Allen Gravel Co. v. Curtis

• Decision Date: 20 May 1935
• Docket Number: 31678
• Citation: 161 So. 670,173 Miss. 416
• Court: Mississippi Supreme Court
• Parties: ALLEN GRAVEL CO. v. CURTIS

161 So. 670

173 Miss. 416

ALLEN GRAVEL CO. v. CURTIS

No. 31678

Supreme Court of Mississippi

May 20, 1935

Division B

1. MASTER AND SERVANT.

Master must use reasonable care to provide a safe place for his employees to work, though he is not an insurer of safety of the place where servant works.

2. MASTER AND SERVANT.

Gravel company operating machine for crushing rock containing high percentage of silica had duty to make reasonable inquiry into dangers incident to operation of machinery, such as danger to employee in breathing dust generated by machine.

3. MASTER AND SERVANT.

In employee's action against gravel company for tuberculosis induced by breathing dust containing large percentage of silica generated by rock crusher, whether employer was negligent in not ascertaining injurious effects of operating machine and in not providing respirator for operator held for jury.

HON THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Tishomingo county, HON. THOS. H JOHNSTON, Judge.

Action by Hilry Curtis against the Allen Gravel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

W. C. Sweat, of Corinth, for appellant.

Liability cannot be predicated upon the injury to the employee nor can it be predicated upon danger to the employee, but it must be predicated upon negligence of the master.

Scierfman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock v. Bowles, 158 Miss. 346, 120 So. 99.

The plaintiff has no right to complain because he was not warned. The record shows that the plaintiff had been working around these gravel pits for many years. He knew that dust arose from groundup or crushed rock, he knew that as well as his master did; he was a man of intelligence.

The authorities seem to be uniform that the master is under duty to warn the servant about danger liable to cause the servant to contract disease only when the master has clearer knowledge of the facts with reference thereto than the said servant.

Zajokski v. American Steel & Wire Co., 6 A.L.R. 355; M. T. Stephens & Son Co. v. Daignault, 4 F.2d 53.

The master is not required to warn and instruct even an inexperienced or youthful servant as to risks or dangers which are patent and obvious to persons of ordinary intelligence.

Gulf & Ship Island v. Brown, 147 Miss. 421, 111 So. 451; Wagnon v. Jayne Chemical Co., 147 Pa. 474, 30 Am. St. Rep. 745; Hanel v. Obrigekewitstch, 168 N.W. 45, 3 A.L.R. 1029; Great Northern R. Co. v. Johnson, 207 F. 531; Boatman v. Miles, 27 Wyo. 481, 26 A.L.R. 864; 6 Thompson on Negligence, sec. 4061, pages 285-286, sec. 4062, page 287, and sec. 4063, page 288; Cossitt Lbr. Co. v. Land, 121 Miss. 834.

There is nothing to indicate that the breathing of this dust would probably cause silicosis or do the workman some other injury. Before the master can be charged with negligence in maintaining an unsafe place of work for his employees it must be shown that the conditions prevailing will probably injure the employee; the fact that there is a possibility that they may be so injured is not sufficient.

Jabron v. State, 159 So. 406; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842, 844.

The disease here is what is known as an occupational disease and there is no statute in this state that permits a recovery by an employee against the master when an employee has contracted an occupational disease in the course of his work.

At common law an employee has no right of action for injury arising from occupational disease.

Jones v. Rinehart & Dennis Co., 168 S.E. 483; Adams v. Acme White Lead & Color Works, 187 Mich. 157, 148 N.W. 485, L.R.A. 1916A 283, Ann. Cas. 1916D 689; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 120 So. 99; Canfield v. Iowa Dairy Separator Co., 154 N.W. 434; Ewers v. Buckeye Clay Pot Co., 163 N.E. 577; Gurski v. Susquehanna Cola Co., 262 Pa. 1, 104 A. 801; Eldridge V. Endicott J. & Co., 228 N.Y. 21, 126 N.E. 254; 20 A.L.R. 1, 4; Mauchline v. State Ins. Fund et al., 124 A. 168; Berry v. Atlantic White Lead & Linseed Oil Co., 30 A.D. 205, 51 N.Y.S. 602; Wager v. White Star Candy Co., 217 N.Y.S. 173; Miller v. American Steele Wire Co., 90 Conn. 349, L.R.A. 1916E 510.

It is undisputed that the defendant used standard equipment and that the rock was crushed in the usual and customary manner.

Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 230 So. 99.

Where the equipment is standard, and such as is in general use by businesses of the same kind, under similar conditions, there is no negligence, even though some other way might be a safer and a better way, or some other appliance might be a safer and better appliance.

Hatter v. I. C. R. Co., 69 Miss. 524, 13 So. 827; Kent v. Yazoo & M. V. R. Co., 77 Miss. 499, 27 So. 620, 78 Am. St. Rep. 534; Jones v. Yazoo & M. V. R. Co., 90 Miss. 547, 43 So. 813.

Jas. A. Cunningham and J. E. Cunningham, both of Booneville, and J. C. Jourdan, Jr., of Iuka, for appellee.

The evidence in this case shows that the general manager of the Allen Gravel Company knew that the dust created and involved in this cause of action was heavily charged with silica, and that he thought nothing about its effect upon the employees and made no effort whatever to get information, but simply moved forward at the peril of the employee.

Benjamin v. Davidson-Gulfport Fertilizer Co., 152 So. 839; Log Mountain Coal Co. v. Crunkleton, 169 S.W. 692; Frey v. Kerens-Donnewald Coal Co., 152 Ill.App. 548; Thayer v. Kitchen, 145 Ky. 554; King v. DeCamp Coal Co., 161 Ill.App. 203; Cishowski v. Clayton Mfg. Co. et al., 136 A. 472; Smith v. International High Speed Steel Co., 120 A. 188, 62 A.L.R. 1458; Madore v. New Dept. Mfg. Co., 134 A. 259; Lovaliski v. Collins & Co., 128 A. 288; London G. & A. Co. v. I. A. C., 159 P. 1096; Peru Plow & Wheel Co., 142 N.E. 546, 25 L.R.A. (N.S.) 364; Dolley v. Minneapolis Mfg. Co., 201 N.W. 305; Moore v. Service Motor Truck Co., 142 N.E. 19; Washunt-Endicott v. Karst, 133 N.E. 609; Hartford Accident Indemnity Co. v. Industrial Accident Commission, 163 P. 225.

The appellant is charged not only with knowledge that the dust which was a part of the materials in which they were working, contained a high degree of silica, but knowledge was imputed to them of its dangerous chemical properties and of the hazardous results upon the pulmonary organs of the employee who should inhale it under the circumstances they induced this man to do.

American Sand & Gravel Co. et al. v. Reeves, 168 Miss. 608, 151 So. 477; Benjamin v. Davidson-Gulfport Fertilizer Co., 169 Miss. 162; Harvey v. Welch, 163 A. 417; 39 C. J. 510.

The master cannot escape the tortious results of its dereliction of duty to its employees.

Benjamin v. Davidson-Gulfport Fertilizer Co., 169 Miss. 162, 152 So. 839; Log Mountain Coal Co. v. Crunkleton, 169 S.W. 692; Frey v. Kerens-Donnewald Coal Co., 152. Ill.App. 548; Thayer v. Kitchen, 145 Ky. 554; King v. DeCamp Coal Co., 161 Ill.App. 203; Cishowski v. Clayton Manufacturing Co., 136, A. 472; Donnelly v. Minneapolis Mfg. Co., 201 N.W. 305; Indianapolis Foundry Co. v. Lackey, 97 N.E. 349; Indianapolis Foundry Co. v. Bradley, 89 N.E. 505; Mesite v. International Silver Co., 134 A. 264; Pigeon v. W. P. Fuller & Co., 105 P. 976; Smith v. International High Speed Steel Co., 120 A. 188; Thayer's Est. v. Kitchen, 140 S.W. 1052; Peru Plow & Wheel Co. v. Industrial Commission et al., 142 N.E. 546; Hartford Accident & Indemnity Co. v. The Industrial Accident Commission et al., 163 P. 225; Madore v. New Departure Mfg. Co., 134 A. 259.

All reasonable minds would agree, in the light of all the evidence of this record, that it was exceedingly dangerous to work this man in this silica dust in the way the appellant did. The appellant was charged with notice of its deadly effect, and being charged with such notice under the law, it was more reckless on the master's part, and where it is apparent negligence, the master cannot escape because of any wrong custom.

Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; 39 C. J. 466, 467.

Argued orally by W. C. Sweat, for appellant, and by Jas. A. Cunningham, for appellee.

OPINION

Ethridge, P. J.

This is an appeal from a judgment for seven thousand dollars against the appellant in favor of the appellee for an injury to the appellee, Curtis, received in the employment of the appellant, resulting in silicosis and tuberculosis. Appellant, the Allen Gravel Company, owns a gravel pit in Tishomingo county, Mississippi, and has, for a number of years, been engaged in mining and shipping gravel to be used principally in the construction of roads and other purposes for which gravel is used. In the early part of 1930, the Allen Gravel Company installed a rock-crushing machine to crush rock too large to be used in road construction. The rock to be crushed was picked up by a steam shovel and dropped into a hopper above the crusher and went down through the mouth of the machine into the crusher. The rock, after being crushed, was carried by an endless chain and dumped into cars for shipment. Curtis, for a number of years, had been an employee of the Allen Gravel Company. During the year 1930, from about the 1st of April to November, he worked practically all the time at the rock-crushing machine and usually was in the cab where the rock went into the machine to be crushed, for the purpose of seeing that no iron or other foreign substances got into the machine. This cab was ten or twelve feet square, and eight or ten feet high, and had a door and two windows in it. During the dry times when the machine was being operated, large quantities of dust were created by the crushing of the rock, and those...