Crossett Lumber Co. v. Land

Decision Date22 March 1920
Docket Number20951
Citation84 So. 15,121 Miss. 834
CourtMississippi Supreme Court
PartiesCROSSETT LUMBER CO. v. LAND

March 1920

[In Banc.]

1. MASTER AND SERVANT. Failure to instruct experienced employee appreciating dangers held not negligence.

The employer is not bound by law to give instructions to an employee who from intelligence and experience, or knowledge is able to appreciate the dangers of the employment he has undertaken.

2. MASTER AND SERVANT. Danger from creosote flying into eye obvious and a hazard of employment.

The danger of injury to an experienced employee from creosote flying into his eye while superintending the driving of a creosoted stave in the groove of a silo was obvious from ordinary observation, and was a hazard incident to the employment.

3. MASTER AND SERVANT. Failure to instruct experienced servant of obvious danger not negligence.

The failure of the employer to instruct the employee who was an experiened builder in charge of building a silo, that creosote would injure his eye if it flew into it from a driven stave, was not negligence in the employer.

4. MASTER AND SERVANT. Injury to eye of unwarned but experienced employee by flying creosote held accident resulting from his imprudence.

The injury to the eye of the competent and experienced employee by creosote contact, under such circumstances as above, was not caused by the negligence of the employer, but was an accident resulting solely from the imprudence of the employee.

Hon. J G. McGOWEN, Chancellor.

APPEAL from chancery court of Panola county, HON. J. G. MCGOWEN Chancellor.

Suit by attachment by J. W. Land, administrator, against the Crossett Lumber Company and others named as garnishees. Decree for plaintiff for two thousand dollars, and defendant appeal. Reversed, and judgment entered for defendant.

Judgment reversed.

J. B. Corothers and F. W. Montgomery, for appellant.

Stripped of its judicial embellishment, complainant's first allegation of negligence is, that the lumber company failed to say to him when it employed him as superintendent to erect these silos, or superintend their erection, and furnished him among other things for use "a substance composed largely, perhaps wholly, of creosote," "Land, it will injure your eye if you get any of this wood preservative in it, and you should apply it so as not to allow any to get in your eye," and that such failure to so warn him, constituted actionable negligence.

In view of the settled law in cases of this character, this allegation of negligence, and the evidence tending to support it, constitute a legal absurdity. Land was an intelligent man, possessed of a fair education; he was thirty-five years old; not an ordinary laborer, but a "contractor and builder." He admitted having had more than ten years actual experience in all kinds of construction work, and had handled and was familiar with all kinds of building materials, including paint, etc. He was employed as an experienced builder, and recommended himself as being fully capable of taking charge of and building their silos. There was nothing to put the lumber company upon notice that he was not fully competent to handle the situation, and was not aware of any ordinary dangers incident to his employment. The law on this subject can be stated as follows:

"No duty rests upon a master to instruct a servant as to the probable dangers of the employment where he is mature, intelligent and experienced in the work, and the master has no notice that he is not fully competent and acquainted with such dangers." King v. Morgan, 48 C. C. A. 507; North Ala. etc., Co. v. Beacham, 37 So. 227; Am. Malting Co. v. Lelevelt, 101 Ill.App. 320; Peterson v. New Pittsburg Co., 63 A. S. R. 289; Republic I. & S. Co. v. Ohler, 68 N.E. 901, 161 Ind. 260; Labelle v. Inh. of Montague, 54 N.E. 859; Brundige v. Dodge Mfg. Co., 66 N.E. 604; Burton v. Harvard Brewing Co., 67 N.E. 356; O'Keefe v. John P. Squire Co., 74 N.E. 340; Omaha Bottling Co. v. Theiler, 80 N.W. 821, S. C., 80 A. S. R. 673; Weed v. Chicago, etc., R. R., 99 N.W. 827; Saucier v. N.H. Spring Mills, 56 A. 545; Tompkins v. Marine Eng. & Mac. Co., 58 A. 393; Moose, etc., Co. v. Richardson, 28 So. 334; S. C. 664 A. S. R. 785; Sandquist v. Ind. Tel. Co., 80 P. 539.

And in 1 Labatt's, Master & Servant, sec. 245, the rule is stated in this language: "An obvious corollary of the general principle stated in section 238, supra, is that a master is not bound to give instruction to a servant who has acquired sufficient special knowledge to enable him to appreciate the perils of the employment which he had undertaken" and again the rule is stated in Hanel v. Obrigekewitsch, 168 N.W. 45, 2 A. L. R. 1029, as follows: "An employee is presumed to see and understand all dangers that a prudent and intelligent person of the same age and experience, and with the same capacity for estimating their significance, would see and understand." 18 R. C. L. 570.

And in the case of Railroad Co. v. Downs, 102 Miss. at page 142, Justice REED in delivering the opinion of the court, states the rule in this language: "It was not incumbent upon the appellant to give any warning and instruction to appellee regarding any dangers or perils connected with the work in which he was engaged. Such dangers were ordinary hazards, patent to the average workman, or such as were easily discoverable in the exercise of ordinary intelligence and care. The proof shows that appellee was not without experience in the work of a section hand about railroad tracks and road beds, and that the work then being done was not unusual, but was ordinary. From the facts in evidence we believe the appellant could have rightfully assumed that appellee possessed such experience and judgment ordinarily found in workmen of his grade, and that he was reasonably skilled in the work he was undertaking.'

Both the pleadings and evidence in this case showing that complainant was mature, intelligent and experienced, and according to his own statement, was fully capable of doing the work, not as a mere laborer, but as superintendent, which he was employed to do, there was no want of prudence and caution on the part of the defendant in failing to advise him that particles of the "dope" as it was termed by the complainant, or liquid furnished to treat the ends of the staves before joining them together, would injure the eye by contact and to so use the same as not to permit it to get into his eye.

We submit that there is nothing in the allegation of negligence above discussed, nor in the evidence tending to sustain the allegation, which would in law require the defendant to have given the complainant such a warning. The authorities which we have above cited completely refute this contention.

II. We take it also that the court will readily hold, that the chance or risk of particles of the liquid wood preservative, disadhering to the wood and coming in contact with the mechanic or workman applying same, is such an obvious and patent hazard as to dispense with the necessity in any case with warning by the employer. The law undoubtly charges an experienced workman of maturity and intelligence, with knowledge that particles of liquid substance being applied to a structure such as this, would likely not adhere, or disadhere to the structures, and adhere to the person of the workman. A workman of a very low order of intelligence even would know this, to say nothing of a person possessed of sufficient knowledge and experience to act as superintendent of a job.

The rule of law is stated by Justice COOK in the case of Y. & M. V. Ry. v. Hellum, 119 Miss. 229, as follows: "It is elementary law, that employees assume the obvious risks incident to their employment." N. O., etc., Ry. v. Hughes, 49 Miss. 258; 1 Labatt's Master & Servant, sec 238; 1 Labatt's Master & Servant, sec. 239.

The principle of law announced by Justice COOK, in the case of Y. & M. V. Ry. v. Perkins, 108 Miss. 111, 66 So. 273, fits perfectly the facts in this case in this respect. I quote from the opinion of the court in the Perkins case at page 119 and 120: "It is perfectly manifest that appellant was a skilled carpenter and had constructed a great many scaffolds like the one in question; that he knew all about how they ought to be constructed to make them safe; that the instructions given by the assistant foreman, were of the most general and perfunctory character, no doubt because the foreman knew that appellee was qualified to do this sort of work without any advice from him. It would not be unfair to to say that appellee, knowing the danger, voluntarily elected to take chances; but aside from this view of this case, we ase forced to the conclusion, taking the record in its most favorable aspect, that as a matter of fact the scaffold was changed by appellee himself, and that no specific commands or instructions as to how the work was to be done were intended to be given by the assistant foreman. Indeed, the work was of the simplest kind, and the foreman did not limit the workman as to the method of performing it, and at most he only made a suggestion which appellee was at liberty to accept or ignore as he saw fit. There is nothing in the record to justify the idea that the foreman directed the manner of doing the work, in any proper sense, nor does it appear that he saw the work done; but on the contrary it appears that appellee supervised the work and in one particular he attempted to improve the foreman's suggestion.

It is of course, the duty of the master to provide a reasonably safe place for the servant to do his work, and this duty is nondelegable; but when the workman himself is doing the work for his own safety, and neglects to take the simplest precautions to insure his...

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