Summary
In Mitchell v. Brooks, 165 Miss. 826, 147 So. 660, an employee who was injured claimed that his employer was negligent through having failed to furnish a recently developed safety appliance.
Summary of this case from Doherty v. Arcade HotelOpinion
No. 30594.
April 24, 1933.
1. MASTER AND SERVANT.
Electric light incased in steel mesh frame, used by garage employee, held "simple appliance" within rule requiring master to furnish safe tools and appliances.
2. MASTER AND SERVANT. Allegations of garage employee's declaration for injuries sustained when light incased in mesh frame fell on battery, causing sparks which ignited or exploded gasoline in pan, held insufficient to state cause of action.
Declaration alleged in substance that garage employee, in cleaning parts of automobile, washing off grease, etc., was furnished with electric light incased in steel mesh frame, and with high-grade gasoline in a pan; that the hook on top of the frame inclosing the light had been broken off; that this defective equipment furnished was an unsafe and dangerous appliance; that the light bulb fell on the battery, creating a short circuit and causing sparks to fall into the pan of gasoline and ignited or exploded it, resulting in severe burns to the employee; that first class garages provided other means of cleaning parts of automobile, but that employers failed and refused to perform their duty in that regard.
3. MASTER AND SERVANT.
Employer is not required to use latest and safest appliances and equipment.
4. MASTER AND SERVANT.
Employer is only required to furnish reasonably safe place and reasonably safe appliances, equipment, tools, etc.
APPEAL from circuit court of Bolivar county. HON. WM. A. ALCORN, J.
W.B. Alexander, Jr., of Cleveland, and C.C. Pace, of Pace, for appellant.
The master is not required to furnish the newest, safest, and best machinery, appliances, and places for work but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view. But in all occupations attended with great and unusual dangers, there must be used all appliances readily attainable for the prevention of accidents, and the neglect to provide such appliances is proof of culpable negligence.
39 C.J. 326, sec. 447B.
In the performance of the obligations imposed by law upon the master it is essential that regard should be had not only to the character of the work to be performed but also to the ordinary hazards of the employment; and the servant may assume that the master has performed such duty.
26 Cyc. 1097.
The employer's obligation of care extends as a general rule to all tools, machinery, and appliances that may be furnished for the use of the employee in the discharge of his duties; and for any neglect of this duty the employee may hold the employer liable in damages. The employee has a right to rely upon the performance of this duty by the employer and to govern his actions accordingly.
18 R.C.L. 587, sec. 91; White v. Railroad Company, 72 Miss. 12, 16 So. 248.
In cases where the tools are simple the servant has an equal opportunity with the master to ascertain any defect and consequently in regard to such simple tools the rule does not apply.
Parker v. Wood Lumber Co., 98 Miss. 750, 54 So. 252; Allen Gravel Co. v. Yarbrough, 98 So. 117.
An electric light bulb encased in a steel mesh frame and attached to a long cord designed for a hook or fastener to be attached to the frame could not be classed as a simple tool.
The general rule requiring the master to provide reasonably safe and suitable machinery has also been applied in cases where injuries were sustained while using the following appliances and machinery; brakes and component parts thereof such as brake chains, brake beams, brake pins, brake staffs, and brake wheels, bents, boilers, cables, chains, coal of inferior quality, cranes, derricks, engines, fans, flanges, gearing, hame straps, hammers hooks, horses, hose, pipes, ice tongs, kettles, ladders, lanterns, mauls, pile drivers, poles, reefing pennants, rollers, ropes, shafts, skids, shaper heads, tackles, trucks, turntables, unguarded machinery, wagons, windlasses, wires of defective insulation, and wringers.
20 Am. Eng. Ency. of Law (2 Ed.), pp. 82, 83, 84.
It is not understood that any authority favors the contention that an employer may knowingly subject his employees to danger from obsolete methods or instrumentalities. On the contrary, when safer appliances have come into general use, it is said to be negligence per se for the employer to continue to employ the instrumentalities that have been superseded.
18 R.C.L. 589.
It is a well known fact that all explosives are more or less dangerous and that high explosives of modern invention are liable to accidental ignition with destructive consequences even when causes are not discernable and though reasonable care is exercised to prevent such an occurrence.
11 R.C.L. 653, sec. 30.
A master who is engaged in the business of manufacturing or storing explosives, or who employs dynamite or other explosives as instrumentalities in carrying on his business must exercise a degree of care for the safety of his servant commensurate with the danger reasonably to be anticipated, and a failure to discharge his duty in this respect constitutes negligence.
39 C.J. 339, sec. 460.
Where one method is a safe method and the other method an unsafe method the question of whether the master failed to furnish a safe place to work is for the jury.
Hardy v. Turner-Farber-Love Company, 101 So. 489.
A servant is only bound to see patent, not latent, defects; mere knowledge of defects will not bar recovery for resultant injury unless accompanied by knowledge that they are necessarily dangerous; and he has a right to rely on the superior knowledge and judgment of his master, and to act on the assumption that the latter will not expose him to evitable risk, and has taken proper precaution to guard him from danger.
Farin v. Sellers, 3 So. 363; Wood on Master and Servant, 681, 738, 739, 763; 2 Thompson on Negligence, 975; Wharton on Negligence, sec. 215.
The servant does not assume the risk of negligence of the master in failing to furnish him a reasonably safe place to work, or a reasonable safe instrumentality with which to work. 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; Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330.
Our Legislature in 1914 abolished the doctrine of assumption of risk by an employee when the master is negligent except as to conductors or locomotive engineers.
Sec. 513, Code of 1930.
Where an electric spark caused a gasoline explosion to the injury of the servant using the combustible substance the master was held liable.
Alabama Power Co. v. McIntosh, 122 So. 677.
As to the degree of care imposed upon the master in the use of explosives, it is the settled law in Mississippi that the degree of care required is of the highest.
Evans v. Brown, 106 So. 281, 141 Miss. 346; McTighe et al. v. Johnson, 75 So. 600, 114 Miss. 862; Hamblin v. Gano, 76 So. 633; Hercules Powder Co. v. Williamson, 110 So. 244, 145 Miss. 172; Hercules Powder Co. v. Wolfe, 110 So. 842.
Jno. T. Smith, of Cleveland, for appellees.
The light and its frame and fastenings are a simple tool, and the master is not liable to the servant for the furnishing of a simple tool which is obviously defective.
Wausau Southern Lumber Co. v. Cooley, 103 Miss. 333, 94 So. 228; Bear Creek Mill Company v. Fountain, 130 Miss. 436, 94 So. 230; Allen Gravel Co. v. Yarbrough, 98 So. 117.
39 C.J. 342.
It fully appears from the declaration that the plaintiff's knowledge and judgment both in reference to the alleged defective light frame and the gasoline with its fragile pan were fully equal to that of his employers, the defendants, and he, therefore, cannot recover.
Miss. Cent. R. Co. v. Bennett, 71 So. 310; Allen Gravel Co. v. Yarbrough, 98 So. 117; Gulf M. N.R. Co. v. Brown, 108 So. 503; Kentucky Coal Co. v. Nance, 165 Fed. 44.
The plaintiff's injuries resulted from one of the dangers of the work plaintiff assumed to do.
Austin et al. v. Mobile O.R. Co., 99 So. 3; Vehicle Woodstock Co. v. Bowles, 128 So. 98; Goodyear Yellow Pine Co. et al. v. Clark, 142 So. 443.
The appellant, Hollis Mitchell, plaintiff in the court below, brought suit against the appellees, Brooks McPheeters, a partnership, for personal injuries, alleging, in the first count, that the appellees are now, and were for some years prior to the injuries, authorized dealers in Ford automobiles in Cleveland and Rosedale, Mississippi, and operated a repair shop and garage in connection therewith, and that appellant was, for about six years prior to the injuries, employed by the appellees; and on or about November 6, 1931, while so employed as a mechanic in the shop of said partnership, acting under orders of the shop foreman, he was required to examine the condition of an automobile and make a list of the parts needed to repair same, and that in cleansing parts of the automobile, washing off grease, etc., he was to be furnished with an electric light incased in a steel mesh frame and with high-grade gasoline in a light, thin tin pan, and a small paint brush with metal edges, and the electric light was usually equipped with a hook on the top of the frame inclosing it, so as to securely hook the light onto some convenient place to provide light for the work the appellant was engaged in; but that on this occasion the hook had been broken off the light, and this defective equipment so furnished the appellant, was an unsafe and dangerous appliance; that, by reason of said defective appliance, the light bulb and frame fell off the dashboard of the car where it had been fastened, and fell on the battery of said car, causing a short circuit and some sparks of electricity or fire fell into the pan of gasoline appellant was using, and ignited or exploded the gasoline, and severely burned the appellant. He further alleged that it was the duty of said partnership to furnish him a reasonably safe place in which to work and with reasonably safe and suitable appliances to do the work for which he was employed, and that said light, with said defect, was not a safe appliance. Appellant set forth the nature, character, and extent of his injuries, and prayed for damages in the sum of twenty-five thousand five hundred sixty-seven dollars and seventy cents.
In the second count the appellant alleged it was the duty of the appellees to see that the appellant was not subjected to the danger of explosions from using high grade gasoline, which was highly inflammable and explosive; and that in first-class garages there is provided a vat filled with boiling water mixed with some chemical into which the parts of automobiles are lowered on a hoist and cleared with absolute safety, and that common kerosene or coal oil, if provided, would have insured safety; but that the appellees failed and refused to perform their duty in this regard, although they well knew that gasoline was being so used, and provided nothing else for this work, although other explosions had occurred in the same place.
A demurrer was interposed to the declaration, which was sustained by the court below.
The question for consideration under the first count of the declaration is whether or not the electric light described in the declaration, when so used, is a simple appliance within the meaning of the law on that subject. The court below was of the opinion that it is, and we concur in the conclusion of that court.
A light of the character described in the pleadings could have been easily repaired by any one by the use of a small wire attached around the framework inclosing the light, so as to fasten it to some part of the car being repaired. Any person of ordinary intelligence could have easily so adjusted this light as to make it perfectly safe. It is difficult to conceive of a simpler appliance than the one described in the declaration.
We do not deem it necessary to elaborate upon the simple tool or appliance doctrine, as we have, in previous cases, fully discussed this question. See Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228, and the great number of authorities there cited; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Mississippi Central R. Co. v. Bennett, 111 Miss. 163, 71 So. 310; and Gulf, M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503.
We do not think there are sufficient facts alleged to constitute a cause of action. It may be true that first-class garages and repair shops have superior equipment; but it is not dangerous to use the equipment described, it being in general use throughout the state. It is not alleged that the method used was not commonly used by those engaged in the same line of business. The fact is that, perhaps, nine-tenths of the repair shops or garages use the same or similar methods as those used in the case at bar.
A person or corporation is not required to use the latest and safest appliances and equipment. All that is required of such is to furnish a reasonably safe place and reasonably safe appliances, equipment, tools, etc.
The appellant was thoroughly familiar with the risks of his employment and assumed voluntarily such risks. The accident was due to his failure to act prudently in securing the light so that it would not fall and cause ignition. As stated, this could have done with an ordinary degree of care on his part.
We think the court below was correct in sustaining the demurrer, and the judgment will be affirmed.
Affirmed.