Opinion
No. 30895.
December 11, 1933. Suggestion of Error Overruled January 22, 1934.
1. MASTER AND SERVANT.
Rule that master is charged with knowledge of ordinary dangers to which employee is exposed and with knowledge of constituents and nature of substances used in his business held applicable to use of dangerous chemicals.
2. EVIDENCE.
That asphalt paint will explode when afire is not fact of common knowledge.
3. MASTER AND SERVANT.
Master had duty of warning servant that asphalt paint would explode when afire, such fact not being known to servant, or being of such common knowledge that servant's knowledge thereof would be presumed.
APPEAL from Circuit Court of Forrest County.
T.J. Wills and T.C. Hannah, both of Hattiesburg, for appellants.
If the risk and danger to which the service required to be performed exposes the servant are plainly apparent, both the instrumentality to be employed by the servant in performing the required service and the danger to be encountered in the use of the instrumentality being obvious, so as that there shall cease to be necessity for instruction or warning, the employer may remain silent, and leave the servant to avoid clearly seen danger by the reasonable use of his own faculties.
Dobbins v. Lookout Oil Refinery Co., 133 Miss. 248, 97 So. 546; Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191.
Under the rule laid down by this court there was no negligence on the part of the appellant in its failure to warn the plaintiff that if he stuck his hand in the fire or turned a boiling burning asphalt paint over on him that it would burn him.
A master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the work about which such servants are engaged is dangerous to life or limb; it is only where, in addition to being dangerous the work of the servants is also complex, and the conditions which may arise are uncertain and obscure.
Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; 18 R.C.L., pp. 573, 574, sec. 80; Sufferman v. Leach, 161 Miss. 853, 138 So. 563.
The work that the plaintiff was doing was simple work and not complex. The tools with which he was working were simple tools, a little hole in the ground and a bucket in which he was heating the substance.
Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 78 So. 776; Vicksburg, etc., Co. v. Vaughn, 27 So. 599; Capital City Oil Works v. Black, 70 Miss. 8, 12 So. 26; Hatter v. Railroad Co., 69 Miss. 642, 13 So. 827; Railroad Co. v. Bennett, 111 Miss. 163, 71 So. 310; Stokes v. Adams-Newell Lbr. Co., 118 So. 441; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443.
Lester Clark and F.M. Morris, both of Hattiesburg, for appellee.
While the whole effect of the brief for the appellants is to admit the general rule of law, that it is the duty of the master to warn and instruct his servant who by reason of his immature years or inexperience, or both, in regard to dangers to which the servant would be exposed, if such dangers are known or ought to be known to the master, as was so aptly held by this court in the cases cited by counsel for appellants.
Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Yazoo M.V.R.R. Co. v. Smith, 150 Miss. 882, 117 So. 339; Masonite Corporation v. Lockridge, 163 Miss. 364, 140 So. 223; 39 C.J., p. 486, par. 602; 18 R.C.L., p. 565, par. 76; Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191.
The rule requiring warning and instruction as to dangers of which the employer has actual or constructive knowledge and knowledge of which is not charged to the employee has been applied dangers . . . as to the properties of dangerous chemicals . . . the dangerous properties of dynamite, detonation caps or other explosive agencies or of their presence.
39 C.J., p. 509, par. 620; Enid Electric, etc., Co. v. Decker, 36 Okla. 367, 128 P. 708; Klauder-Weldon Dyeing Mach. Co. v. Gagnon, 183 Fed. 962, 106 C.C.A. 302 (aff. 174 Fed. 477); Republic Iron, etc., Co. v. Lulu, 48 Ind. App. 271, 92 N.E. 933; Charron v. Union Carbide Co., 151 Mich. 687, 115 N.W. 718; Fitzgerald v. Brooklyn Inst. of Arts, etc., 175 App. Div. 554, 162 N.Y.S. 625; Garren v. Ottumwa Gas Co., 185 Iowa 1142, 170 N.W. 428; Payne v. Weisiger (Tex. Civ. App.), 233 S.W. 105; Evans v. Brown, 141 Miss. 346, 106 So. 281; Hercules Powder Co. v. Williamson, 145 Miss. 171, 110 So. 244; Cumberland Tel. Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824.
Argued orally by T.J. Wills, for appellant, and by F.M. Morris, for appellee.
All authorities agree that the master is charged with knowledge of the usual and ordinary dangers and hazards to which he is exposing his employee, and is bound to know the nature of the constituents and general characteristics of the substances used in and about his business or in that part thereof wherein an injury may occur or has occurred; and this rule is applied without serious question in cases of the use of dangerous chemicals. 39 C.J., pp. 491, 510; 18 R.C.L., p. 571; 1 Labatt, 298-301; Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 125 N.W. 724, 27 L.R.A. (N.S.) 953, 136 Am. St. Rep. 454, 19 Ann. Cas. 1152. The testimony is undisputed in this case that the asphalt paint, which the servant was directed to heat by placing a fire under the open container which the servant was directed to use, was liable to explode if it came in actual contact with fire, and the likelihood that the asphalt paint would catch fire under the method of heating directed by the master was a fact which the master could easily have foreseen as a natural and probable consequence of that method.
That asphalt paint would explode when afire is not an obvious fact and is not one of common or general knowledge. The servant in this case did not know that fact, and for the reason stated it is not one which he could or should have been presumed to know. It was therefore the duty of the master to warn him of it, and this the master wholly failed to do. As a consequence, when the paint got on fire, the servant, not knowing that it would explode, attempted to remove the bucket containing the dangerous liquid, and while thus engaged within a yard of it the explosion occurred, and the servant was severely scalded. The case is simple both upon the law and the facts, and the judgment is correct.
Affirmed.