 C. C. A. 477, 495, 63 L. R. A. 551, "One cannot be heard to say that he does not know or appreciate a danger whose knowledge and appreciation are so unavoidable to a person of ordinary intelligence and prudence in a like situation." The liability of the employer in such cases is conditioned that "if the employé himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, although it was occasioned by the defect of the machinery, through the negligence of the employer." Washington, etc., R. R. Co. v. McDade, 135 U. S. 570, 10 Sup. Ct. 1044, 34 L. Ed. 235.

The law does not impose upon the master the extreme obligation to warn the servant "of every possible manner in which injury may occur. He must examine his surroundings, and take notice of obvious dangers and the operation of familiar laws." Nor can he demand that he shall be warned against risks that are as obvious to him as to the master. Miss. River Logging Co. v. Schneider, 74 Fed. 201, 20 C. C. A. 390; Dresser, Emp. Liab. § 99; Goodridge v. Washington Mills Co., 160 Mass. 234, 35 N. E. 484. As said by Judge Sanborn in St. Louis Cordage Co. v. Miller, 126 Fed. 508, 61 C. C. A. 490, 63 L. R. A. 551:

"A preliminary question for the judge always arises at the close of the evidence before a case can be submitted to the jury. That question is, not whether or not there is any evidence, but whether or not there is any substantial evidence upon which a jury can properly render a verdict in favor of the party who produces it."

In view of the indisputable facts in this case, it was not one to be turned over without comment by the court to the jury, to indulge the impulse of sympathy rather than give heed to the voice of the law.

The judgment of the Circuit Court must be reversed, and the cause remanded for further proceedings in conformity with this opinion.

FLORENCE & C. C. R. CO. v. WHIPPS et al.

(Circuit Court of Appeals, Eighth Circuit. May 1, 1905.)

No. 2,062.

1. MASTER AND SERVANT-RAILROADS-INJURIES TO SERVANTS-SAFE PLACE TO WORK.

Where plaintiff's intestate, a railroad employé, was ordered to assist at night in the removal of débris caused by a landslide from the side of a mountain into a cut, obstructing traffic, and was killed by a large rock, which fell down the mountain side into the cut, the railroad company was not liable for failure to provide plaintiff with a safe place to work. 2. SAME-INSPECTION-ASSUMED RISK.

The servants of the railroad company being bound without orders to enter on the work of clearing the tracks without waiting for inspection, plaintiff's decedent was not entitled to rely on the railroad company having made an inspection of the place, but assumed the risk of injury from the dangers incident thereto.

[Ed. Note.-Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

3. SAME-FELLOW SERVANTS.

Where plaintiff's intestate, his foreman, and defendant's roadmaster were all engaged in the common employment of removing débris, caused by a landslide over the track of defendant's railroad in a cut, such roadmaster and foreman were decedent's fellow servants, for whose negligence in inspecting the mountain side for other loose rock which was liable to fall defendant was not liable.

[Ed. Note.-Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippen v. Kimball, 31 C. C. A. 286.]

In Error to the Circuit Court of the United States for the District of Colorado.

The railroad of plaintiff in error runs between the towns of Florence and Cripple Creek, Colo., a distance of about 40 miles, through a rough, mountainous country, having tunnels and frequent cuts on the mountain sides. Rains and stormy weather, liable to loosen earth and rocks on the sides of such cuts, had continued for several days up to about the middle of the afternoon of April 11, 1901, when a landslide of loosened rock came down from the mountain side into a "thorough cut" on section 5 of said railroad, about two miles north of Adelaide Station. The mountain side of this cut down which the slide of rock came was more than 30 feet in height, and nearly perpendicular; and the cut on the opposite side of the track was 10 feet high, or more. The rock which so came down filled the cut for about 30 feet in length, and to the depth of 6 to 8 feet, completely obstructing the passage of trains. John McGrath, the foreman of said section, with such men as he had, began soon after the work of clearing away this fallen rock; and other foremen from nearby sections came with their men to aid him. The conductor of a south bound freight train, which about 4 p. m. was stopped by the obstruction, walked on to Adelaide and telegraphed the occurrence to some managing officer; and about 5 p. m. Miles McGrath, the roadmaster and superintendent of bridges, then at Florence, upon the order of the trainmaster, prepared a work train of flat cars pushed by an engine, and, gathering the laborers of the railroad company along the line, including a gang of bridge workmen, one of whom was Charles H. Whipps, arrived at the obstruction about 8 p. m., pushed the flat cars up to the rock lying in the cut, and set the men to work. Some of them at the south end of the obstruction, and among them the said Whipps, were put to loading the fallen stone upon the flat cars for removal, and others set to work at the north end of the pile of rocks; and said Miles McGrath then assumed the direction of the work. Up to that time John McGrath, the foreman of that sec

tion, had been in charge; and while it was still daylight a brakeman from said freight train called the attention of John McGrath to a crevice at the side of a rock on the mountain side of the cut, and expressed his opinion that it was dangerous; though the brakeman had no experience in such formations. What, if any, inspection of this rock wall on the mountain side of the cut was made by said John McGrath, who was an experienced section foreman on that railroad, where such rock cuts were numerous, does not appear. The conductor of said freight train had met Miles McGrath at Adelaide, and expressed his opinion that there was danger of falling rock at the cut. When Miles McGrath, with his men, reached the obstruction, it was very dark. The only lights available were lanterns, and such light as reached the north end of the work from the headlight of the freight engine, which light, because of a curve in the railroad, did not reach the south side of the work, and from a small bonfire, which was bright for only a few minutes. After Miles McGrath reached the obstruction, because of the darkness, no inspection of the rock in the mountain side of the cut to determine whether any of it was liable to fall could be made with the lights which were available; and several of the foremen went together to Miles McGrath, and one of them in presence of the others asked Miles McGrath if the place had been examined and was all right, whereupon John McGrath, who was also present, said in their hearing to Miles McGrath, "Yes, I examined it before dark, and it is all right." Upon hearing that statement the foremen all went to work with their men, and the work continued until about 9 p. m., when a large rock fell down from the mountain side of the cut at the south side of the work, killing said Charles H. Whipps and some others, and injuring still others of the workmen. The plaintiffs (defendants in error) are the father and mother of said Charles H. Whipps, and brought this action under the Colorado statute to recover the damages, not exceeding $5,000, which they allege they have sustained by the death of their said son, which they aver was caused by negligence attributable to the defendant in not ascertaining by proper inspection the dangerous condition of the cliff of rock on the mountain side of the cut, and not propping or supporting the wall so as to prevent rock from falling therefrom, not advising said Whipps of the dangerous character of the cut, and not providing sufficient lights to enable said Whipps to observe the unsafe conditions, and in failing to provide him a safe place in which to work. Verdict and judgment was for the plaintiffs.

Karl C. Schuyler (Henry M. Blackmer, on the brief), for plaintiff in error.

Joseph H. Maupin and Arthur H. McLain (George H. Wilkes, on the brief), for defendants in error.

Before SANBORN and HOOK, Circuit Judges, and LOCHREN, District Judge.

LOCHREN, District Judge, after stating the case as above, delivered the opinion of the court.

It is a general rule of law governing the relation of master and servant that it is the duty of the master to use ordinary care to furnish and maintain a reasonably safe place for the servant in which to perform his work. This rule as to "safe place" only applies to such place as the master constructs, prepares, or selects for such purpose. It has a very limited application to the erection of new buildings or structures, though it may apply to stagings and the like, supplied by the master; and does not render the master responsible for dangers which necessarily inhere in the work and are. only to be guarded against by the care the servants themselves shall exercise in its performance. Such risks, including the risk of neg

ligence on the part of fellow servants, are assumed by all who enter into the employment. In many cases of preparatory work to fit a place for its intended use, like the excavation along a mountain side of a cut for a railroad track, the work so prosecuted will make the place which was safe before dangerous to the servants, as their work progresses, from the liability of stone or earth to slide down the sides of the cuts so made by the same servants, who must be held to have assumed all such risks. So in the pulling down of structures, and in the removal of débris after some catastrophe or accident which has made the place unsafe and unfit for the use to which it has been devoted, and where the very object of the work is to clear away the wreckage and restore the place to a condition of safety and usefulness. If by such catastrophe a railroad used for the transportation of passengers, freight, and mails is obstructed, the removal of the obstruction is a necessity admitting of no delay, whether the exigency arises in the daytime or at night; and servants employed, who undertake and engage in such work, necessarily assume the incidental risks. Gulf, etc., Ry. v. Jackson, 65 Fed. 48, 12 C. C. A. 507; Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Porter v. Silver Creek, etc., Coal Co., 84 Wis. 418, 423, 54 N. W. 1019; Colo. Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 266, 40 Pac. 251; Carlson v. Railway (Or.) 28 Pac. 497. The fact that the exigency causes the work to be done in the darkness of night and with insufficient lights does not lessen the assumption of the risks of the servants. Gulf, etc., Ry. v. Jackson, 65 Fed. 48, 51, 12 C. C. A. 507. But the court (adopting one of plaintiffs' requests) instructed the jury as follows:

"I charge you that it became and was the duty of said defendant company and its roadmaster, supervisor, and agent, before ordering and directing said Whipps to work at the aforesaid place, to have examined and inspected, or caused to be examined or inspected, the place wherein said deceased was required to work; and if you find that the said defendant, disregarding its duty toward the said deceased, negligently or carelessly failed to inspect the said premises, or negligently or carelessly failed to sufficiently and safely prop or support the said embankment or wall or cliff of rock, so as to prevent the same from caving or falling, or in any other manner negligently or carelessly failed to provide a safe place for the said Whipps to work, or negligently or carelessly failed to see that the loose rock and earth overhead was secure from falling in and upon the said Whipps at the said point, and that the place where he was ordered and directed to work was an unsafe and dangerous place to work, and that by reason of the defendant's violation of its duties and its several duties the said deceased lost his life, the case may be for the plaintiff, in connection with the other evidence in the case."

This charge was duly excepted to, and is assigned as error. The exception must be sustained. The first rock slide occurred late in the afternoon, and wholly obstructed traffic on the railroad, making it the duty of the servants of the railroad near that place, without awaiting orders, to clear the tracks of the fallen rock as rapidly as was possible. There was no time to summon engineers to inspect the face of the cliff. Such slides were not infrequent on this railroad, and there was no evidence that such a precaution as propping or supporting the embankment, wall, or cliff of rock was practicable, or was ever taken or thought of by any one under such circum