E. I. Dupont De Nemours & Co v. Brown

• Decision Date: 20 January 1921
• Court: Virginia Supreme Court
• Parties: E. I. DUPONT DE NEMOURS & CO. v. BROWN.

105 S.E. 660

E. I. DUPONT DE NEMOURS & CO.

v.BROWN.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Error to Circuit Court, Prince George County.

Action by A. L. Brown against E. I. Dupont de Nemours & Co. To review judgment for plaintiff, defendant brings error. Affirmed.

Plummer & Bohannan and Bernard Mann, all of Petersburg, for plaintiff in error.

R. H. Mann, of Petersburg, for defendant in error.

PRENTIS, J. A. L. Brown, a laborer, while employed by E. I. Dupont de Nemours & Co., was injured by having his feet and legs burned by the refuse liquid acid in the place designated in the record as the "niter cake dump, " or "salt cake bed, " or "basin, " in plant A. A jury found a verdict in his favor, upon which the court entered judgment, and of this the company is here complaining.

There are two assignments of error—one that the court erred in refusing to give certain instructions asked for by the company, as well as in giving over the company's objection certain instructions asked for by the plaintiff; and the other that the verdict is contrary to the law and the evidence.

As to the instructions, it appears that the court gave 12 upon motion of the company, which fully cover every detail of the defenses relied on and are quite as favorable to the defendant as was proper; indeed, they embody every proposition of law which is now urged upon this court as a reason for reversing the judgment. The only change made by the trial court in any of these 12 instructions was that made in the tenth. As offered, it read thus:

"The court instructs the jury that, if they believe from the evidence that a person of ordinary prudence whose mental and physical powers and whose opportunities for observing the conditions by which he was surrounded and the facts indicative of danger were the same as those of the plaintiff would have realized the risks and dangers of working around the salt cake basin, then the plaintiff himself must be held to be chargeable with knowledge of the conditions which caused the injury and of the risks incident thereto.

"If you believe from the evidence that the plaintiff knew or that he should have known of the danger of working around the salt cake basin, he must be held to have assumed the risk of working there, and he cannot recover."

The court amended it by striking out, in the first paragraph, immediately following the word "knowledge, " these words, "of the conditions which caused the injury and of the risks incident thereto, " and substituted therefor the word "thereof, " so as to make the latter part of that clause read, "then the plaintiff himself must be held to be chargeable with knowledge thereof."

As already stated, every defensive theory of the company which the evidence jus-tified was concretely presented by the numerous instructions given for the defendant, read as a whole. The company insisted during the entire trial that the plaintiff should not recover because he had assumed the risk of such an injury, but the court properly refused to take this question from the jury. It, however, denied the company no right, but clearly presented in the instructions this view of the defendant. It is apparent that the jury did not so find, because they did not believe the evidence justified such a conclusion. No objection is perceived to the instruction No. 10 as amended.

The assumed risk doctrine was also fully covered by other instructions.

Instruction V, given upon motion of the plaintiff, reads thus:

"The court instructs the jury that the care and diligence required of the master to provide and maintain a reasonably safe place in which his servant may perform his work is such as a reasonably prudent man would exercise under like circumstances to protect his servant from injury, having in view the character of the service required and the dangers, if any, to be apprehended by a reasonably prudent man in the exercise of ordinary intelligence and care and extends to every portion of the place in which the master's business is conducted from which danger is reasonably likely to result in the servant's injury, unless ordinary care is used for his reasonable safety. Such duty on the part of the master must be continuously fulfilled and positively performed; and if the master neglects this positive duty, and the servant, without fault on his part, is injured as a proximate result of such neglect, the master is liable for damages, unless you further believe from the evidence that the plaintiff assumed the risks incident to his employment, as explained in another instruction in this case."

Exception is taken to this upon the ground that it is confusing with reference to the duty devolved, and an effort is made to distinguish between the particular place at which this accident occurred (i. e., a place in the plant of the company variously estimated by opposing witnesses at from four to eight feet wide, separating the railroad track and the niter cake basin), and a permanent place of work in a factory or shop. It is conceded in argument that it might not be improper to give such an instruction if the place of the injury were such a permanent place of work in a factory or shop; and special emphasis is laid on the fact that the jury are told that the duty with reference to providing a safe place "extends to every portion of the place in which the master's business is conducted from which danger is reasonably likely to result in the servant's injury." We do not think that there is any reason to suppose that the jury were misled by this instruction. The place referred to in the evidence is fully identified, and is the narrow strip of ground between the niter cake basin and the railroad car, at which the plaintiff was engaged in loading the heavy iron wheels. That it was the duty of the company to keep such a place within its plant reasonably safe for its employees while working there in obedience to proper orders is...