Hercules Powder Co. v. Williamson

• Decision Date: 25 October 1926
• Docket Number: 25814
• Citation: 145 Miss. 172,110 So. 244
• Court: Mississippi Supreme Court
• Parties: HERCULES POWDER CO. v. WILLIAMSON. [*]

110 So. 244

145 Miss. 172

HERCULES POWDER CO. v. WILLIAMSON. ^[*]

No. 25814

Supreme Court of Mississippi

October 25, 1926

Division B

Suggestion of Error Overruled Nov. 22, 1926.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Lee Williamson against the Hercules Powder Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Hannah & Simrall, T. J. Wills and H. Cassedy Holden, for appellant.

The appellee was hired and paid to bore holes in pine stumps, to put charges of dynamite in these holes with caps and fuses attached, to light the fuses and to blow these stumps out of the ground. In blowing these stumps out of the ground they would burst to pieces and chunks of wood would be hurled through the air for four, five or six hundred yards. This was the general method of conducting the operation. The law everywhere, Mississippi not excepted, is that the plaintiff assumed the risk of being struck by a piece of this flying wood. Certainly, he did not assume this risk of being struck by this piece of wood if it was due to the negligence of the master. There is no argument about this proposition. The error on the part of the trial court was in failing to distinguish between a dangerous operation and a negligent operation.

"The general rule that the servant assumes the risks ordinarily incident to his employment applies, although the work is of a peculiarly hazardous character. The dangerous nature of the service adds nothing to the liability of the master." 39 C. J., page 709, section 909. Among other cases cited to support the above text is Y. & M. V. R. R. Co. v. Hullum, 119 Miss. 229, 80 So. 645.

All of the acts of negligence laid to the defendant by the plaintiff vanished except the complaint that the fuses were not long enough to permit the plaintiff to light the fuses and then get beyond the range of the flying stumps. In other words the complaint is that the Hercules Powder Company in hiring the plaintiff to perform a dangerous piece of work should have provided him with absolute protection against its dangers. Such is not the law. 39 C. J. 740, sections 944-45.

If the contentions of the plaintiff had been the law, the Y. & M. Railroad Company would have been liable to Hullum because they employed him in a hazardous undertaking and if such had been the law, the Cumberland Telephone & Telegraph Company would have been liable in the case of Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824.

We are not unmindful of what our court has had to say about the use of dynamite in Evans v. Brown, 106 So. 291; McTighe, etc., v. Johnson, 114 Miss. 862, 75 So. 600; Hamblin v. Gano, 76 So. (Miss.), 633.

The case at bar falls squarely within the exceptions in Evans v. Brown, in that the plaintiff was engaged in the blasting work himself and the injury flowed from the very work in which he was engaged. If Lee Williamson is entitled to a judgment against the Hercules Powder Company in this case, then the Hercules Powder Company cannot carry on the business of blasting stumps and operating its machinery without becoming liable to every man who works for it. The use of dynamite and the operation of machinery is dangerous. Breaking a young mule to ride or plow is dangerous. If the Hercules Powder Company is liable to Lee Williamson because it hired him to engage in a dangerous piece of work, then by the same rule, every farmer would become liable when he hired a man to break his mule or to plow; and by the same rule of logic you could not employ a man to operate a locomotive or to drive an automobile without becoming liable for damages in case he was injured.

The case should he reversed and dismissed.

H. Cassedy Holden, also for appellant.

I. The employee assumes the ordinary risks of the particular employment although such risks may be more hazardous in one occupation that in another. R. R. Co. v. Dees, 121 Miss. 439, 83 So. 613.

We say that no negligence was shown on the part of the master toward the injured servant. The evidence here goes no further than to show that the methods of blasting were extra-hazardous; but "extra-hazardous methods" are far from being "negligent methods." There are many operations that are necessarily extra-hazardous and this fact does not increase or magnify the duty of the employer toward his employee engaged in such work. Moreover, the plaintiff utterly failed to show that some other method of blasting was less dangerous and equally available to the defendant.

Another case which is even more in point is Austin et al. v. R. R. Co., 134 Miss. 226, 98 So. 3. See also 18 R. C. L., page 678, paragraph 168. It was error for the court to grant the instructions for the plaintiff which appear in the record. These instructions are absolutely contrary to the law as announced in the Dees and Austin cases cited above and other authorities pointed out and set forth in the briefs for the appellant.

II. Negligence of the Hercules Powder Company. As to the duty of the master to the servant employed in blasting operations, the court held in Evans v. Brown, 106 So. (Miss.), 281, that the servant assumes the risk of the great dangers involved in such operations when he enters the employment of the master with the full knowledge of the extra-hazardous nature of the work, provided always the master is not negligent.

In this case the plaintiff charged that the master was negligent; but the evidence adduced by the plaintiff failed to sustain any of these charges of negligence. This evidence showed that there was no negligence in failing to furnish fuses of sufficient length; or in causing the stumps to be overcharged with dynamite; or in increasing the charge of dynamite without notice to the plaintiff; or in requiring that about one hundred stumps be charged with dynamite; or in failing to supply "good" dynamite and standard materials for use in the blasting; or in failing to supply the proper tools and appliances for the work. The plaintiff's declaration made a number of charges of negligence and then the plaintiff's evidence absolutely and utterly failed to sustain these charges.

The plaintiff having thus completely failed to sustain the cause of action set up in the declaration, finally took the ultimate position that the law required the defendant to so conduct and carry on its blasting operations as to provide and guarantee absolute safety to its employees engaged in such operations. But this is not the law. To the contrary, this theory and position of the plaintiff as to the duty of the defendant is diametrically opposed to all law and precedent applicable to such cases.

One employed to charge and explode stumps with dynamite is bound to know that there will be danger to him from flying fragments. It is not an extraordinary risk of the employment, it is an ordinary risk of that particular employment. Under the doctrine that the employee assumes the ordinary risk of his employment, one who engages in the work of blasting assumes the ordinary risks of such employment, among which is the danger of flying particles or pieces cast up by such explosions. Brotzki v. Wisconsin Granite Co. (Wis.), 125 N.W. 916; King v. Morgan, 49 C. C. A. 507, 109 F. 446; Browne v. King, 4 C. C. A. 445, 100 F. 565; Hutchinson v. Parker & Co., 57 N.Y.S. 158; Nordstrom v. R. R. Co. (Wash.), 104 Pa. 809; Smith v. Oxford Iron Co. 36 Am. R. (N. J.), 535; Falls v. Pine Mt. Granite Co., 97 S.E. (Ga.), 114.

The following additional authorities are submitted on the proposition that it is the general rule, constantly reiterated and applied by the courts that the master cannot be charged with a breach of the duties owed to his servants simply on the ground that a safer method or a safer instrumentality than that from which the injury resulted was available and might have been adopted by him. See Chrismer v. Bell Tel. Co., 6 L. R. A. (N. S.) 492 and note; Dynen v. Leach, 26 L. J. Exch. (N. S.) 221; Medley v. American Car & Foundry Co., 140 Ill.App. 284; Ventriss v. Pana Coal Co., 155 Ill.App. 152; Parlett v. Dunn, 46 S.E. (Va.), 467; Northern C. R. R. Co. v. Husson, 47 Am. Rep. (Pa.), 690; Glover v. Meinrath, 34 S.W. (Mo.), 72; Muirhead v. Hannibal & St. John R. R. Co. (1988), 31 Mo.App. 578 (former appeal, 1885, 19 Mo.App. 534); Young v. Va. & N. C. Constr. Co. (1891), 109 N.C. 618, 14 S.E. 58; Innes v. Milwaukee (1898), 96 Wis. 170, 70 N.W. 1064; Chicago & G. W. R. R. Co. v. Armstrong (1895), 62 Ill.App. 228; Chicago, R. I. & P. R. R. Co. v. Lonegan (1886), 119 Ill. 41, 7 N.E. 55; Rush v. Missouri P. R. R. Co. (1887), 36 Kan. 129, 12 P. 582; East St. Louis Ice & Cold Storage Co. v. Sculley (1895), 63 Ill.App. 147.

And the appellant submits the following additional authorities on the proposition that the servant assumes the risk of injury, not only from the perils ordinarily existing because of the particular means or method used by the master in conduct of his business. Laverty v. Hambrick (1907), 61 W.Va. 687, 57 S.E. 240; Burnham v. Concord & M. R. R. Co. (1896), 68 N.H. 567, 44 A. 750; Hayden v. Smithville Mfg. Co. (1861), 29 Conn. 548; Rush v. Mo. P. R. R. Co. (1887), 36 Kan. 129, 12 P. 582; Simmons v. Chicago & T. R. R. Co. (1884), 110 Ill. 340; Richards v. Rough (1884), 53 Mich. 212, 18 N.W. 785.

Paul B. Johnson, for appellee.

The court properly submitted the case to the jury for its determination on the question of negligence. The declaration shows and alleges that the appellant used dynamite in its business for the purpose of blasting stumps out of the ground, and that dynamite is a powerful and dangerous explosive, and that the appellant, therefore, owed the appellee the highest degree of care in such use of the same. It shows...