Opinion
No. 32402.
December 7, 1936.
1. MASTER AND SERVANT.
Servant cannot recover for injuries sustained by use of dangerous method of doing work which he has chosen in preference to safe method furnished by master, since the servant's own negligence is the cause of his injuries.
2. MASTER AND SERVANT.
Servant who performs at night task which is dangerous when performed at night, but which could be done safely during daylight hours of employment, does so at his own risk.
3. TRIAL.
Instruction should not be refused because not drawn with technical precision, if sufficient in meaning to be understood by jury.
4. MASTER AND SERVANT.
Where night watchman was burned when gasoline splashed on kerosene lantern while he was filling machinery tanks, "suggestion" that he perform certain other tasks upon going to work at six P.M. was not "order" or "command" such as required him to incur danger by postponing filling of tanks until after dark.
5. MASTER AND SERVANT.
In action against employer for burns from splashing of gasoline on kerosene lantern while night watchman was filling machinery tanks, evidence that watchman was ordered to perform certain other tasks first upon going to work at six P.M. would not justify refusal to instruct on assumption of risk for failure to fill tanks in daylight hours of employment, where watchman could have filled tanks after dawn of following day.
APPEAL from the circuit court of Sunflower county. HON. S.F. DAVIS, Judge.
Shands, Elmore, Hallam Causey, of Cleveland, for appellant.
Beck knew, and so stated, that he, and everybody knew, that it was exceedingly dangerous to handle this gasoline in close proximity to fire, or this lantern, and that the danger was obvious; that he knew such was likely to cause a fire or explosion; that he had sense enough to know that. Every witness testifying for plaintiff, who was asked the question, agreed with Mr. Beck on this score.
Appellant submits that on the matter of the danger of an explosion or igniting of the gasoline by the lantern or fire in close proximity thereto, was known in the same manner, and to the same extent, and as well, by Beck, as it was to the defendant, appellee, herein; that there was nothing connected with this dangerous situation which the defendant appellant knew, or could know, that Beck himself did not know or could have known.
There was nothing complex about this situation, therefore, no necessity for the master to promulgate and enforce any rules or regulations there about.
Tatum v. Crabtree, 130 Miss. 462.
In order for section 513, Code of 1930, to be applicable the master must be negligent. There can be no negligence unless a duty rested upon the master, which was breached.
The rule is that if the servant has as much knowledge about the tool as does the master, then there is no duty and there is no liability if the tool is defective, because no duty arose, and there could be no breach of the duty which could give rise to a cause of action.
Allen Gravel Co. v. Yarbrough, 133 Miss. 652; Jones v. United Ice Co., 167 Miss. 886; Mitchel v. Brooks, 165 Miss. 826.
Where the simple tool doctrine applies, section 513 is held not to abolish the assumption of risks.
Allen Gravel Co. v. Yarbrough, 133 Miss. 652.
Appellant submits that the theory and doctrine of the simple tool applies and controls here; that no duty rested upon the defendant in this case; that if no duty rested upon him, there could be no legal breach of any duty; that if there was no duty, there could be no negligence, and that section 513 does not apply; that, therefore, as Beck, when he began his job, knew and appreciated the danger, he assumed all risks incident thereto.
If no duty rested upon defendant, the peremptory instruction or directed verdict should have been given.
Beck should not have undertaken to pour the gasoline at night, even under direct orders. Appellant submits that the danger incident to pouring gasoline from the drum into the bucket in close proximity to the lighted lantern was a danger which was manifest and obvious to the plaintiff, and would be to any man of ordinary sense. It is a matter of general and common knowledge that high test gasoline in close proximity or contact with a flame or a surface heated to a high temperature, is likely to ignite or explode. We believe that the court will take judicial notice of this, as it is a matter of such common knowledge.
Brown v. Coley, 168 Miss. 778.
Appellant submits that it is the law in this state that where a servant is employed to discharge certain duties and furnished certain appliances or tools to discharge these duties, and the servant is in complete command and control of the details of how he shall discharge these duties, and there is a safe way or method in which the duties may be discharged by said servant with those tools and appliances, but instead of following the safe method, the servant selected an unsafe method, and as a result of the selection of the unsafe method in doing the duties he is injured, then there is no liability on the master for such injury.
Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407; Stokes v. Adams Newell Lbr. Co., 151 Miss. 711; Ovett Land Co. v. Adams, 109 Miss. 740; Yellow Pine Co. v. Clark, 163 Miss. 661.
The plaintiff's own neglect was the proximate cause of his injury. R.D. Everitt, of Ruleville, for appellee.
The simple tool proposition can have no bearing in this case.
The nearest rule applicable may be found in Hercules Powder Co. v. Tyrone, 155 Miss. 75, the syllabus (3) being: "Hose attached to boiler of locomotive for purpose of cleaning locomotive could not be classed as `simple tool,' and the doctrine of simple tools did not apply where engineer was injured by hot water and steam when nipple slipped off."
This well considered case is authority for the rule that appellee did not assume the risk of his employment around this dangerous agency of gasoline, as he was directed by the master to work as he was at the time he was injured.
The master must use the highest degree of care in the possession and use of dangerous explosives, not only in the conduct of its business, but in the method and plan of carrying on the business, and the doctrine of assumption of risk has no application of injuries to servants from explosives, because of master's failure to exercise proper degree of care.
Hercules Powder Co. v. Williamson, 110 So. 244.
The servant does not assume the risk of the negligence of the master in failing to furnish him a reasonably safe place to work, or a reasonably safe instrumentality with which to work.
Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284.
The risk that the servant assumes is the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant.
Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Evans v. Brown, 106 So. 281; McTighe, Hughey McTighe v. Johnson, 114 Miss. 62; Standard Oil Co. v. Evans, 154 Miss. 475; Whittemore v. Baxter Laundry Co., 148 N.W. 437, 52 L.R.A. (N.S.) 930.
The question of appellee's duty to obey orders of his master depended in this case upon the surrounding circumstances, including the plaintiff's inexperience, his ignorance of the danger, and whether such dangers were so apparent that a person of ordinary prudence and understanding would, under the circumstances in which appellee was placed, have foreseen them.
Withiam v. Tenino Stone Quarries, 48 Wn. 127, 92 P. 900; Enid Elec. Gas Co. v. Decker, 36 Okla. 367, 129 P. 708.
The most that can be consistently said for appellant under the facts as disclosed by this record is that appellee might have been guilty of contributory negligence, which would not preclude recovery, all questions of negligence and contributory negligence being for the jury.
Section 511, Code of 1930.
On April 23, 1935, appellant was the contractor engaged in the construction of a link of concrete highway in Sunflower county. In this construction the usual machinery for such work was used, and there was the usual change and shifting of the men and machinery from point to point along the road as the work progressed, and the machinery would be left upon the road at the end of each day's work. Among the equipment or machinery was a tractor, a mixer, and a finishing machine, each of which was propelled by gasoline. Appellee was the night watchman, and he had been so engaged for about a month. In addition to being night watchman, his duties were to grease and oil the three machines mentioned and to fill their tanks with gasoline. He was to come on duty not later than six o'clock in the evening and to remain until the men came to work in the morning, which was approximately at six o'clock but not earlier than that hour. It usually required about fifty gallons of gasoline to fill the tanks. Appellee was furnished with an ordinary kerosene lantern, and if he elected to do the work of filling the tanks with gasoline at night, this was the only light he had. He states that he well understood the danger of handling gasoline in proximity to an exposed flame, such as that of an ordinary lantern.
On the evening of that date, the sun set at approximately six-forty o'clock; and on the following morning the sun rose at approximately five-fifteen o'clock; and there was, of course, the usual period of available daylight as appertained to that locality after sunset and before sunrise. Instead of using the period from six o'clock in the evening until dark and the additional period from daylight until six o'clock in the morning to fill the gasoline tanks, and which according to the apparent preponderance of the evidence would have been ample time for the performance of that particular task, using proper diligence, appellee first greased and oiled the machines and then after dark attempted to fill the gasoline tanks, in the doing of which there was a splash of gasoline upon the lantern, causing a fire and painful burns upon the lower part of appellee's body. Appellee sued upon the theory that appellant had failed to furnish him with the proper and suitable appliances to do the required work, and, upon the trial, recovered judgment.
The rule has often been affirmed by this court that when the master furnishes a reasonably safe means or method of doing certain work and the servant elects to use a different and dangerous method, he cannot recover for the reason that such acts become the negligence of the servant and not of the master. Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 716, 118 So. 441. See, also, Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 668, 142 So. 443. The principle is otherwise expressed in the rule that the master is as much entitled to expect that the servant will exercise reasonable care in the doing of a prescribed piece of work as is the servant entitled to expect that the master will use reasonable care to furnish him with reasonably proper facilities therefor. Newell Contracting Co. v. Flynt, 172 Miss. 719, 728, 161 So. 298, 743. As a corollary of those principles, it follows that when the servant is employed as night watchman and in addition is required to do certain tasks which may be safely done at night, and another task which may be safely done only in daylight, he must pursue the course of safety, provided there be sufficient daylight time during the hours of the employment within which, exercising proper diligence, he may perform the task that is safely to be done only in daylight; and if he elects to pursue the different and dangerous course, he does so at his own risk. Appellant requested an instruction which sought to present this principle and issue to the jury. The instruction was not drawn with technical precision, but was sufficient in its meaning to be understood by the jury, and we are of the opinion that it was error to refuse it.
We gather from the briefs that the theory upon which this instruction was refused was that the master had specifically ordered the servant to put the gasoline in the machines during the nighttime. The only place in the record of the testimony which gives any support to that contention is a statement by appellee in response to one of the interrogatories that some one of the foremen had "suggested" that the machines be greased up first. A suggestion is not an order or command, and even if so, there was left the time between daybreak and six o'clock the following morning, as to which appellee distinctly testified that his instructions were "to grease up, gas up and oil up this machinery by the time they got ready to work the next morning;" and there is no testimony that the machines were ever started to work before six o'clock in the morning, which would give more than an hour of morning daylight time for this gasoline work. We are not intimating, however, by what has just been said, that the daylight time for the doing of this work was only that in the morning, excluding that in the evening. That inquiry will be left unhampered for consideration upon another trial.
Appellant has earnestly contended that he was entitled to the peremptory charge. While the case is close upon that point, we prefer to reverse and award a new trial, when it may be more clearly developed and submitted upon proper instructions.
Reversed and remanded.