Dobbins v. Lookout Oil & Refining Co

• Decision Date: 22 October 1923
• Docket Number: 23498
• Citation: 133 Miss. 248,97 So. 546
• Parties: DOBBINS v. LOOKOUT OIL & REFINING CO
• Court: Mississippi Supreme Court

97 So. 546

133 Miss. 248

DOBBINS v. LOOKOUT OIL & REFINING CO

No. 23498

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

1. MASTER AND SERVANT. Master's duty to warn inexperienced servant stated.

Where a master knows, or ought to know, the dangers to which his servant will be exposed, and that the servant, by reason of his immature years or inexperience, or both, is unable to appreciate such dangers, it is the duty of the master to give the servant such instruction and warning of the character of employment as will reasonably enable him to understand and avoid its perils; but this principle has no application where the danger is so apparent that the servant, as well as the master, must have known of it.

2. MASTER AND SERVANT. Dangers from holding chisel struck by sledge hammer held manifest to youthful employee, and not to require warning.

Defendant employed plaintiff and another to break up a concrete floor in a building. In doing so, plaintiff placed a chisel with a shank three feet long on the concrete, and held it by such shank while a fellow servant struck the head of it with a sledge hammer. While so engaged the fellow servant missed the head of the chisel with the sledge hammer, and struck and injured plaintiff. Plaintiff was a youth of fifteen years of age, and received no warning or instruction from the defendant, as to the dangers incident to his enployment. Held, no such instructions were necessary, because the dangers to which he was exposed were appanent, and known to the plaintiff as well as the master.

HON. C P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Suit by J. F. Dobbins against the Lookout Oil & Refining Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Affirmed.

W. D. Conn, for appellant.

The danger was obvious to any man of ordinary intelligence. If this were an adult, we do not think the declaration would be good; for the danger of being struck by the hammer and injured would have been reasonably apparent to such a man. But the party injured in this case was a mere lad. It is conceded that he was ignorant of any danger. Yet the court found from the declaration that the danger was obvious enough for "anybody of sufficient age to know anything about the law of self-preservation to foresee." The trial court appears to have left out of view the fact of appellant's youth.

All the courts seem to hold that consideration must be given to the tender age of an inexperienced employee, and that he is not in the same category with an inexperienced adult. 26 Cyc 1173.

As to the duty of the master to warn a youthful servant, see 18 R C. L., section 63, page 550, section 139, page 646; Labatt's Master and Servant (2 Ed. ), section 1317, page 3728. A very large number of illustrative cases are grouped under appropriate headings in a note under section 1318 of Labatt's Master and Servant, beginning on page 3730.

It might develope on the trial of the case on its merits that the appellant was of sufficient intelligence to have apprehended his danger, and that in view of this fact he might not be allowed to recover; but this was for the jury, under proper instructions from the court, and we, therefore, ask this court to reverse the decision of the trial court, and send the case back for a trial on its merits.

W. J. Lamb, for appellee.

The appellant, a young man of fifteen years of age, was put to work with another employee of appellee tearing up a concrete floor. The appellant was holding a chisel, about thirty or thirty-six inches long, while the other employee was striking the chisel with a sledge hammer so as to tear up the concrete, and while performing this work the sledge hammer missed the chisel and struck the appellant on the knee. The appellant seems to base his right of recovery in this case on the ground that he was a minor and inexperienced, and that the appellee had promulgated no rules nor given him any directions as to how this work should be performed.

The very principle contended for in this case was decided against the appellant in Tatum v. Crabtreet, 94 So. 449. What rule could have been promulgated, or what instructions given the the appellant, that would have given him any more information that he already had given him by nature, self preservation? All he was doing was holding the chisel. No amount of instructions could have given him any more information than he had, or made the place any safer for him to work. There was no complication whatever about this work, nor any dangerous position that either the appellant or the fellow servant was placed in. Railroad Co. v. Price, 72 Miss. 870.

The declaration in this case alleges that the appellant was fifteen years of age, but does not say that he was non compos or possessed of any less intelligence than the average fifteen year old boy. Worthington v. Goforth, 26 So 534, hold: "The presumption of fact is that he was possessed of that degree of intelligence which is common to boys sixteen years of age, and the presumption of law, in the absence of evidence to the contrary is that a boy of that age is capable of recognizing and appreciating such ordinary and patent danger as is incident to climbing or attempting to climb upon moving cars. 1 Bailey, Pers. Inj., sec. 2767. There is nothing in this record to rebut either of these presumptions." See also 26 Cyc., page 1174. Nothing could be said that would give either a fifteen year old boy or a grown man any knowledge or any dangers in the work that he was performing, more than the natural laws of human instinct gives you. The appellant is not entitled to recover and there was nothing to...