Summary
In Brown v. Coley, 168 Miss. 778, 152 So. 61, 62, a precisely similar case to this, the careless pouring of gasoline, the Supreme Court of Mississippi has held that an employer does not have to publish rules against negligent uses of a simple nature like this; that it is entitled to assume that the employee will use ordinary care in handling appliances; and that if the injury is the result of failure to do so, the master is not liable.
Summary of this case from Proctor Gamble Defense Corporation v. BeanOpinion
No. 30902.
January 8, 1934.
1. MASTER AND SERVANT.
Concrete mixer laborer, who received burns when he poured gasoline from bucket into small opening of tank without using funnel provided by employer while motor was running, could not bring action for burns under "safe place to work doctrine" which imposes liability on master not for danger but for negligence.
2. MASTER AND SERVANT.
Concrete mixer laborer who received burns when he poured gasoline from bucket into small opening of tank without using funnel provided by employer while motor was running, could not maintain action for burns on ground that employer failed to use reasonable care to furnish reasonably safe tools and appliances.
3. MASTER AND SERVANT.
When master furnishes reasonably safe location for doing of particular work and installs generally approved equipment in adequate repair suitable for place and work, and furnishes appliances easily to be used in connection therewith, he has performed his duty in so far as concerns doctrine of safe place to work and of safe appliances, notwithstanding there still be danger in work.
4. MASTER AND SERVANT.
Where master provides safe means for doing certain work, and servant elects to use different and dangerous methods, he cannot recover, since such acts become negligence of servant and not of master.
5. MASTER AND SERVANT.
When master has furnished suitable place for work, suitable equipment, and reasonably safe appliances, then if servant is mature and experienced in character of work being done, obligation to take care of himself as to all obvious dangers is on servant, and duty of master exists only as to nonobvious dangers.
6. MASTER AND SERVANT.
Where servant is mature and experienced in character of work being done as respects obvious dangers arising in details of work, master is liable only when he fails to furnish proper instrumentalities in proper repair which if used will reasonably obviate danger, or where he affirmatively orders servant, at time of injury or at previous times, to omit safe way and to perform work in unsafe manner.
7. MASTER AND SERVANT.
Where master expressly orders servant to omit safe method and to do work in dangerous way, master is estopped to assert that duty to avoid obvious danger was on servant, unless danger is so imminent that no person of ordinary prudence should encounter it, even under orders.
8. MASTER AND SERVANT.
Assumed authority of fellow servant who ordered laborer to pour gasoline from bucket into tank of concrete mixer without using funnel provided by employer while motor was running held not to bind employer.
9. MASTER AND SERVANT.
Employer held not liable for burns sustained by employee in pouring gasoline from bucket into tank of concrete mixer without using funnel provided by employer on ground that he saw or was near enough to have seen pouring.
10. MASTER AND SERVANT.
Rules of law respecting obligation of master to put into operation adequate method or system for safety of his servants are substantially same as those dealing with obligation to promulgate and enforce regulations for maintenance of safe method or system, which obligation arises only where work is dangerous and complex, and conditions which may arise are uncertain and obscure.
11. MASTER AND SERVANT.
Where work is simple in character and free from complexities and where danger is apparent, master is not required to promulgate rules for maintenance of safe method or system.
12. MASTER AND SERVANT.
Attempt by concrete mixer laborer without use of funnel as provided by employer to pour gasoline out of bucket into small hole in tank, near electrical equipment of engine while running was obvious danger and not obscure or complex so as to require employer to promulgate regulations for maintenance of safe method.
APPEAL from Circuit Court of Adams County.
Engle Laub, of Natchez, for appellant.
Nowhere in the record is there any substantial evidence of any negligence on the part of appellant Brown nor even any suggestion of any negligence on his part. The gasoline motor he employed was not defective in any way and was simply an ordinary gasoline motor.
The peremptory instruction should have been given as asked.
Natchez Cotton Mills Co. v. McLain, 33 So. 723; Rose v. Pace, 109 So. 861; Ovett Land Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499.
This court has reiterated the general rule that where an employee adopts a highly dangerous method of performing a duty or work when a safe method was equally available, then the negligence of the employee is the proximate and sole cause of the injury.
Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Key Number Digest, "Master and Servant" Key No. 238 (3) and Key No. 247 (4); 39 C.J., "Master and Servant," p. 766, sec. 966.
The law is clear that in any case where the proven facts give equal support to each of two inconsistent inferences, judgment must be rendered against party on whom rests the burden of sustaining one of such inferences as against the other.
Liggett Myers Tobacco Co. v. De Parcq, 66 Fed. Rep. 2d 678; United States Fidelity Guaranty Co. v. Des Moines Nat. Bank (C.C.A. 8), 145 Fed. 273; Eggen v. United States (C.C.A. 8), 58 F.2d 616; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 350, 76 L.Ed. 699; Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Smith v. First National Bank in Westfield, 99 Mass. 605, 97 Am. Dec. 59.
Kennedy Geisenberger, of Natchez, for appellee.
In the instant case it is shown that the master permitted as a custom the refueling of a motor with highly inflammable and explosive substance while the motor was running, and that he failed to furnish safe means whereby the fuel could be poured into the engine tank but allowed the same to be done by use of an eight gallon lard can with the rim mashed in, and while a funnel was sometimes provided, it was not at the job the day the appellee was injured, and in conformity with the custom prevailing he did not lose time looking for it and running the risk of having the engine run down and delay operations.
The question of whether or not the master was negligent was one for the jury to pass upon and decide.
Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Wilbe Lbr. Co. v. Carson, 140 So. 680; Mississippi Utilities Co. v. Smith, 145 So. 896; Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792.
Negligence, if any, of the master being shown, the employee by virtue of section 513, Code of 1930, assumed no risks of his employment.
The fact that the motor being operated by the appellant was not defective other than being hard to start would not serve to relieve the master of liability.
Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Labatt's Master and Servant (2 Ed.), sec. 1110; White v. Louisville, N.O. T. Ry. Co., 16 So. 248; 39 C.J., Master and Servant, sec. 1103; Ulm v. McKeesport Tin Plate Co., 263 P. 327, 106 A. 639.
Argued orally by Charles F. Engle, for appellant.
Appellant was engaged in the building of a concrete bridge, and appellee was employed by appellant as a laborer in and about the operation of a concrete mixer. The water to use in the concrete mixer was pumped from the adjacent creek by means of a small gasoline engine. Because of the nature of the work and the temporary character of the location of the machinery necessary to be used therein, this gasoline engine was of a compact construction, the gasoline tank thereof being in close proximity to the flywheel, the electrical sparking apparatus, and the other essential parts of the motor. The tank was filled by pouring gasoline therein through a small opening about one and one-half inches in diameter. The proper way to pour in gasoline was by the use of a funnel, which appellant had furnished for that purpose, and to do otherwise would waste the gasoline, and would create a danger from the likelihood that the wasted gasoline would become ignited by the electrical spark.
On the occasion in question appellee, at the request or order of one Baker, a fellow servant whose duty it was to assist in the operation and care of the gasoline engine, attempted to fill the tank by pouring gasoline from a bucket into the small opening in the tank without the use of the funnel, and while the motor was running. Some of the gasoline wasted and became ignited. The fire was thus communicated to the bucket, and in the effort to escape therefrom appellee was severely burned.
The main contention of appellee, as shown by his declaration and by the only instruction requested by him on the issue of liability, is that the master had failed to furnish him with a reasonably safe place in which, and with reasonably safe appliances with which, to work. The proof is insufficient, in fact there is no proof, to bring this case within the safe place to work doctrine. In Seifferman v. Leach, 161 Miss. 853, 858, 138 So. 563, 564, it was said: "The ground of liability in respect to unsafe places to work is not danger, but negligence. The rule is one of reason. There are many places in and around machinery which are dangerous and cannot be made otherwise. Those who work there, work in unsafe places, but this does not make the master liable as for furnishing an unsafe place in which to work." If the rule were otherwise, employees working at or near exposed saws in a sawmill would be entitled to recover for that reason alone, because when so working they would be in places of danger. Such is not the rule, as see, for instance, Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98. And upon similar principle, the case cannot be sustained on the alleged ground that the master failed to use reasonable care to furnish the servant with reasonably safe tools and appliances.
The true rule in the respects mentioned is that when the master has taken reasonable care to furnish a reasonably suitable and safe location for the doing of the particular work and has there installed the ordinary and generally approved equipment, suitable and proper for the place and for the work of the kind there being done and this equipment is in adequate repair, and he has furnished the appliances easily to be used in connection therewith which when used will render the operation as safe as may reasonably be done, considering the nature of the work and the character of the machinery appropriate thereto, the master has performed his duty, in so far as concerns the doctrine of a safe place to work and of safe appliances with which to work, although there still be danger in the work.
There is nothing in the evidence in this case which asserts that the location of the place was dangerous or that the equipment furnished by the master was other than the ordinary and approved equipment, proper and suitable for the place and for the work then and there being done, no evidence that it was out of repair, and it was undisputed that the master had furnished the funnel to be used in filling the tank, that the servant knew of this, and that if the servant had used this funnel the operation would have been reasonably safe. "It is well settled that if the master provide a safe means or method for doing certain work, and the servant elects to use different and dangerous methods, he cannot recover, for the reason that such acts become the negligence of the servant and not that of the master." Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 715, 118 So. 441, 442.
It is urged, however, that although a funnel was provided for doing the work of filling the tank, the master knowingly permitted his servants to do the work without the use of the funnel, and that the master is therefore liable for permitting the prevalence of a dangerous method or system. When the master has furnished a suitable place in which to do the work and the ordinary, proper, and suitable equipment and appliances kept in good order with which to work, then as to any further duty owed by him, whether the inquiry be in respect to the adoption of a system or method, the promulgation and enforcement of rules and regulations for the maintenance of a reasonably safe method or system, or in regard to warning his servant of dangers, the answers to the inquiry are found to be grouped, in general, under two principal and controlling heads, as follows: If the servant is a mature and sensible man of some experience in the character of work there being done, the obligation to look after and to take care of himself as to all obvious or manifest dangers in the details of the work is upon the servant, and the duty of the master exists and is operative only as to nonobvious dangers. In regard to such a servant and in respect to obvious or manifest dangers arising in the details of the work, the master is liable only when he fails to furnish the usual and proper instrumentalities in proper repair which if used, and properly used, will to a reasonable extent obviate the danger, or where he affirmatively orders the servant to omit the safe way and to perform the work in the unsafe manner, the order of the master so to do being given either at the particular time, or at previous times, and thence the improper and unsafe method has been pursued in virtue or by the force of the previous affirmative orders. If he fails to furnish the usual and customary instrumentalities, the master has not supplied the conditions which will enable the servant to take care of himself, and if the master expressly and affirmatively order the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant and, to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders.
There is no evidence here that the dangerous act done by the servant was at the present or previous orders of the master. The testimony of the master was that he had given orders not to pour the gasoline without the funnel, to which appellee replied only that he had never heard of such orders, and that, if given, they were habitually disregarded with the master's knowledge. Appellee testified that he poured the gasoline as he did at the present order of Baker. But Baker was only a fellow servant as appellee himself admits, and Baker's assumed authority to give the order and the voluntary recognition of that order by appellee does not bind the master, as was held upon the precise point in Gulfport M. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340. See, also, Natchez Co. v. McLain (Miss.), 33 So. 723. And as to the contention by the servant in this case that the master either saw him pouring the gasoline without the funnel or was near enough to have seen him, and that the master should be held liable because he did not interfere, we say only, as has in effect already been said, and in similar effect has been said in so many other cases, that when the master has met the conditions aforementioned, he is not the obligatory guardian of the servant as to ordinary and obvious dangers but the servant must be his own guardian.
The rules of law in respect to the obligation of the master to adopt and put into operation an adequate method or system for the safety of his servants are, in all substantial particulars, the same as those dealing with his obligation as to the promulgation and enforcement of rules and regulations for the maintenance of a safe method or system. And that obligation has been expressly defined by this court in Tatum v. Crabtree, 130 Miss. 462, 94 So. 449, 451, as follows: "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. If the work is simple in character and free from complexities, the master is under no obligation to adopt rules. In other words, where the danger is apparent to all, and the duty of the servants to avoid such danger is manifest, no rules are required." See, also, Reed v. Ridout's Ambulance, 212 Ala. 428, 433, 102 So. 906.
The attempt of the servant without the use of a funnel to pour gasoline out of a bucket into a small hole in the tank, near the electrical equipment of the engine while the engine was running was an act which, to any sensible, adult person acquainted with the volatile and highly inflammatory character of gasoline, would be known to be a dangerous method, it would be obvious. The servant admits that he knew this; and it seems to us that it is such a fact as would not involve any complexity or uncertainty or obscurity to a person who had ever worked around gasoline motors as the servant admits he had done, not only in this service but in previous experience. Moreover, the handling and use of gasoline have become so general, so much a part of the daily observation and experience of all adult persons, so much a matter of conscious knowledge to all of mature age who will open their eyes, that there could be no well grounded basis of justice now to hold that its use, in the manner shown in this case, involves that which is either complex or uncertain or obscure. It would be going too far, as we think, to hold that there is any complexity in the pouring of gasoline out of a bucket through a funnel, or without a funnel, into a hole in a tank, or that the conditions which would arise therefrom so far as concerns the danger thereof would be uncertain or obscure, for those terms refer to situations or conditions wherein it is not to be fairly assumed that the servant knew or understood or appreciated the likelihood of the danger in doing what he did, the reference is to nonobvious dangers. The case is therefore controlled by the principles laid down and discussed and illustrated in the Tatum v. Crabtree Case, supra. See, also, Yazoo M.V. Railroad Co. v. Downs, 109 Miss. 140, 67 So. 962; Crossett Lbr. Co. v. Land, 121 Miss. 834, 849, 84 So. 15; Dobbins v. Lookout Co., 133 Miss. 248, 97 So. 546; Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 122, 115 So. 191, and the recent case decided by Division A, Eastman Gardiner Hardwood Co. v. Hugh Chatham, 151 So. 556, where the applicable principles are very clearly and firmly enunciated.
Reversed and decree here for appellant.