American Sand & Gravel Co. v. Reeves

Decision Date11 December 1933
Docket Number30895
Citation151 So. 477,168 Miss. 608
PartiesAMERICAN SAND & GRAVEL Co. et al. v. REEVES
CourtMississippi Supreme Court

Division B

Suggestion Of Error Overruled January 22, 1934.

APPEAL from circuit court of Forrest county HON. W. J. PACK Judge.

Suit by C. W. Reeves against the American Sand & Gravel Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

T. J. Wills and T. C. Hannah, both of Hattiesburg, for appellants.

If the risk and danger to which the service required to be performed exposes the servant are plainly apparent, both the instrumentality to be employed by the servant in performing the required service and the danger to be encountered in the use of the instrumentality being obvious, so as that there shall cease to be necessity for instruction or warning, the employer may remain silent, and leave the servant to avoid clearly seen danger by the reasonable use of his own faculties.

Dobbins v. Lookout Oil & Refinery Co., 133 Miss. 248, 97 So. 546; Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191.

Under the rule laid down by this court there was no negligence on the part of the appellant in its failure to warn the plaintiff that if he stuck his hand in the fire or turned a boiling burning asphalt paint over on him that it would burn him.

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.

Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; 18 R. C. L., pp. 573, 574, sec. 80; Sufferman v. Leach, 161 Miss. 853, 138 So. 563.

The work that the plaintiff was doing was simple work and not complex. The tools with which he was working were simple tools, a little hole in the ground and a bucket in which he was heating the substance.

Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133. So. 229; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 78 So. 776; Vicksburg, etc., Co. v. Vaughn, 27 So. 599; Capital City Oil. Works v. Black, 70 Miss. 8, 12 So. 26; Hatter v. Railroad Co., 69 Miss. 642, 13 So. 827; Railroad Co. v. Bennett, 111 Miss. 163, 71. So. 310; Stokes v. Adams-Newell Lbr. Co., 118 So. 441; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443.

Lester Clark and F. M. Morris, both of Hattiesburg, for appellee.

While the whole effect of the brief for the appellants is to admit the general rule of law, that it is the duty of the master to warn and instruct his servant who by reason of his immature years or inexperience, or both, in regard to dangers to which the servant would be exposed, if such dangers are known or ought to be known to the master, as was so aptly held by this court in the cases cited by counsel for appellants.

Dobbins v. Lookout Oil & Refining Co., 133 Miss. 248, 97 So. 546; Yazoo & M. V. R. R. Co. v. Smith, 150 Miss. 882, 117 So. 339; Masonite Corporation v. Lockridge, 163. Miss. 364, 140 So. 223; 39 C. J., p. 486, par. 602; 18 R. C. L., p. 565, par. 76; Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191.

The rule requiring warning and instruction as to dangers of which the employer has actual or constructive knowledge and knowledge of which is not charged to the employee has been applied dangers . . . as to the properties of dangerous chemicals . . . the dangerous properties of dynamite, detonation caps or other explosive agencies or of their presence.

39, C. J., p. 509, par. 620; Enid Electric, etc., Co. v. Decker, 36 Okla. 367, 128 P. 708; Klauder-Weldon Dyeing Mach. Co. v. Gagnon, 183 F. 962, 106 C. C. A. 302 (aff. 174 F. 477); Republic Iron, etc., Co. v. Lulu, 48 Ind.App. 271, 92 N.E. 933; Charron v. Union Carbide Co., 151 Mich. 687, 115 N.W. 718; Fitzgerald v. Brooklyn Inst. of Arts, etc., 175 A.D. 554, 162 N.Y.S. 625; Garren v. Ottumwa Gas Co., 185 Iowa 1142, 170 N.W. 428; Payne v. Weisiger (Tex. Civ. App.), 233 S.W. 105; Evans v. Brown, 141 Miss. 346, 106 So. 281; Hercules Powder Co. v. Williamson, 145 Miss. 171, 110 So. 244; Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824.

Argued orally by T. J. Wills, for appellant, and by F. M. Morris, for appellee.

OPINION

Griffith, J.

All authorities agree that the master is charged with knowledge of the usual and ordinary dangers and hazards to which he is exposing his employee, and is bound to know the nature of the constituents and general characteristics of the...

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