Opinion
No. 30048.
June 6, 1932.
1. MASTER AND SERVANT.
Evidence established that watchman employed to wet down fire negligently permitted fire to develop into dangerous proportions, precluding recovery for injuries to eyes in fighting fire.
2. MASTER AND SERVANT.
Master of watchman employed to wet fire held not responsible for safety of work place selected by employee.
APPEAL from circuit court of Pearl River county. HON. J.Q. LANGSTON, Judge.
L.L. Tyler, of Picayune, J.C. Shivers (of Parker Shivers), of Poplarville, and Stevens Heidleberg, of Hattiesburg, for appellants.
The plaintiff was engaged in remedying a dangerous situation. According to his theory, if the screen had not had a hole in it, the fire would not have blown toward the sawmill, and there would have been no occasion for him having to wet the fire down. The thing which made it necessary for him to be employed in the particular occupation at which he was employed at the time of his alleged injury was the existence of the hole. The negligent existence of the hole was not the cause of the injury, but it was the cause of his employment.
Hooks v. N.O. N.E.R.R., 111 Miss. 743, 72 So. 147.
The physical facts, show that there was no necessity for the plaintiff's standing within fifty feet of the fire. It is undisputed that there was ample other hose around the sawmill that could have been obtained if the two sections were not sufficiently long to enable the plaintiff to get to a place of safety in spraying water on the fire.
Rawls Hathorn, of Columbia, and Hathorn Williams, of Poplarville, for appellee.
It was negligence on the part of appellants to locate the slab pit so close to the mill that it was necessary to screen the pit off to prevent sparks and live coals of fire from setting the mill on fire, and then knowingly to permit this necessary fire screen to become in such bad state of repair that these sparks and live coals of fire would blow from the slab pit in such quantities as to constitute a peril to the mill whereby an emergency was created that required appellants to send appellee and his fellow employees into this place of known danger to protect said property against said peril so created by the negligence of appellants; and then to order appellee and his fellow employees to go into this place of known danger, so created by appellants, to protect said property from said peril.
Legan McClure Lumber Co. v. Fairchild, 124 So. 336, 18 R.C.L., pages 654-655, pars. 147 and 148 and notes; Berg v. Great Northern R. Co., 70 Minn. 272, 73 N.W. 648; Liming v. Illinois C.R. Co., 81 Iowa 246, 47 N.W. 66; Pullman Palace Car v. Laack, 143 Ill. 242, 18 L.R.A. 215, 32 N.E. 285; Rexter v Starin, 73 N.Y. 601; Wasmer v. Delaware, L. W.R. Co., 80 N.Y. 212, 36 Am. Rep. 608; Penn. Co. v. McCaffrey, 139 Ind. 430, 38 N.E. 67, 29 L.R.A. 104.
It is the duty of the master to exercise reasonable care to furnish his servants with reasonable proper and safe means and appliances with which to work.
Cotton Mills Prod. Co. v. Oliver, 121 So. 111; Hercules Powder Co. v. Tyrone, 124 So. 74; Godley v. Hines, 86 So. 289; Nelms Blum Co. v. Fink, 131 So. 817; Hardy v. Turner-Farber Love Co., 101 So. 489; 39 C.J. 308, 326, 331, 359, 450, 1082, 3261, 331, 359, 450, 1082; Wilbe Lumber Co. v. Calhoun, 140 So. 680; Lumber Co. v. Crane, 99 So. 753; Walker v. Nix, 76 So. 143.
The universal rule is that where a servant exposes himself to danger in obedience to an order of the master, and the master knew or by the exercise of reasonable care could have known that obedience to such order would result in injury to the servant, and the servant is injured, in an effort to comply with the order, the master is liable.
Choctaw Railroad Company v. Jones, 92 S.W. 244; 4 L.R.A. (N.S.) 837; Illinois Steel Company v. McFadden, 63 N.E. 671, 89 A.S.R. 319; Noble v. Roper Lumber Company, 65 S.E. 622, 134 A.S.R. 974; City of Owensboro v. Gabbert, 122 S.W. 178, 135 A.S.R. 462; Shortel v. City of St. Joseph, 24 A.S.R. 317; Stephens v. Railroad Company, 9 A.S.R. 336; Sawyer v. Rumford Falls Paper Company, 60 A.S.R. 260; 39 C.J., pars. 596, 597, 745, 1351, 1370, 1382; 18 R.C.L., par. 1496, p. 655; Seifferman v. Leach, 138 So. 563; Hardy v. Lumber Company, 101 So. 489; Coal Coke Ry. Co. v. Deal, 231 Fed. 604; Moline Plow Co. v. Anderson, 19 Ill. App. 417, 420; Matthews v. N.O. N.E.R.R. Co., 93 Miss. 325.
It manifestly appears that the master was negligent when he commanded appellee to use a hose which was too short to permit him to stand out of the path of the wind carrying the sparks that put out his eye while wetting down the slab pit; and this is so, even though other and suitable hose might have been available at the time.
39 C.J. 794, 795, 796, 1201 and 1202; Maslek v. Pennsylvania R. Co., 160 N.E. 523; Mott v. Davis, 111 S.E. 603, 90 W. Va. 613; Topore v. Boston, etc. R. Co., 100 A. 153, 78 N.H. 311.
The mere choice by a servant of an unsafe appliance, passageway or place to work, or of an unsafe method of performing the task in hand, is not of itself sufficient to charge him with contributory negligence as a matter of law.
The question as to the negligence of the servant in assuming an unsafe position for the performance of his work is one for the jury, on conflicting evidence.
39 C.J., pars. 1382 and 1383.
It was a question for the jury to determine whether or not appellants were negligent in requiring appellee to use the short water hose that required appellee to stand in an unsafe place while performing the duties assigned him.
Fountain v. J.J. Newman Lumber Company, 117 Miss. 282, 78 So. 152; Cotton Mill v. Oliver, 121 So. 111, 153 Miss. 362; Central Lumber Company v. Potter, 139 Miss. 66, 103 So. 506.
Argued orally by Rowland W. Heidelberg, for appellant, and E.B. Williams, and S.V. Hathorn, for appellee.
This is an appeal from a judgment of the circuit court awarding H.F. Clark eight thousand dollars for an alleged personal injury resulting in the loss of his eyesight.
The declaration was filed on January 14, 1930, while the alleged injury is said to have occurred on January 18, 1925.
The plaintiff, Clark, appellee here, during 1925, and until 1928, was employed as a watchman at the plant of the appellant. Among other things, his duty was to watch the slab pit in which refuse of the mill was being constantly burned and to wet down the fire whenever, from any cause, it became apparently dangerous, or there was danger of setting fire by means of sparks, etc., being blown to other parts of the mill property.
This slab pit was situated slightly west of north above the mill of appellant, and between the slab pit and the mill there was a fire plug from which water was procured and transmitted by means of hose, to wet down the fire in the slab pit.
There were other employees engaged in the service of the appellant company who also seemed to have like duties with the appellee, Clark. On the night of the injury in question, according to the plaintiff's testimony, one Frisby, who was a foreman over the appellee, came by a building situated upon the premises, and found the appellee and other employees had taken shelter from the wind, it being a cold night and the wind blowing strongly from the north, and the fire had grown to dangerous proportions, and sparks were being blown by the wind towards the mill, and that Frisby said, "What watchmen," which they understood to refer to their failure to wet down the fire, and then proceeded immediately to go about that task.
The plaintiff (appellee here) testified that this foreman, Frisby, directed him to go to house No. 10 where hose was stored, get the hose, and wet down the fire; that he went to this house, got two sections of hose, each fifty feet, amounting to one hundred feet, attached it to the fire plug; placed the hose in a semi-circular way from the fire plug around the west or southwest side of the fire plug, and was proceeding to sprinkle the fire from the hose. While so engaged, and while considerable sparks were being thrown from the fire, the wind suddenly changed, and the plaintiff (appellee here) testified that hot ashes and coals struck him in the left eye, injuring his eye and causing permanent blindness in that eye, and, by sympathy, the other eye, finally resulting in total blindness in three or four years after the injury occurred. It was the theory of the plaintiff that the company was negligent in that a part of the screen protection between the fire and the mill had fallen down leaving a gap through which live coals would pass that would not have passed had it been intact. The plaintiff also contended that there were insufficient plugs to render the place safe. It appears that the plug used on the night in question was the closest to the slab pit; there was another fire plug near the barn some distance from the slab pit, but insufficient hose in the house to go to this distant plug.
It does not appear that there was not other hose obtainable, if needed, but, taking the plaintiff's statement as being true, he went to house No. 10 at the direction of his foreman for the purpose of getting hose to attach to a fire plug to wet down the fire. He was not given any directions by his foreman as to where he should stand, or how he should operate the hose in performing his duty. In other words, he selected his own place and used his own method of fighting the fire.
We do not think the screen wire between the slab pit and the mill was placed there for the protection of the watchmen in wetting down the fire, or that the master was under duty to erect a screen for this purpose. The employees, among other things, were employed to control the fire in the slab pit. Their employment was for this very purpose, and, very probably, the fact that the wire was down was the cause of the employment of the plaintiff, or the number of men who were employed to perform this duty.
This seems to bring the case within the purview of Hooks v. New Orleans N.E.R.R. Co., 111 Miss. 743, 72 So. 147, 148. The court in that case, said that: "The deceased was employed to remedy a defectively loaded car — not to unload the car. He knew the conditions and dangers incident to the employment. The negligent loading of the car, if such was the case, was the thing he was engaged in correcting. The negligent loading was not the cause of the injury, but it was the cause of his employment. He was ordered to readjust the dangerous load and make it safe, and in the performance of this work he was injured. In other words, he undertook to repair the negligence of some other employee, and in doing so the logs rolled off and crushed him."
It is clear from the evidence of the plaintiff and his witnesses that their negligence, on account of seeking shelter from the cold, caused the fire to go into dangerous proportions. Had they acted promptly in the performance of their duties, the danger which they were combating when plaintiff was injured would probably not have existed. It is clear under the law, that a party cannot benefit by his own wrong and negligence; and, as the negligence of the plaintiff in the case at bar caused the situation to arise which resulted in his injury, we do not think he can recover therefor.
In the next place, the plaintiff selected his own place and method of fighting the fire in question. In such a case, the master is not responsible for the safety of the place selected by the employee for his own purpose. Ovett Land Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Rose v. Pace, 144 Miss. 375, 109 So. 861; Stokes v. Lumber Co., 151 Miss. 711, 118 So. 441; 18 R.C.L. 596, sec. 97; and 39 C.J., page 343, secs. 463 and 466.
We are therefore of the opinion that there was no liability on the part of the appellant for the appellee's injury; and, in this view, it is unnecessary to decide the questions affecting a compromise and settlement, and the question of admissibility of evidence as to what occurred between the physician and the plaintiff in the presence of persons leading him because of his blindness.
Reversed, and judgment here for the appellant.