(dissenting).
I dissent. In my opinion the rules enunciated in all of the Minnesota decisions dealing with accidents of this kind, beginning with Olson v. McMullen, 34 Minn. 94, 24 N. W. 318, and ending with Dobreff v. St. Paul Gaslight Co. 127 Minn. 286, 149 N. W. 465, compel a finding that decedent assumed the risk as a matter of law. While these early cases involved actions brought by employees against employers before the enactment of workmen’s compensation laws, the principles which they developed apply with the same force to the instant claim against a third-party contractor.
*422In the Olson case the plaintiff was injured when he was struck by a chunk of earth which fell from a perpendicular bank below which he was walking. Although in that case the plaintiff was unable to speak or understand English, the court held (34 Minn. 95, 24 N. W. 318):
“* * * He [plaintiff] appears to be of mature years, and, though perhaps ignorant in some things, of ordinary capacity. He must be presumed to have had the knowledge which common observation forces on the most ordinary intellect, to have known the effect and operation of the law of gravitation and of thawing frost upon a perpendicular bank of earth. He must be presumed to have known that from such causes the earth will break away and fall down, and that the fall must be attended with danger to any one in its way.”
Later cases emphasize that in order for the doctrine to apply, the danger must not be concealed but must be open and obvious,1 and the plaintiff must have the same means of knowing the dangerous condition as defendant.2 The employee is bound to comprehend the operation of familiar natural laws if he is a person of ordinary intelligence.3 Whether special knowledge or instruction is required in the performance of particular work has been held relevant.4
In disposing of a claim which arose before the defense of assumption of risk was abolished in master-servant cases but was decided after the statute was adopted, we summarized the elements which govern the rule in Dobreff v. St. Paul Gaslight Co. 127 Minn. 286, 149 N. W. 465. Here again plaintiff was foreign born and had limited knowledge of English, but the court held that the hazards of excavating should have been understood by him in the absence of any concealed danger since the conditions were open and apparent to a person of his intelligence. In refusing to find assumption of risk as a matter of law we noted in Hill v. Winston, 73 Minn. 80, 75 N. W. 1030, that plaintiff’s position was there one of subordination and obedience and *423we observed that he wasn’t therefore entirely free to act independently after he suspected the danger. In that case plaintiff was directed by his foreman to work in a hazardous place, and we held that the question of assumption of risk was one for the jury.
While the doctrine is not favored by the courts and is usually a jury question, where the evidence is conclusive, the decision becomes a question of law for the court to determine.5
In the instant case it is first of all apparent that decedent was a person of maturity, experience, and intelligence. At the time of the accident he. was 25 years of age and had completed 2 years of college. Prior to his death he had been employed by the Twin City Testing & Engineering Laboratory, Incorporated, for 3 years, and during the last year he devoted his time regularly to the occupation of soil testing except during the winter months. Mr. Oliver Younger, a superintendent for the architects, testified that he felt decedent “would have gone a long way in the testing and engineering business.” The laboratory chief of decedent’s employer stated decedent was an able technician. The vice president of the company characterized him as an exceptional person who worked with precision and accuracy and rated him “highest” in comparison with others doing the same work. In contrast to the facts which governed in Hill v. Winston, supra, decedent was not in a position of subordination or obedience to anyone on the job and was at liberty to decide independently and without compulsion whether he would accept the hazardous conditions or refuse to assume the obvious risks. Nor was he given any assurances which would justify his failure to comprehend the dangers. On the contrary, it is apparent from the record that he actively directed and supervised the digging and locating of the trench which caused his death.
The only reason for Mr. Peterson’s being on the site was to determine whether the architect’s misgivings about the soil compaction were well founded. It is difficult to conceive of anything which would constitute a greater warning of potential trouble than just the an*424nounced purpose of decedent’s assignment. One of the architects stated that because of defective backfilling it was necessary to withhold payment to the subcontractor.
“* * * We were worried that the compaction wasn’t done properly * * *. We knew that the man hadn’t done it right and we felt it wasn’t compacted properly, that settlement would take place, naturally this worried us. He hadn’t complied, we wanted him to do it right. We went out of our way, as a matter of fact, for this particular contractor to allow him to just make compaction tests because in fairness to a contractor we don’t want him to do something that is unnecessary even though he had a breach of what he should have done.”
The architect’s superintendent stated he called attention to the fact the contractor’s operatqr was filling the trench without compaction, and that he instructed the contractor to use a “sheepfoot” roller or vibrating compactor but that his advice was ignored. The same witness was permitted to testify that he informed decedent of the problems necessitating the tests which decedent was there to conduct. In the light of this testimony the evidence is conclusive that decedent was fully aware of the likelihood the soil would give way unless adequate safeguards were provided. Notwithstanding this knowledge, decedent voluntarily entered a trench which was 10 feet deep and 2 Vi feet wide, with the ground level at least 4 feet over his head. The defendant’s negligent failure to take adequate precautions (on which his liability was based) was equally apparent to both parties. The trench was narrow and the walls perpendicular and without sloping, shoring, or bracing. It would be obvious to the most inexperienced layman that the excavation was a deathtrap. To aggravate the possibility of an imminent collapse there were piles of dirt 4 feet high within 2Vi feet of the edge of the trench on the side which in fact did cave in and cause decedent’s death.
To summarize, at the time of his death decedent was a mature, educated, intelligent person, experienced and trained as a professional soil tester, alerted to the possibility of the very condition which caused his death and acting without the urging, direction, or assurances of *425anyone in authority supervising him. Not only were the dangers open and apparent but he himself was instrumental in creating them.
I respectfully submit that in hard cases such as this, the court should be vigilant against delegating to the jury its unpleasant judicial responsibilities, and avoid abdicating its constitutional prerogative of fixing the boundary line between questions of fact which the jury must decide and questions of law which the court must determine. I would reverse.
Pederson v. City of Rushford, 41 Minn. 289, 42 N. W. 1063.
Kletschka v. Minneapolis & St. L. R. Co. 80 Minn. 238, 83 N. W. 133.
Swanson v. G. N. Ry. Co. 68 Minn. 184, 70 N. W. 978; Reiter v. Winona & St. P. R. Co. 72 Minn. 225, 75 N. W. 219.
O’Neil v. G. N. Ry. Co. 101 Minn. 467, 112 N. W. 625.
Syverson v. Nelson, 245 Minn. 63, 71, 70 N. W. (2d) 880, 885; Geis v. Hodgman, 255 Minn. 1, 6, 95 N. W. (2d) 311, 315.