Brown v. Coley

• Decision Date: 08 January 1934
• Docket Number: 30902
• Citation: 152 So. 61,168 Miss. 778
• Court: Mississippi Supreme Court
• Parties: BROWN v. COLEY

152 So. 61

168 Miss. 778

BROWN v. COLEY

No. 30902

Supreme Court of Mississippi

January 8, 1934

Division B

1. MASTER AND SERVANT.

Concrete mixer laborer, who received burns when he poured gasoline from bucket into small opening of tank without using funnel provided by employer while motor was running, could not bring action for burns under "safe place to work doctrine" which imposes liability on master not for danger but for negligence.

2. MASTER AND SERVANT.

Concrete mixer laborer who received burns when he poured gasoline from bucket into small opening of tank without using funnel provided by employer while motor was running, could not maintain action for burns on ground that employer failed to use reasonable care to furnish reasonably safe tools and appliances.

3. MASTER AND SERVANT.

When master furnishes reasonably safe location for doing of particular work and installs generally approved equipment in adequate repair suitable for place and work, and furnishes appliances easily to be used in connection therewith, he has performed his duty in so far as concerns doctrine of safe place to work and of safe appliances, notwithstanding there still be danger in work.

4. MASTER AND SERVANT.

Where master provides safe means for doing certain work, and servant elects to use different and dangerous methods, he cannot recover, since such acts become negligence of servant and not of master.

5. MASTER AND SEBVANT.

When master has furnished suitable place for work, suitable equipment, and reasonably safe appliances, then if servant is mature and experienced in character of work being done obligation to take care of himself as to all obvious dangers is on servant, and duty of master exists only as to nonobvious dangers.

6. MASTER AND SERVANT.

Where servant is mature and experienced in character of work being done as respects obvious dangers arising in details of work master is liable only when he fails to furnish proper instrumentalities in proper repair which if used will reasonably obviate danger, or where he affirmatively orders servant, at time of injury or at previous times, to omit safe way and to perform work in unsafe manner.

7. MASTER AND SERVANT.

Where master expressly orders servant to omit safe method and to do work in dangerous way, master is estopped to assert that duty to avoid obvious danger was on servant, unless danger is so imminent that no person of ordinary prudence should encounter it, even under orders.

8. MASTER AND SERVANT.

Assumed authority of fellow servant who ordered laborer to pour gasoline from bucket into tank of concrete mixer without using funnel provided by employer while motor was running held not to bind employer.

9. MASTER AND SERVANT.

Employer held not liable for burns sustained by employee in pouring gasoline from bucket into tank of concrete mixer without using funnel provided by employer on ground that he saw or was near enough to have seen pouring.

10. MASTER AND SERVANT.

Rules of law respecting obligation of master to put into operation adequate method or system for safety of his servants are substantially same as those dealing with obligation to promulgate and enforce regulations for maintenance of safe method or system, which obligation arises only where work is dangerous and complex, and conditions which may arise are uncertain and obscure.

11. MASTER AND SERVANT.

Where work is simple in character and free from complexities and where danger is apparent, master is not required to promulgate rules for maintenance of safe method or system.

12. MASTER AND SERVANT.

Attempt by concrete mixer laborer without use of funnel as provided by employer to pour gasoline out of bucket into small hole in tank, near electrical equipment of engine while running was obvious danger and not obscure or complex so as to require employer to promulgate regulations for maintenance of safe method.

HON. R L. COBBAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Action by Allen Coley against J. M. Brown. Judgment for plaintiff, and defendant appeals. Reversed and decree for defendant entered.

Reversed and decree for defendant entered.

Engle & Laub, of Natchez, for appellant.

Nowhere in the record is there any substantial evidence of any negligence on the part of appellant Brown nor even any suggestion of any negligence on his part. The gasoline motor be employed was not defective in any way and was simply kin ordinary gasoline motor.

The peremptory instruction should have been given as asked.

Natchez Cotton Mills Co. v. McLain, 33 So. 723; Rose v. Pace, 109 So. 861; Ovett Land & Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499.

This court has reiterated the general rule that where an employee adopts a highly dangerous method of performing a duty or work when a safe method was equally available, then the negligence of the employee is the proximate and sole cause of the injury.

Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Key Number Digest, "Master and Servant" Key No. 238 (3) and Key No. 247 (4); 39 C. J., "Master and Servant," p. 766, sec. 966.

The law is clear that in any case where the proven facts give equal support to each of two inconsistent inferences, judgment must be rendered against party on whom rests the burden of sustaining one of such inferences as against the other.

Liggett & Myers Tobacco Co. v. De Parcq, 66 F. (2d) 678; United States Fidelity & Guaranty Co. v. Des Moines Nat. Bank (C. C. A. 8), 145 F. 273; Eggen v. United States (C. C. A. 8), 58 F.2d 616; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 350, 76 L.Ed. 699; Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Smith v. First National Bank in Westfield, 99 Mass. 605, 97 Am. Dec. 59.

Kennedy & Geisenberger, of Natchez, for appellee.

In the instant case it is shown that the master permitted as a custom the refueling of a motor with highly inflammable and explosive substance while the motor was running, and that he failed to furnish safe means whereby the fuel could be poured into the engine tank but allowed the same to be done by use of an eight gallon lard can with the rim mashed in, and while a funnel was sometimes provided, it was not at the job the day the appellee was injured, and in conformity with the custom prevailing he did not lose time looking for it and running the risk of having the engine run down and delay operations.

The question of whether or not the master was negligent was one for the jury to pass upon and decide.

Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Wilbe Lbr. Co. v. Carson, 140 So. 680; Mississippi Utilities Co. v. Smith, 145 So. 896; Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792.

Negligence, if any, of the master being shown, the employee by virtue of section 513, Code of 1930, assumed no risks of his employment.

The fact that the motor being operated by the appellant was not defective other than being hard to start would not serve to relieve the master of liability.

Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Labatt's Master and Servant (2 Ed.), sec. 1110; White v. Louisville, N. O. & T. Ry. Co., 16 So. 248; 39 C. J., Master and Servant, sec. 1103; Ulm v. McKeesport Tin Plate Co., 263 P. 327, 106 A. 639.

Argued orally by Charles F. Engle, for appellant.

OPINION

GRIFFITH, J.

Appellant was engaged in the building of a concrete bridge, and appellee was employed by appellant as a laborer in and about the operation of a concrete mixer. The water to use in the concrete mixer was pumped from the adjacent creek by means of a small gasoline engine. Because of the nature of the work and the temporary character of the location of the machinery necessary to be used therein, this gasoline engine was of a compact construction, the gasoline tank thereof being in close proximity to the flywheel, the electrical sparking apparatus, and the other essential parts of the motor. The tank was filled by pouring gasoline therein through a small opening about one and one-half inches in diameter. The proper way to pour in gasoline was by the use of a funnel, which appellant had furnished for that purpose, and to do otherwise would waste the gasoline, and would create a danger from the likelihood that the wasted gasoline would become ignited by The electrical spark.

On the occasion in question appellee, at the request or order of one Baker, a fellow servant whose duty it was to assist in the operation and care of the gasoline engine, attempted to fill the tank by pouring gasoline from a bucket into the small opening in the tank without the use of the funnel, and while the motor was running. Some of the gasoline wasted and became ignited. The fire was thus communicated to the bucket, and in the effort to escape therefrom appellee was severely burned.

The main contention of appellee, as shown by his declaration and by the only instruction requested by him on the issue of liability, is that the master had failed to furnish him with a reasonably safe place in which, and with reasonably safe appliances with which, to work. The proof is insufficient, in fact there is no proof, to bring this case within the safe place to...