Summary
In Ness Creameries v. Barthes, 170 Miss. 865, 155 So. 222, there was a question presented for the jury, but there was no evidence that there were any orders or instructions given to the decedent employee of the independent contractor either by his own foreman or by the owner of the premises, and this case is, therefore, distinguishable from the case at bar.
Summary of this case from Harris v. Gulf Oil Corp.Opinion
No. 31265.
June 5, 1934. Suggestion of Error Overruled October 1, 1934.
1. NEGLIGENCE.
Owner owed employees of independent contractor on premises to move owner's machinery reasonable care to prevent injury from any defect in premises or machinery.
2. NEGLIGENCE.
Owner of creamery owed employees of independent contractor on premises to move machinery such reasonable care to prevent escape of ammonia from tank as well known scientific facts indicated, since exposure to ammonia is imminently dangerous to human life.
3. NEGLIGENCE.
In all occupations attended with great and unusual danger, failure to use such appliances as are known to science and readily attainable for prevention of accidents is culpable negligence.
4. NEGLIGENCE.
In action for death of employee of independent contractor on premises of operator of creamery to move machinery, whether creamery operator was negligent in failing to prevent breaking of pipe connecting with ammonia tank and resulting death from exposure to escaping ammonia held for jury.
APPEAL from Circuit Court of Harrison County.
W.L. Guice and Wadlington, Corban Grant, all of Biloxi, John L. Heiss, of Gulfport, and R.H. and J.H. Thompson, both of Jackson, for appellant.
Plaintiff's intestate was nothing more nor less than an invitee. The record discloses that defendant's machinery and plant, so far as defendant knew, were in a perfectly safe condition; that neither defendant nor any of its servants had any cause to suspect that the pipe extending from the ammonia drum would be broken.
Samuelson v. Cleveland Iron Mining Co., 43 Am. Rep. 459.
When plaintiffs were held to be entitled to go to the jury on the question of whether or not defendant was negligent in maintaining the pipe this was tantamount to a ruling, in view of the undisputed testimony, that defendant owed to plaintiffs' intestate the very highest degree of care for his safety. This is not the law. Defendant was not an insurer and defendant was not under the duty to William Barthes of exercising the highest possible degree of care in the maintenance of its plant.
McDonald v. Hall-Neely Lumber Co., 165 Miss. 143; Mitchell v. Brooks, 165 Miss. 828.
Even in the cases where the relation between master and servant exists, the master is not held liable for injuries resulting from defective tools or appliances unless the master has knowledge, either actual or constructive, of the existence of the defect in the tool or appliance.
Hope v. Railroad Co., 98 Miss. 822; Miss. Central Railroad Co. v. Bennett, 111 Miss. 163; Corpus Juris, section 1279, page 1079.
But we are not dealing with an action between a master and a servant. We are dealing with the case of an invitee to whom the obligation of the owner of the premises was not at all the same as is the obligation of a master to a servant.
Press v. Penny, 18 A.L.R. 794; Arizona Binghampton Copper Co. v. Dickson, 44 A.L.R. 881; Warner v. Synnes, 44 A.L.T. 904; 44 A.L.R. 1014; Baddeley v. Shea, 114 Cal. 1, 33 L.R.A. 747, 55 Am. St. Rep. 56, 45 P. 990; Boner v. Eastern Michigan Power Co., 193 Mich. 629, 160 N.W. 453; Colleoni v. Delaware H. Co., 274 Pa. 319, 118 A. 248; Doughterty v. D.C. Weeks Son, 126 App. Div. 786, 111 N.Y. Supp. 218; Brady v. New York, 149 App. Div. 820, 134 N.Y. Supp. 305; Weideman v. Tacoma R. Motor Co., 7 Wn. 517, 35 P. 414; 29 Am. Eng. Encyc. of Law, pages 78, 86, 87, 88, 95 and 96.
Where defendant hired plaintiff and then put him to work under the control of a contractor engaged in placing machinery in defendant's mill, defendant paying plaintiff and charging his wages to the contractor, whose contract bound him to pay all expenses of putting in the machinery, plaintiff could not recover of defendant, as his servant, for injuries received owing to insufficient lighting of the mill.
Dallas Mfg. Co. v. Townes, 41 So. 988. Mize, Thompson Mize, of Gulfport, for appellees.
The law is that the owner of premises who retains control thereof and employs an independent contractor to perform some work on the premises owes him the duty to exercise reasonable care to furnish him and employees a reasonably safe place in which to work and to warn him of all dangers of which he knows or which he ought to have known of by the exercise of reasonable diligence of inspection.
Nowotny v. St. Louis Brewing Assn., 171 S.W. 941; Kaess v. Tivoli Brewing Co., 111 N.W. 106; Heath v. Calkins, 122 N.W. 84; McDonnell v. Central Drug Co., 136 N.W. 382; Sager v. Solvay Process Co., 129 N.Y. App. Div. 813; McIntyre v. Pfaudler Vacuum Fermentation Co., 95 N.W. 527; Springer v. Ford, 88 Ill. App. Ct. Rep. 529; Wilkinson v. Evans, 34 Pa. Super. 472; Feeney v. New York Waist House, 105 Conn. 647, 136 A. 554; Grey v. R.B. L.R. Co., 159 N.E. 441; Harvey v. Malchtig, 239 P. 78; McDonnell v. Central Drug Co., 125 N.W. 546; Spry Lbr. Co. v. Dugan, 80 Ill. App. Div. 394, 182 Ill. 218, 54 N.E. 1002; Connolly v. Des Moines Investment Co., 105 N.W. 400; McIntyre v. Detroit Safe Co., 89 N.W. 39; Fulton Ice Coal Co. v. Pece, 116 S.E. 57; Samuelson v. Cleveland Iron Mining Co., 13 N.W. 499; Brannock v. Elmore, 21 S.W. 451; Ryan v. Woodbury Granite Co., 266 Pa. 105; Hall v. Henry Thayer Co., 113 N.E. 644; Lucas v. Walker, 134 P. 374; Gagnon v. St. Marie Light Power Co., 141 P. 88; Watkins v. Gabriel Steel Co., 245 N.W. 801; Ellington v. Ricks, 102 S.E. 510; Ogan v. Missouri Pac. R.R., 126 S.W. 191; Murphy v. Core Joint Concrete Pipe Co., 164 A. 262; Ridenour v. International Harvester Co., 205 S.W. 881; Sutton v. Lerner Stores Corp., 162 A. 645; Riley v. Jersey Leather Co., 126 A. 457; Hicks v. Peninsula Lbr. Co., 220 P. 133.
This rule is frequently applied in the case of one who, although not directly employed by the owner of premises, enters thereon by virtue of his employment to perform work which is for the benefit of the owner or in which he has an interest. So a property owner who engaged an independent contractor to perform work on the premises owes to an employee of such independent contractor the same duty that he would owe to an employee of his own in the same situation, and is therefore under a duty to furnish to such employee a safe place to work.
45 C.J., secs. 220-221, sec. 227, page 818; sec. 264, page 846; sec. 292, page 868; sec. 295, page 869; sec. 298, page 873.
More specifically, an owner or occupant of lands or buildings who knows or in the exercise of reasonable care should know, of their dangerous and unsafe condition and who invites others to enter upon the property owes to such invitees a duty to warn them of the danger where the peril is hidden, latent or concealed or the invitees are without knowledge thereof.
45 C.J., sec. 303, page 875; Fladin v. Verdi Lbr. Co., 37 Nevada, 294, 142 P. 531; Haulihan v. Sulzberger Sons Co., 282 Ill. 76, 188 N.E. 429; Chamberlain v. Lee, 247 S.W. 415; Coughtry v. Globe Woolen Co., 15 Am. Rep. 387, 56 N.Y. 124; Johnson v. Spear, 15 Am. St. Rep. 298, 76 Mich. 139; Bright, Admx., v. Barnett Record Co., 26 L.R.A. 524; Pauckner v. Waken, 14 L.R.A. (N.S.) 1118; U.S. Cast Iron Pipe Co. v. Fuller, 102 So. 25; Shelby Iron Co. v. Cole, 95 So. 47; Richards v. Consolidated Lighting Co., 99 A. 241; Gray v. Boston, etc., R.R. Co., 129 N.E. 67; Pittingill v. Porter, 107 N.E. 269; Cirmmins v. Booth, 88 N.E. 449, 132 Am. St. Rep. 468; Sullivan v. New Bedford Gas Co., 78 N.E. 1048; McCullen v. Fishel Bros. Amusement Co., 199 S.W. 439; 3 Sherman Redfield on Negligence (6 Ed.), secs. 692-693; 3 Cooley on Torts (4 Ed.), secs. 440, 442, 500; Khederian v. Conner, 159 N.E. 443; U.S. Cast Iron Co. v. Sullivan, 3 F.2d 794; Hercules Powder Co. v. Williamson, 110 So. 244; American Sand Gravel Co. v. Reeves, 151 So. 477; Adams v. Grand Rapids et al., 19 Ann. Cas. 1152; Hercules Powder Co. v. Wolfe, 110 So. 842; Murray v. Natchez Drug Co., 100 Miss. 260; McTighe v. Johnson, 114 Miss. 862; Whitecarver v. Miss. Power Co. (Dist. Court Miss.), Adv. Sheet Fed. Supplement, April 9, 1934, 948; Whitecarver v. Miss. Power Co., Adv. Sheet Fed. Rep., April 2, 1934 (C.C.A.), 928.
An expert may testify as to whether or not a particular installation is properly made.
Dodson v. Lbr. Co., 80 So. 205; A. V. Railroad v. Groom, 97 Miss. 206; Dirks Lbr. Co. v. Brown, 19 F.2d 732; 21 Am. Eng. Encyc. of Law, 487; Yarn v. Fort Dodge Electric Co., 31 Fed. 2d 717; A. V.R.R. v. Fountain, 111 So. 153.
It is immaterial as to whether or not the relationship of master and servant existed or that of independent contractor as the duty is the same under the authorities hereinbefore cited, and of course the duty of the master to furnish a reasonably safe place to work and make reasonable inspections by competent employees is well settled in Mississippi.
Finkbine Lumber Co. v. Cunningham, 101 Miss. 292; Miss. Power Co. v. Smith, 153 So. 376.
Argued orally by W.L. Guice and J.H. Thompson, for appellant, and by S.C. Mize, for appellee.
This is an appeal from a judgment for damages for the death of the appellee's intestate. The case was tried twice, resulting each time in judgment for the appellees; the first judgment being set aside by the court below. There is both a direct and a cross-appeal; the purpose of the cross-appeal being to have the first judgment reinstated, it being for a larger amount than the second. On the direct appeal, the appellant's main contention, and if it disappears its others are without merit, is that the court below should have granted its request for a directed verdict.
The appellant owns and operates a creamery, a refrigerating plant being a part thereof. A part of its refrigeration outfit consists of an ammonia tank. This tank was on the second floor of the building in which the machinery was housed, and was securely attached to a heavy timber on the floor thereof. Projecting from this ammonia tank and about eighteen inches above the floor was a metal pipe, of either wrought iron or steel, three-quarters of an inch in diameter and twelve inches long; attached thereto at the end thereof was a quite heavy valve, which together with its necessary appurtenances was seven and a quarter inches long, making the total length of the pipe and the valve nineteen and a quarter inches. The building in which the plant was housed was a substantial brick structure. The machinery which operated the plant, and an electric motor which furnished its power, were on the first floor on a substantial concrete foundation.
Intending to move its plant to another location, the appellant employed an independent contractor to move some of the machinery. In order to move a portion of this machinery, it became necessary for the contractor to attach some heavy timbers to the ceiling of the second floor of the building for the support of a block and tackle. While attaching these timbers to the ceiling, the workmen necessarily had to be within a few feet of the ammonia tank. As they were lifting one of the timbers, the pipe projecting from the tank broke, fell off, and the ammonia escaped from the tank, causing the death of the appellee's intestate, who was one of the contractor's workmen. The building was lighted, the pipe projecting from the ammonia tank was in plain view, and the evidence negatives its having been struck by anyone at the time it broke, or that any timber or tool used by the workmen fell thereon. Its breaking is accounted for by the appellees on this theory: A number of experts testified that it was common scientific knowledge that metal when subject to vibrations will crystallize at the point of principal vibration, become brittle there, and break; that the pipe, at its point of breaking, showed such crystallization, and that the heavy valve at the end thereof was sufficient to cause it to break of its own weight; that the pipe, from an engineering standpoint, was improperly installed; that due care required that a support should have been placed under it at or near the end thereof, which support would have been inexpensive, would have lessened the pipe's vibration and prevented its breaking of its own weight in event crystallization occurred, all of which would have been known to any competent engineer.
There was also evidence to the effect that there would be some vibration incident to the operation of the appellant's plant, and, in addition, that the occupants of nearby dwellings were accustomed to feel vibrations from the passing of trains on a nearby railroad, and of heavy trucks along the street on which the appellant's plant abuts. There was evidence for the appellant that no vibrations from trains or trucks were perceptible in its building, and that no vibrations at all were felt by the occupants thereof, that metal did not crystallize from vibrations, and that the pipe was attached to the ammonia tank in the usual and ordinary way. The tank had been in use for about four years, was the best that could be purchased at the time; the pipe was attached to the tank when received from the factory just as it was when it broke, except that, when received by the appellant, there was a water gauge a few inches above the pipe, which gauge extended from the tank to a point immediately above the valve, and was attached to the valve by a perpendicular fixture. This gauge had been removed. Had it been allowed to remain, according to the appellee, it would have tended to lessen any vibration of the pipe which broke.
The contractor and his workmen were on the appellant's premises by its invitation for the accomplishment of a purpose for its benefit. Consequently, it owed them the duty of exercising reasonable care to prevent their being injured by any defect in the premises or its machinery.
The appellant's machinery, including this pipe, was frequently inspected, but the defect in the pipe, if such there was, was not discoverable by an examination of its surface, and according to the appellant the breaking of the pipe because of crystallization, if such in fact occurred, was an unforeseeable event, and therefore the appellant is not liable therefor. This is true, unless it is a well-known scientific fact that such crystallization resulting in a breaking of the pipe might occur, and such was the appellees' evidence. Characteristics of ammonia are such that exposure thereto is imminently dangerous to human life, and the appellant was charged with the duty of using such reasonable precautions against its escaping from the tank as well-known scientific facts afforded. As said by the Missouri court of appeals in Hysell v. Swift Co., 78 Mo. App. 39: "It may be laid down as a legal principle, that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence. If an occupation attended with danger can be prosecuted by proper precautions without fatal results, such precautions must be taken by the promoters of the pursuit or employers of laborers thereon."
If the evidence for the appellees be true, the appellant and its agent in charge of the plant either knew of the danger of the pipe breaking because of crystallization, or were negligent in not knowing it.
On the evidence the liability vel non of the appellant was for the determination of the jury.
The evidence on both of the trials was practically the same, and the appellant's brief makes no specific reference to the setting aside of the judgment in the first trial, and no reason appears in justification therefor.
The judgment of the court below would be affirmed on the direct appeal, but, on the cross-appeal, it must be reversed, and the former judgment reinstated. So ordered.