214. U. S.

Argument for Respondent.

Armour v: Hahn, 111 U. S. 313. The reason of the rule is that the master should not be liable for an injury caused by the working place becoming unsafe at the particular time of the accident by causes that could not have been anticipated or by sudden exigencies created in carrying on the details of the work. Grace Hyde Co. v. Kennedy, 99 Fed. Rep. 679. When the plan or method of doing the work directed by the master or any omission of the master creates a danger not necessarily attendant upon the work in which the servant is engaged the master is liable for the results of that danger although it arises in the progress of the work. Woods v. Lindvall, 48 Fed. Rep. 62; Thompson-Starrett Co. v. Fitzgerald, 149 Fed. Rep. 721; Grace Hyde Co. v. Kennedy, 99 Fed. Rep. 679; Western Electric Co. v. Hanselman, 136 Fed. Rep. 564; Felice v. New York Central & H. R. R. R. Co., 14 N. Y. App. Div. 345; Lang v. Terry, 163 Massachusetts, 138; McCauley v. Norcross et al., 30 N. E. Rep. 464.

Mr. Clifford Histed, with whom Mr. James H. Harkless was on the brief, for respondent:

In so far as it is claimed that the injury to the plaintiff petitioner was brought about by the other workmen upon the building the doctrine of fellow-servant exempts defendant from liability. Northern Pacific v. Dixon, 194 U. S. 338; Northern Pacific v. Peterson, 162 U. S. 346; B. & O. R. R. v. Brown, 146 Fed. Rep. 24.

The charge of a defective and faulty construction of the derrick was not sustained by the proof. The same is true as to the alleged failure to furnish a system of signals.

Plaintiff's own negligence contributed to his injury. The case is a somewhat peculiar one in respect to the conduct of the plaintiff, who was an exceptionally intelligent and capable man. The derrick was in plain view of the plaintiff upon the roof and he fairly admits in his testimony that he knew that the men had rested the tub on the roof and, of course, he must have known that they would soon be sending it back. He ap

parently became absorbed in the particular work in which he was engaged and entirely oblivious to his surroundings. He then went along the wall to a point directly in front of the derrick and in the path that the bucket must follow, turned his back upon the men and gave his entire attention to what the people below him were doing, utterly unmindful of his own situation. Of course it goes without saying that he owed a duty to pay reasonable heed to his situation. See Ross v. Ry. Co., 113 Mo. App. 600; National Biscuit Co. v. Nolan, 138 Fed. Rep. 6.

MR. JUSTICE DAY delivered the opinion of the court.

This case is here upon a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit. The action was originally brought to recover for injuries received by Eugene C. Kreigh, petitioner, hereinafter called the plaintiff, while engaged in the employ of the respondent, Westinghouse, Church, Kerr & Company, hereinafter called the defendant, superintending the construction of the brickwork in the erection of a brick and steel building for which the defendant was the contractor.

The case was originally commenced in the District Court of Wyandotte County, Kansas. On the application of the defendant it was removed to the United States Circuit Court for the District of Kansas. In the petition for the allowance of the writ of certiorari a question was made as to the jurisdiction of the Federal court, as it appears that at the time of the removal neither party was a resident nor citizen of the Federal district to which the case was removed, and neither of them a resident nor citizen of the State of Kansas. But it appears that no motion was made to remand for want of jurisdiction in the Federal court, and no question as to the jurisdiction was made until the case came here. In that state of the record the defect as to the jurisdiction being simply as to the district to which the suit was removed, the parties being citizens of different States, the

objection as to the jurisdiction might be, and, in our opinion, was waived, by making up the issues on the merits without objection as to the jurisdiction of the court. It is unnecessary to enlarge upon this feature of the case, as it is controlled by the recent cases of In re Moore, 209 U. S. 490; Western Loan &c. Co. v. Butte Mining Co., 210 U. S. 368.

The remaining question in the case concerns the correctness of the ruling of the Circuit Court, affirmed in the Court of Appeals, whereby, upon the conclusion of the evidence offered by the plaintiff, a demurrer thereto was sustained and the case taken from the jury.

The testimony shows, and in deciding a question of this character the view must be taken of it most favorable to the plaintiff, that he was foreman of the bricklayers engaged in the construction of a large brick building, which the defendant, as principal contractor, was erecting in Kansas City. About the time of the plaintiff's injury a gang of workmen, also employés of the defendant, were engaged in cementing the roof of the building, the plaintiff and his men being engaged in laying the brickwork of the north wall of the building. The roofers were laying concrete upon the top of the roof. This was accomplished by means of a derrick with a rope and bucket attachment for raising the material, which was on the ground on the north side of the building, and which, by means of the derrick and motive power, was raised in the bucket suspended from the boom, or arm, of the derrick, to a height slightly above the roof, and then pulled inward by means of a guy rope attached to the boom, and when the bucket was at the proper place the bottom of it was opened and the concrete deposited upon the roof. Then, in order to put the bucket in position for lowering it, it was swung out over the north wall by means of an energetic push, carrying the end of the boom over the north wall and in position for lowering the bucket again. The work of brick-laying under the superintendence of the plaintiff had progressed to a height of about forty feet in the north wall, and the plaintiff, superintending the erection of a scaffolding for

the men to work upon in the further construction of the wall, was standing upon a plank near the wall, when the boom was swung outward by a push from the men operating it, and the plaintiff was struck by the heavy bucket attached to the rope from the end of the boom, and was knocked off the plank and fell a distance of forty feet to the ground and thereby severely injured.

The testimony shows that the derrick used for the purposes stated was what is known as a "stiff-legged derrick," having a main staff supported by two stiff legs or braces with a swinging boom with hoisting rope attached to it. The derrick at the time was on the top of the roof and was operated by an engine furnishing the power for hoisting the bucket in the manner we have already described.

The plaintiff introduced testimony tending to show that the usual method of constructing such derricks was to provide them with two ropes, one attached on either side of the end of the boom, to be used to haul it back and forth, and for the purpose of steadying its operation; or by the attachment of a lever to the mast in such a way that a man operating the lever could control the swing of the boom. The boom in use had but the one guy rope, and that the testimony shows was used for hauling the loaded bucket over the top of the wall to the place where the load was dumped on the roof. The method of returning the bucket for lowering was by a strong push of the boom, the single guy rope thereof hanging loose at the time.

The testimony of the plaintiff tended to show that while he knew there was a derrick on the roof, he did not know of its method of operation further than he knew that it was operated by hand. He did not know the number of ropes attached to the boom, or whether there was a lever or not; he had not seen the boom in operation from the roof. At the time he was struck, when working on the north wall, he received no warning of the approach of the bucket, and had been there but a very short time when he was struck by the bucket and knocked to the ground.

In the amended petition it was charged as grounds for recovery that

"1. The defendants were careless and negligent in furnishing and operating a defective, improper and unsafe derrick to raise, move and lower said tub or bucket.

"(a) Said derrick was so constructed and operated that there were no means of moving the arm thereof and said bucket or tub after it was emptied, horizontally to or over the north wall of said building, excepting by the employés of the defendants violently pushing the tub or bucket with sufficient force to cause it to clear the wall of the building and also move with it said arm.

"(b) Said derrick was so constructed and operated that there were no means of stopping or controlling it or the tub or bucket attached thereto after the bucket or tub was emptied and started toward and over the wall of said building.

"(c) The ropes and pulleys on said derrick were defective, insecure and improperly arranged and used.

"2. The defendants were careless and negligent in causing and allowing said bucket to be violently pushed and swung against the plaintiff without notice or warning to him.

"3. The defendants were careless and negligent in failing to supply and use a system of signals or warnings to notify persons on the building when the derrick, tub or bucket were to be moved, raised or lowered."

The duty of the master to use reasonable diligence in providing a safe place for the men in his employ to work in and to carry on the business of the master for which they are engaged has been so frequently applied in this court, and is now so thoroughly settled, as to require but little reference to the cases in which the doctrine has been declared. Baltimore & Potomac R. R. Co. v. Mackey, 157 U. S. 72, 87; Northern Pacific R. R. Co. v. O'Brien, 161 U. S. 451; Choctaw, Oklahoma &c. R. R. Co. v. McDade, 191 U. S. 64.

The employé is not obliged to examine into the employer's methods of transacting his business, and he may assume, in