Summary
In Curry Turner Construction Co., Inc. et al. v. Bryan, 184 Miss. 44, 185 So. 256 (1939) it was held that reasonable latitude should be allowed counsel in questioning prospective jurors.
Summary of this case from Oden Construction Company v. McPhailOpinion
No. 33436.
January 2, 1939. Suggestion of Error Overruled January 30, 1939.
1. MASTER AND SERVANT.
A road construction company's tractor operator, injured by explosion of gasoline, mistakenly used by him instead of kerosene in starting fire to heat company's grease guns and warm its servants before going to work, was not precluded from recovering damages on ground that any negligence proximately contributing to injury was that of fellow servants acting as foremen on the job, where evidence showed that they were not fellow servants with injured employee and his coservants, but had right to and did direct and control their services for master.
2. MASTER AND SERVANT.
A master must use reasonable care to furnish his servants reasonably safe place to work, reasonably safe instrumentalities to work with, and reasonably safe methods and rules for work.
3. MASTER AND SERVANT.
To relieve master from liability for injury to servant under fellow servant rule, fellow servant's negligence must have been sole cause of injury and not commingled or combined with negligence of master or his representative.
4. MASTER AND SERVANT.
Where last proximate cause of servant's injury was fellow servant's negligence, proximately caused by that of master, fellow servant rule is inapplicable, and both fellow servant and master are jointly and severally liable to injured servant.
5. MASTER AND SERVANT.
It was construction company's duty to prescribe reasonably safe rules and methods for storage and handling of gasoline and kerosene, used in work of constructing highway, in order to prevent injuries to its servants.
6. MASTER AND SERVANT.
Whether road construction company prescribed reasonably safe rules and methods for storage and handling of gasoline and kerosene, used in work of constructing highway, and reasonable care required that separate places of storage be provided for each or that different and more pronounced methods of distinguishing them than tying of tops of gasoline can and its spout with string on upper part of can be prescribed, held for jury under evidence in action for injuries to company's tractor operator by explosion of gasoline mistakenly used instead of kerosene by him in starting fire, especially in view of comparative negligence statute and statute abolishing assumption of risks doctrine (Code 1930, section 511, 513).
7. MASTER AND SERVANT.
A road contruction company's servant, injured by explosion of gasoline mistakenly used by him instead of kerosene in starting fire to warm company's servants and heat its grease guns a few minutes before work day began, was not engaged about his own affairs, but serving master, so as to authorize recovery of damages from latter.
8. DAMAGES.
Evidence of doctors' and hospital bills, necessarily incurred by injured employee, was admissible over employer's general objection in such employee's action for damages, though such elements of damages were not claimed in declaration, as defendants' remedy was affidavit that bill of particulars was necessary to their defense (Code 1930, section 555).
9. APPEAL AND ERROR.
A statement by plaintiff's counsel on voir dire examination of jury in personal injury suit that suit was for large amount and his questions to jurors as to whether it would embarrass them to return verdict for large sum were not harmful to defendants, whose counsel could have put converse of such proposition to jury.
APPEAL from the circuit court of Prentiss county; HON. THOS. H. JOHNSTON, Judge.
J. Sidney Finch, of Booneville, and Leftwich Tubb, of Aberdeen, for appellants.
It was error in the court below to overrule the motion of appellants, at the close of the trial, for a directed verdict.
If the exploded can contained gasoline or a mixture of kerosene and gasoline, appellee is himself responsible for it.
If there was an interchange of gasoline and kerosene in these cans, the mistake was made by the fellow servants of appellee for whose negligence appellants are not responsible.
The master is not liable for injuries resulting from acts of negligence of a fellow servant, a subforeman or employees of the subforeman's crew or gang who actually labors with the crew in cases where the master himself is in direct control and supervision of the work, or in cases where the master employs a superior superintendent or foreman and who has designated a subforeman to have charge of a crew or gang of laborers, and the subforeman himself actually labors with his crew. In such cases the subforeman and the members of his crew are fellow servants and they are fellow servants of other employees of the master engaged in the same line of work. The master is not liable for acts of negligence of any of them.
Petroleum Iron Works v. Bailey, 86 So. 644, 124 Miss. 11; Givens v. Southern R. Co., 49 So. 180, 94 Miss. 830, 22 L.R.A. (N.S.) 971; Bradford Construction Co. v. Heflin, 42 So. 174, 88 Miss. 314, 12 L.R.A. (N.S.) 1040, 8 Ann. Cas. 1077; Hercules Powder Co. v. Hammack, 110 So. 676, 145 Miss. 304; Cybur Lbr. Co. v. Erkhart, 79 So. 235, 118 Miss. 401; Barron Motor Co. v. Bass, 150 So. 202, 167 Miss. 786; Harper v. Public Service Corp. of Miss., 154 So. 206, 170 Miss. 39; Buckeye Cotton Oil Co. v. McMorris, 158 So. 799, 172 Miss. 99.
At the time of the alleged accident and injury appellee was not engaged within the scope of his employment, he had gone entirely outside of his line of duty in making the fire. The contractor had provided other servants to perform the duty of making and maintaining fires. Appellants are not responsible for the injury.
Gulfport Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Y. M.V.R. Co. v. Slaughter, 92 Miss. 289, 45 So. 872; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 78 So. 776; Van Scoter v. Megginson, 144 Miss. 510, 110 So. 247; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179.
Appellee in making the fire wholly disregarded his own safety in the use of gasoline or kerosene for that purpose. These products were not supplied for such use, and the slightest care and prudence on the part of appellee would have prevented the accident and injury.
This principle of law is well established by the decisions: If the master provides a safe way to do the work, and the servant adopts an unsafe method in performing the work, the master is not liable.
I.C.R. Co. v. Daniels, 73 Miss. 258; Morehead v. Y. M.V.R. Co., 84 Miss. 112; Ovett Land Lbr. Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 118 Miss. 105, 78 So. 776; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Brown v. Coley, 168 Miss. 778, 152 So. 61; Favre, Admr. v. L. N. Ry. Co., 180 Miss. 843, 178 So. 327; Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98.
Appellant contractor in handling gasoline and kerosene and other petroleum products on the job followed strictly the universal custom in general use throughout the country. These products are of such common use and are so well known that all persons of reasonable intelligence are familiar with their use and qualities. There is nothing complex or uncertain in their use and therefore rules and regulations are not necessary.
39 C.J., sec. 586; Hammontree v. Cobb, 168 Miss. 844; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Y. M.V.R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191; Crossett Lbr. Co. v. Land, 121 Miss. 834, 84 So. 15; Dobbins v. Lookout Co., 133 Miss. 248, 97 So. 546; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Anderson Tulley Co. v. Goddin, 174 Miss. 162, 163 So. 536; Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Shell Petroleum Co. v. Kennedy, 167 Miss. 305, 141 So. 335; Davis v. Price, 133 Miss. 236, 97 So. 557; Magnolia Stores Co. v. Croft, 161 Miss. 756, 138 So. 405; Natchez, C. M.R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Miller v. Teche Lines, Inc., 175 Miss. 351, 167 So. 52; Hahn v. Owen, 176 Miss. 296, 168 So. 622.
The first assignment complains what when the jury was being empaneled, the court permitted counsel for appellee to announce to the jury: "That this is a suit for a large amount; a large sum is being sued for," and to request the jury each of them to know whether or not if the proof showed that the appellee had been damaged in a large amount it would embarrass them to return a verdict for a large sum.
It is manifest that in doing this counsel was in effect tuning up the jury, impressing upon their minds the enormity of the case and to prepare them for a large verdict at the end of it.
Assignment No. 2 deals with the testimony of Dr. Cunningham and others to the effect that plaintiff had been confined in the hospital for approximately a year, and was required to have an attendant at $4 a day and board, the board for the attendant being $1 a day beside the hospital expenses. And, after the plaintiff left the hospital, an expenditure of this sum would be required daily for his care and maintenance and this for an indefinite period. The declaration contained no allegation as to these sums for medical treatment and hospital bills and nurses and other expenditure, and on this ground appellant objected to this class of testimony.
Chapman v. Powers Construction Co., 150 Miss. 687, 116 So. 609; Greyhound Lines, Inc. v. Silver, 155 Miss. 765, 125 So. 340.
Jas. A. Cunningham, Frank W. Cunningham, and Donald M. Franks, all of Booneville, for appellee.
Appellee, hereinafter called plaintiff, plants his case on that just and unerring principle of law that it is the nondelegable duty of one handling explosives, especially a master, and especially dangerous explosives handled or kept in a way to be disguised or hidden and likely to do harm to others to exercise all reasonable care to safeguard such hidden danger or to fully inform others of the danger who are likely in any way for any cause to come within the danger zone, especially either invitees or employees, and such a situation demands a very high degree of care, that high degree which is in proportion to the danger.
Evans v. Brown, 106 So. 281; Huey-McTighe v. Johnson, 75 So. 600; Hamilton v. Gano, 76 So. 633; Hercules Powder Co. v. Williamson, 110 So. 244; Golden Sawmill Co. v. Jourdan, 127 So. 287; Standard Oil Co. of Ky. v. Evans, 122 So. 735; 25 C.J. 185, secs. 7 and 8; 11 R.C.L. 662, sec. 14, and sec. 16.
A number of the authorities cited in the above division of this brief cover explosive dangers to children whose curiosity to pry into such things and become injured should have been anticipated because of their incapacity to discover the dangers involved, but the same high standard of care is required for the protection of adults under the above authorities where the danger is in any way hidden and known to the master but not known to the employee. There is no difference in the application of this due care to adults where the danger is hidden and where both and/or either the duties of the employee or the practice on the premises are such as to likely bring an adult person within the danger zone of such hidden and disguised explosive as well as any other hidden danger, and is dealt with in the law under hidden dangers.
Seafood Co. v. Alvis, 77 So. 856; Masonite Corp. v. Lockridge, 140 So. 223; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691; 18 R.C.L. 567; 39 C.J. 486, sec. 602.
On the question of the defendant's knowledge of the dangerous character of this gasoline and of that cloud of fumes that it constantly gives off so easily ignited and so terrible in its explosive qualities, the defendants are chargeable with knowledge thereof and cannot escape responsibility of knowledge of such properties.
American Sand Gravel Co. v. Reeves, 151 So. 477; Allen Gravel Co. v. Curtis, 161 So. 670; Standard Oil Co. v. Evans, 122 So. 735; O'Hara v. Nelson, 63 A. 836; Buchholz v. A.B.A. Independent Oil Co., 33 A.L.R. 769; Gust v. Muskegon Oil Co., 33 A.L.R. 772.
The jury were altogether justified in their province of passing on the weight of the evidence that their foreman McRae not only knew it but ordered the gas brought on the job and saw and knew that it was in the kerosene can and after this full observation and knowledge he ordered it placed in the toolbox. It is our position that this dangerous explosive to be used in the master's business took its place with ways, means, and appliances and that it being hidden under the guise of innocent kerosene shadowed and also made dangerous the plaintiff's place where he was required to work in the making of a fire, and therefore involved also the question of the master's care to provide a reasonably safe place for plaintiff to work and that it also involved a dangerous method, all of which were and are nondelegable duties of the master.
Oil Mill Co. v. Ellis, 17 So. 214; Edwards v. Haynes-Walker Lbr. Co., 74 So. 284; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; McLemore v. Rogers, 152 So. 882; Brown v. Cooley, 152 So. 61; Norton v. Standard Oil Co., 171 So. 691; Eagle Cotton Oil Co. v. Pickett, 166 So. 764; Gulf Ref. Co. v. Ferrell, 147 So. 476; Murray Chevrolet Co. v. Cotton, 152 So. 657; Albert v. Doullut Ewin, Inc., 178 So. 312.
There is no principle of law better settled than this, that a master is chargeable with the nondelegable duty to his agents and employees to exercise all reasonable care to safeguard and protect and to warn and instruct his agents and employees of imminent dangers on the premises or involved in the ways, means, appliances, and methods of work.
Seafood Co. v. Alvis, 77 So. 857; Masonite Corp. v. Lockridge, 140 So. 223; Simmons v. Doullut Ewin, Inc., 145 So. 708; 18 R.C.L., sections 76 and 77; 3 Labatt, Master Servant (2 Ed.), sec. 975; 2 Restatement of the Law, Agency, sec. 491; Norton v. Standard Oil Co., 171 So. 691; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; American Sand Gravel Co. v. Reeves, 151 So. 477; Scott Burr Stores Corp. v. Morrow, 180 So. 741; Ross v. Louisville N.R. Co., 172 So. 752.
Certainly the master cannot claim that he did not know the contents of that kerosene can would be applied to the use of lighting lanterns or replenishing lanterns. With that knowledge the defendants were just as much liable as if the same knowledge had applied to the dangers to Baremore Bryan for the reason that under the universally accepted rules of negligence the wrongdoer is guilty of actionable negligence if as a reasonable person he did or by the exercise of reasonable care should have anticipated that some harm would proximately result from the act to some person in some way, and is not required before liability attaches that he shall anticipate a particular harm to a particular person in a particular way, and gasoline passed to this lantern would likely cause an explosion in lighting or replenishing the lanterns.
45 C.J., sec. 48; Cumberland Tel. Co. v. Woodham, 54 So. 890; Tri-State Transit Co. v. Martin, 179 So. 349; Restatement of the Law on Torts, sec. 435; Majors v. Okolona-Houston-Calhoun City R. Co., 165 So. 416.
It is as much a nondelegable duty of the master to exercise reasonable care to see to it that reasonably safe methods are carried out as it is to adopt them, and the defendants completely failed in both in this situation.
Scott Burr Stores Corp. v. Morrow, 180 So. 741; Albert v. Doullut Ewin, Inc., 178 So. 312; Brown v. Cooley, 152 So. 61; Restatement of the Law, Agency, sec. 508.
The appellants undertake to reverse this case on the idea of the plaintiff's own negligence, notwithstanding Sec. 511 of the Annotated Code of 1930 on the subject of comparative negligence.
It was not the duty of the plaintiff Baremore Bryan on that cold morning to suspect that his master had lain a trap for him and had planted the dangerous commodity of gasoline in the kerosene can where it did not in any sense belong, and having no actual notice of it he had a right to rely upon the master to perform his nondelegable duty to exercise care to see to it that his ways, means, and appliances were reasonably free from dangers to him as an employee. He was not required to suspect and then go out and inspect.
Brooks v. DeSoto Oil Co., 57 So. 229; Gow Co., Inc. v. Hunter, 168 So. 264; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Murray v. Natchez Drug Co., 56 So. 330; A. V.R. Co. v. Groom, 52 So. 703.
Conflicting evidence or evidence from which conflicting reasonable inferences may be had should be submitted to the jury.
Universal Truck Loading Co. v. Taylor, 172 So. 756; King v. King, 134 So. 827; Gravette v. Golden Sawmill Trust, 154 So. 274; McKane v. Wade, 180 So. 748; Loper v. Yazoo-Miss. Valley R. Co., 145 So. 743.
The whole record shows that if any rule at all had been promulgated against what he was doing at the time of his injury, it was put under a bushel and not passed to this employee or his co-workers and the master cannot cry out against an employee if the mischief is brought about through his own carelessness, that the employee was violating a rule promulgated, perhaps, if at all, in the four walls of his office but not delivered to his employees.
39 C.J., sec. 948.
The defendant company through its foreman on the job had directed, permitted, and acquiesced for a time in the starting of fires with kerosene and that it became a practice on the job with the knowledge of the foreman in charge of the job and to keep up that practice could not be construed as an infringement in any sense of the word even if he had known about a promulgation of the rule in the office.
Owens v. Yazoo-Miss. Valley R. Co., 47 So. 518; Hardy v. Turner-Farber-Love Co., Inc., 101 So. 489; Mathews v. N.O. N.E.R. Co., 47 So. 657; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; 39 C.J., secs. 1014 and 948; Southern Ry. Co. v. Smith, 137 So. 398.
In the case of keeping warm, while at work, we cite the case of Ziolkowski v. American Radiator Co. et al., 161 N.E. 164.
Rolling Mill Co. v. Rockhold, 42 So. 96; 4 LaBatt on Master and Servant, sec. 1558, page 4690; Employers Mutual Ins. Co. v. Industrial Commission of Colorado, 130 P. 394; Geibig v. Ann Arbor Asphalt Const. Co., 214 N.W. 90; Richards v. Indianapolis Abattoir Co., 102 A. 604; Bubis v. Flockhart Foundry Co., 191 A. 281.
Perhaps the declaration did not set up specifically the amount of damages sustained by the plaintiff for doctors' bills, hospital bills, nurses' bills, and personal attendant and medical bills, but there was no objection made by the defendants to the form of the declaration when issue was joined and we proceeded to trial. Sec. 555 Code of 1930, prescribes the duties of a defendant and gives him his opportunities when a declaration is not as specific as it ought to be, viz: to address a request to the court to have it made more specific by the filing of a bill of particulars. This the defendants did not do, but proceeded to trial without doing so, and thereby waived all the elements of the declaration that were too general in their scope.
Trussell v. Breeland, 131 So. 811; Besser Movable Stairway Co. v. Bank of Leaksville, 106 So. 445; Gower v. Strain, 145 So. 244; Section 600, Code of 1930.
Learned counsel complain on the theory that the evidence offered to show the expenses necessarily incurred by plaintiff by way of doctors' bills, hospital bills, nurses' bills, and personal attendants' bills, etc., were not proper elements of damage. We submit the following authorities to controvert that view, to-wit: Hollenshed v. Yazoo-Miss. Valley R. Co., 55 So. 40; Pan-American Petroleum Corp. v. Pate, 138 So. 349; Chicago Rock Island Great Ry. Co. v. Steele, 264 S.W. 503; York v. Stokes, 129 So. 226; U.S.F. G. Co. v. Baker, 134 So. 894; Aplin v. Dean, 164 So. 737; 17 C.J., sections 103, 105, 106 and 107.
Argued orally by C.L. Tubb, for appellant, and by Jas. A. Cunningham, for appellee.
Appellee intended to use kerosene in a can container to start a fire. Instead he got hold of a can of gasoline. The result was an explosion burning him from the hips down which, the evidence tended to show, rendered him a physical wreck for the balance of his life. The explosion occurred on the 22d day of February, 1937. The trial took place about a year afterwards. Appellee was about thirty-six years of age. He had not been able to walk. His legs were drawn at the knees at an angle of about forty-five degrees. He brought this action against appellants, the construction company and certain of its servants, to recover damages for the injury. At the time of the injury he was one of the construction company's servants. He alleged as ground for recovery that it was through appellants' negligence that he inadvertently used gasoline instead of kerosene in starting the fire. He charged further that he was acting in the service of the construction company and within the scope of his duties in the making of the fire. There was a verdict and judgment in the sum of $22,500, from which judgment appellants prosecute this appeal.
The Court overruled appellants' motion for a directed verdict. That action of the Court is assigned and argued as error. Appellants, in their brief, state that they rely mainly for reversal on that alleged error.
The construction company is a foreign corporation. It was engaged in the construction of about nine miles of Highway 45 between Baldwin and Booneville. For that purpose it had the usual equipment, consisting of tractors, grading machines, draglines, and other instrumentalities, among which were five tractors equipped with Diesel engines. These Diesel engines were heavy and hard to crank, and, for that reason, were equipped with small starter motors operated on the same principle as the ordinary gasoline engine, in which gasoline was used as a starter. After they got started the starter motor was cut off and fuel oil was used as power. The equipment was assembled from time to time in what was known as camps. At such places there were no sheds, houses, or buildings of any kind. At such camps, the construction company provided what was known as a tool box, about ten feet long, about five feet wide, and about five feet high. It had a top with hinges. In this box were stored small tools and equipment, including gasoline, kerosene, grease, and other articles used about the work. The kerosene can was newer than the gasoline can. In order to distinguish one from the other, there was usually kept tied with a string on the upper part of the gasoline can its top and the top to its spout. This was done to prevent the use of one for the other. The foremen on this job were Autry and McRae, and the superintendent was Dozier. The weather was very cold at the time of the injury. According to the evidence for appellants the kerosene was to be used alone in lighting lanterns and for flares; that each crew was provided with what was known as grease monkeys, whose duty it was to build fires to heat the grease guns used in greasing the machinery; that appellee operated a tractor and had nothing to do with the building of fires for any purpose, and that the method of keeping kerosene and gasoline in the same tool box with a distinguishing mark was in common practice among road builders. The evidence for appellee which the jury believed, and were justified in so doing, was to the effect that the servant reaching the camp first in the morning was to build a fire for the purpose of heating the grease guns and to enable the servants to warm by before going to work; and that it was a custom, with the construction company's knowledge and consent, to use kerosene with which to start the fire; that on the morning of the injury appellee reached the camp first, and, following the custom, arranged the kindling and wood for the fire, then went to the tool box and felt for the can with nothing tied on the top of it, found it, and believing that it contained kerosene, as it should have, used it in making the fire, resulting in the explosion and injury; that the explosion was caused by its being gasoline instead of kerosene; that the interchange of the contents of the two cans was without appellee's knowledge and occurred the day before the injury through the negligence of fellow servants and foreman McRae. The evidence for appellee was further to the effect that if kerosene had been used instead of gasoline, the explosion would not have taken place. The appellee, in his testimony, describes the occurrence in this language: "I went to the tool box to get the can, it was early in the morning and the tool box was a little deeper than I could reach, I had to breast over the edge of the box and reach over after the can, and I went there and reached over and got hold of this can, felt first to see if there was any string on the top of the cap, and I didn't find any, and I pulled it up so I could see and it resembled the kerosene can and I took it to where I had some wood piled up and poured it on the wood, poured about a quart, and struck a match and set it afire and went and got some more wood, and when I came back there was quite a bit of frost on the wood and the fire had died down, was about to go out, and I picked up the can and sloshed some of the contents on there and brought the can back to me and as the flash came up from the fire it caught back on the fumes and the can exploded."
Gasoline is a dangerous agency; it is highly explosive. Standard Oil Company v. Evans, 154 Miss. 475, 122 So. 735. Appellants argue that there could be no recovery under the fellow servant rule; that if there were any negligence proximately contributing to his injury, it was that of a fellow servant and not of appellants. The evidence showed without any substantial conflict that the two foremen, Autry and McRae, were not fellow servants with appellee, and his coservants, but had the right to, and did, direct and control their services for the master. Were appellants guilty of any negligence proximately contributing to the injury? We think the evidence made that an issue for the jury and we come to that conclusion upon the following considerations: The master is required to use reasonable care to furnish his servants a reasonably safe place to work, and reasonably safe instrumentalities to work with, and reasonably safe methods and rules under which to work. Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Albert v. Doullut Ewin, Inc., 180 Miss. 626, 178 So. 312; Scott Burr Stores Corp. v. Morrow, Miss., 180 So. 741, 744. "In order to relieve the master from liability for an injury to one of his servants the negligence of a fellow servant must have been the sole cause of the injury, and not commingled or combined with the negligence of the master or his representative." 4 Thompson on Negligence, pars. 4856, 4863, quoted with approval in the opinion in the last case above referred to. Putting the principle in different language: The last proximate cause of the injury is the negligence of a fellow servant, but the proximate cause of his negligence was that of the master, the fellow servant rule has no application; both the fellow servant and the master are jointly and severally liable to the injured servant — the negligence of both proximately contribute to the injury. Putting it in another way: The proximate cause of the proximate cause makes both the proximate cause.
The gasoline and the kerosene were instrumentalities used in the work. In view of the dangerous character of the gasoline, it was the duty of the construction company to prescribe reasonably safe rules and methods for its storage and handling in order to prevent injury to its servants. We are of the opinion that the evidence made it a question for the jury whether that obligation was met. Whether reasonable care required that separate places of storage should have been provided for the cans of gasoline and kerosene, or different and more pronounced methods of distinguishing one from the other if stored together we think was a question for the jury.
In addition to what has been said, we think our comparative negligence statute, Section 511, Code of 1930, and the statute abolishing the assumption of risks doctrine between employer and employee (Section 513, Code of 1930) answer a good deal of appellants' argument that it was entitled to a directed verdict.
Appellants argue that there is no liability because appellee at the time of the injury was engaged about his own affairs and not serving his master. That contention is based on these facts, which were undisputed in the evidence: The building of the fire, and the explosion, and the injury all occurred before, although only a few minutes before, appellee's work day begun. The fire was being built, as already stated, for the servants to warm by and to heat the grease guns used in greasing the machinery. The contention is without merit. Injury to a servant while gathering fire wood before working hours for such a purpose arises out of, and in the scope of, his employment. 4 La Batt's Master and Servant (2 Ed.), p. 4690; Ziolkowski v. American Radiator Co., 247 N.Y. 513, 161 N.E. 164; Geibig v. Ann Arbor Asphalt Const. Co., 238 Mich. 560, 214 N.W. 90.
Over appellants' objection appellee was permitted to introduce evidence showing doctors' and hospital bills necessarily incurred on account of the injury. The objection was general. It is argued that it should have been sustained because such elements of damages were not claimed in the declaration. Section 555, Code of 1930, answers that contention. Appellants' remedy was an affidavit that a bill of particulars was necessary to their defense.
On the voir dire examination of the jury, over appellants' objection, counsel for appellee were permitted by the Court to state to the jury that this was a suit for a large amount, and to ask each of them whether or not if the proof showed that appellee had been damaged in a large amount it would embarrass them to return a verdict for a large sum. This appears to have been an unusual examination of the jury. We cannot say that it harmed appellants' cause. Appellants' counsel could have put the converse of the proposition to the jury — that although a large amount was sued for, appellee was not entitled to recover any sum whatever, and, if that were true, would it embarrass them to return verdict for appellants?
We do not think there is sufficient merit in the other alleged errors to require a discussion by the Court. In all substantial respects the jury was fully and correctly instructed as to the governing principles of law, nor do we think there was any harm done appellants by their refused instructions. The instructions given for appellee complained of and those refused appellants are of such a character, we are unable to see that a discussion thereof would be of any substantial benefit to the bench and bar.
Affirmed.