Evans v. Brown

• Decision Date: 14 December 1925
• Docket Number: 25313
• Citation: 106 So. 281,141 Miss. 346
• Court: Mississippi Supreme Court
• Parties: EVANS v. BROWN. [*]

106 So. 281

141 Miss. 346

EVANS v. BROWN. ^[*]

No. 25313

Supreme Court of Mississippi

December 14, 1925

Division B

APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.

Action by Rosie Evans against J. E. Brown. Judgment for defendant and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Huff &amp Lee, for appellants.

The trial court says that the facts of this case cannot be said to constitute any kind of negligence, but declares such facts wholly exonerated appellee from any blame. We submit that such cannot be the law. All of the courts of the land have recognized the inherent danger of such explosives as dynamite and have laid down a rule for those who use such a dangerous agency, which rule requires the exercise of the highest degree of care. This court has subscribd to such principle in Hamblin v. Gano, 76 So. 633. See, also, 25 C. J. 192; Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778, 7 L. R. A. (N. S.) 545; Raferty v. Davis, 260 Pa. 563 and 566, 103 A. 951.

Since under section 504, Hemingway's Code, there is no assumption of risks where an employee is injured as a result of the negligence of his employer, either in whole or in part, it follows, as above stated, that appellee was under the same duty to Evans as he would have been to any other person. 25 C. J., pages 192, 193. All of this danger could have been obviated if the work had been stopped for only a few minutes. While appellee says it was not practicable to do that, yet it does appear that by the loss of only a few minutes such a tragedy could never happen. See Beauchamp v. Saginaw Min. Co., 50 Mich. 163, 15 N.W. 65, 45 Am. Rep. 30. Certainly, the duty devolved upon appellee to give the deceased sufficient warning to enable him to get to a place of cover.

This kind of case does not seem to have been passed upon by this court; evidently because Mississippi is largely an agricultural state. No mining operations are carried on within its borders and, consequently, there is very little blasting; hence, the citation of so many authorities from other states. We submit, however, that I. C. R. R. Co. v. Schultz, 39 So. 1005, is in point. In that case, a torpedo, admittedly a dangerous explosive, was placed on the railroad track after a wreck to give warning to other approaching trains; and Schultz was walking either along the track or the road nearby when a train of the appellant company ran over the torpedo, exploding it and causing an injury to him. In that case liability was affirmed.

In the present instance we have a man well experienced in the use of dangerous explosives; he is cognizant of the damage which they can work; he employs this agency about his work; knowing the danger of it, he adopts a custom of shooting it two thousand feet away from his men, indeed a wise rule and custom. But he has his men assembling his dredge boat and for some reason he failed to have the stumps near by blown out, notwithstanding the right of way had been cleared out for two or three miles. He wants to have them blown, but instead of ceasing work around the boat for a few minutes and letting his men get to a place of safety, with the consequent loss of a very short time, he sends his dynamite shooter to blow stumps as close as two hundred and forty feet to his men who are working around the boat, although he well knew that frequently parts of stumps had been thrown at least two hundred yards.

We submit that if ever a case can be stated where, as a matter of law, liability is established because of negligence per se, then this is such a case.

Watkins, Watkins & Eager, for appellee.

I. When the evidence neither proves or tends to prove liability on the part of a defendant, or where the facts shown in the evidence and all the inferences from those facts, make it clear that plaintiff's own negligence produced the injury, then the question is for the court alone. McMurtry v. L., N. O. & T. R. R. Co., 67 Miss. 601; I. C. R. R. Co. v. Fowler, 123 Miss. 826, 86 So. 460.

II. The measure of care required of the master in the use of explosives is ordinary care. 26 Cyc. 1112, sec. 4.

III. Where the conditions of the place of work are constantly changing the rule requiring the employer to make the place of work safe does not apply. Cybur Lumber Company v. Erkhart, 118 Miss. 401, 79 So. 235; Austin v. Mobile & O. R. Co., 134 Miss. 226, 99 So. 3; Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.

IV. This was a case of pure accident. See Ragland v. Native Lumber Co., 117 Miss. 602, 78 So. 542; Austin v. M. & O. R. Co., 134 226, 99 So. 3.

V. The degree of care required in the handling of explosives is reasonable care. Cary Bros. & Hannon v. Morrison, 129 F. 177, 180, 65 L. R. A. 659; Smith v. Day, 100 F. 244, 49 L. R. A. 108.

A person doing work in a public place for the benefit of the public, under legislative and municipal authority, cannot be held for negligence if the work is carefully done, although the work is dangerous in its character. Booth v. Rome, W. & O. T. R. Co., 140 N.Y. 267, 24 L. R. A. 105; Benner v. Atlantic Dredging Co., 134 N.Y. 156, 17 L. R. A. 220; Murphy v. Lowell, 128 Mass. 396, 35 Am. Rep. 381; Dodge v. Essex County, 3 Met. 380; Tiedman, Municipal Corporations, 329, and cases cited.

VI. The master is not obliged to use more care for the employee's safety than the employee is expected to use on his own account. Bertha Zinc Company v. Martin, 93 Va. 791, 70 L. R. A. 999. See, also, 3 Labatt's Master and Servant, sec. 920.

VII. The master not guilty of negligence where appliance is in common use. 3 Labatt's, Master and Servant, par. 939; 26 Cyc. 1097; 1102, 1107.

VIII. The master is not an insurer of the safety of his servant. 3 Labatt's Master and Servant, par. 919; Howard v. Railroad Co., 50 Miss. 178; Kenty v. R. R. Co., 77 Miss. 494; R. R. Co. v. Wooley, 77 Miss. 927; So. R. R. Co. v. McClelland, 80 Miss. 700; Matthews v. R. R. Co., 93 Miss. 325.

IX. The master has a right to assume that servants will use reasonable care for their own safety. 3 Labatt's Master and Servant, par. 925.

X. Where the dangers of a place of work arise from changing conditions with the progress of the work, the master is under no duty to provide a safe place to work. Dunn v. Great Lakes Dredge & Dock Co., 161 Mich. 551, 126 N.W. 833; Bennett v. Crystal Carbonated Lime Co., 146 Mo.App. 565, 124 S.W. 608; Morgan v. Wabash R. Co., 158 Ill.App. 344; 18 R. C. L., par. 96; Case note to Citrone v. O'Rourke Engineering Co., 188 N.Y. 339, 80 N.E. 1092, 19 L. R. A. (N. S.) 340; American Bridge Co. v. Seedes, 144 F. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041.

The positive duty of the master does not extend to making and keeping a place reasonably safe where the work is such as to make a reasonably safe place dangerous, or an obviously dangerous place safe, such as in blusting rocks, tearing down structures, and removing superincumbent masses. Finalyson v. Utica Min. & Mill Co., 14 C. C. A. 492, 67 F. 507; Gulf, C. & S. F. R. Co. v. Jackson, 12 C. C. A. 507, 65 F. 48; Florence & C. C. R. Co. v. Whipps, 70 C. C. A. 443, 138 F. 13, Mhoon-Anchor Consol. Gold Mines v. Hopkins, 49 C. C. A. 347, 111 F. 298.

XI. The decedent had a perfectly safe method provided for the performance of his duties and voluntarily, and without necessity sought a place of danger. Hinton Bros. Lumber Company v. Polk, 117 Miss. 300; J. J. Newman Lumber Co. v. Dantzler, 107 Miss. 31, 64 So. --; Ovett Land & Lumber Co. v. Adams, 109 Miss. 740; Buckeye Cotton Oil Company v. Saffold, 125 Miss. 407.

The proof in this case showed that the employee who was dynamiting the stumps was close enough to the boat to be heard, and before lighting the fuse, he gave the usual signal, "Fire in the hole;" that this signal was intended to notify the men to get out of the way because there would be an explosion; that a perfectly safe place was provided for them to go; that the boat was covered with a roof and all they had to do was to go under there; that the signal was evidently heard because the other men got under the roof; that the decedent evidently heard the warning because he got off the boat and went off some twenty feet, instead of remaining there in a place of safety. It is true that Mr. Brown did not hear it, but he states that he was on the back of the boat, engaged in some work which made considerable noise.

The appellee was not an insurer of the safety of the decedent, but in view of all the circumstances and facts was merely under the duty to exercise reasonable care to provide him with a safe place to work.

We submit that the case should be affirmed.

Argued orally by Percy Lee, for appellant, and Wm. H. Watkins, for appellee.

OPINION

ETHRIDGE, J.

The appellant brought a suit for the death of her husband, who was killed in the employ of the appellee. The appellee was a contractor engaged in cutting a drainage canal, and it had the right of way cleared for a considerable distance and had brought the dredge boat machinery for the dredging operation upon the premises, and it was being set up by a crew of men in which the appellee himself was engaged, and another employee of the appellee was engaged in blasting stumps from the right of way, and the injury to the deceased was caused by a fragment of the stump being hurled through the air to a great height and falling upon the head of the deceased, crushing his skull.

The plaintiff introduced the defendant, who testified that generally he kept the dynamiting crew at a considerable distance from the dredging boat and dredging operations; that he did this because it was dangerous to the employees because in blasting stumps sometimes the debris would be thrown a...