#### LORENZO MANKS v. DAVID W. MOORE.1

June 25, 1909.

Nos. 16,226—(185).

Complaint — Demurrer.

A complaint alleged that a servant, directed hy his master to shovel dirt in a trench, objected to the danger to which he was exposed by working in the confined space near a servant using a pick; that the master commanded him to proceed with the work assigned, under threat of dismissal and the promise that the master would protect him against all injury by reason of obeying this command; and that plaintiff went into the trench, and while at *285work there was injured by the pick in use by the other servant. It is *held*that the complaint was not demurrable, in view of the master’s promise to protect the servant. The question arising from the threat of dismissal is not considered nor determined.

Action in tbe municipal court of St. Paul to recover $400 for personal injuries. Defendant demurred on the ground that tbe complaint did not state facts sufficient to constitute a cause of action, and from an order, Hanft, J., overruling tbe demurrer, be appealed.

Affirmed.

*Walter L. Chapin,*for appellant.

*John W. Willis*and *Emil W. Helmes,*for respondent.

1

 Reported in 122 N. W. 5.

Jaggard, J.

Plaintiff and respondent’s complaint alleged tbe following facts: He was a servant of defendant and appellant, engaged in digging a deep, narrow trencb. Defendant directed plaintiff to go down into tbe trencb, to sbovel away eartb loosened with a pick by another servant, and to do bis work standing in tbe bottom of tbe trencb with bis back to tbe man using tbe pick. This involved that plaintiff should stand within less than eight feet of him. Plaintiff told defendant that there was not enough room for two men to work in that place. Defendant emphatically told plaintiff to go ahead and work there, and said, “If you are going to work around here, you must go and help that man.” Defendant then and there assured this plaintiff that be would protect him against all injury by reason of obeying this command. Plaintiff, not daring to refuse to obey such command, and relying upon this promised assurance of safety, went down into tbe trencb and commenced to sbovel away tbe eartb, standing in tbe position and at tbe point indicated by defendant. While so engaged bis left band was struck by tbe pick then in use by tbe man placed behind plaintiff by defendant. As a result, plaintiff suffered an injury, to recover for which be brought this action. To this complaint defendant demurred, on tbe ground that tbe facts set up did not constitute a cause of action. Prom tbe order overruling tbe demurrer, this appeal was taken.

*286The only question argued by defendant is the assumption of risk by plaintiff. The defendant’s negligence is for present purposes admitted. The gist of defendant’s argument as to assumption of risk is that plaintiff knew all of the physical facts and demonstrated his appreciation of obvious danger by expostulating against working in that position and in that place. See Anderson v. C. N. Nelson Lumber Co., 67 Minn. 79, 69 N. W. 630; Dell v. McGrath, 92 Minn. 187, 190, 99 N. W. 629.

It is evident that this argument is not based on a comprehensive conception of the facts admitted by demurrer. It does not purport to cover a number of questions fairly raised by the record. Defendant’s authorities involved no complaint by the servant and assurance of safety by the master, or a promise by the master to protect the servant while at work. On the same principle that a promise by the master to repair machinery in response to complaint by the servant of defects therein may justify the servant in continuing his work, many authorities hold that when the servant has complained of a place dangerous in other respects, and the master has promised to protect the servant, that servant may be justified in proceeding to work in reliance on the master’s assurance of safety and promise of protection. Because of this principle, the present complaint was not demurrable. Dor aught that here appears, it was easily possible for the master to have protected the plaintiff from the danger to which he was exposed by his nearness to the servant using the pick.

Plaintiff also argues that the case is governed by the principle announced by Bindley, J., as quoted, although not approved by this court, in the case of Rase v. Minneapolis, St. P. & S. S. M. Ry. Co., 107 Minn. 260, 275, 120 N. W. 367: “The question whether in any particular case the conduct of the servant was volenti et scienti is a question of fact, and not of law. * * * The mere fact that the plaintiff knew of the danger and yet incurred it is not conclusive. * * * The question in each case must be, not simply whether the plaintiff knew the risk, but whether circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff. * * * The doctrine does not apply when what the servant does is induced by fear of dismissal.” *287This view of the case defendant has not argued at all. His silence on this point, however, is not to be fairly construed into an admission of plaintiff’s contention. In view of the conclusion previously stated, however, we do not feel obliged to consider or to determine the issue. It would be obviously improper, moreover, on demurrer, under present circumstances, to fully discuss the controversy.

Affirmed.