Lorden v. Stapp

• Court: Arizona Supreme Court
• Writing for the Court: BAKER, J.
• Citation: Lorden v. Stapp, 21 Ariz. 646, 192 P. 246 (Ariz. 1920)
• Decision Date: 24 November 1920
• Docket Number: Civil 1770
• Parties: J. P. LORDEN, Appellant, v. ANDREW STAPP, Appellee

192 P. 246

21 Ariz. 646

J. P. LORDEN, Appellant, v. ANDREW STAPP, Appellee

Civil No. 1770

Supreme Court of Arizona

November 24, 1920

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.

Mr. W F. Timmons, Mr. Henry C. Kelly and Mr. O. V. Willson, for Appellant.

Mr Thomas D. Molloy and Mr. Peter T. Robertson, for Appellee.

OPINION

BAKER, J.

This is an action for damages for personal injuries by a minor against his employer. Plaintiff recovered a judgment and the defendant appeals.

The complaint proceeds upon the theory that the relation of master and servant existed between the defendant and the plaintiff and that the defendant was negligent in putting the plaintiff to work using distillate in burning a pile of manure without instructing or informing the plaintiff as to the proper manner of handling and using said distillate, an inflammable and explosive oil, the plaintiff being young and inexperienced and wholly ignorant of the explosive qualities of distillate and the dangers incident to handling and using the same.

Plaintiff at the time of the accident, was fourteen (14) years of age. He had been working on the farm of defendant for about two (2) months, as a general farm hand. On the morning of the accident he was engaged, with his father, operating a Fresno scraper, leveling land. The defendant took him away from this work and directed him to burn a pile of manure in a distant part of the field with distillate, and while he was so engaged the can of distillate he was using exploded and he was badly burned. The burning of the manure with distillate was a hazardous and dangerous undertaking and the hazard and danger was well known to the defendant, but the plaintiff was unfamiliar with the use of distillate and was ignorant of the hazard and danger of burning manure with it; he was ignorant of the explosive qualities of the oil. Plaintiff testified that the defendant did not instruct him as to the proper method of using the distillate, nor did the defendant warn him of the dangers or the explosive qualities of the oil.

It is perhaps proper to say that this brief summary presents the evidence in a light most favorable to the plaintiff. Nevertheless, it is a statement borne out by the evidence, and from their verdict it is the view which the jury must have accepted.

Counsel for the defendant states in his brief:

"The issue in this case seems to revolve about one point only, and that is, according to the instructions of the court, that the defendant was liable because he failed to give the boy instructions, and that the plaintiff being a boy, the defendant was bound to give him instructions."

We think counsel for defendant is correct in the view he takes of the principal issue involved, the determination of which is necessarily conclusive of the under the circumstances enumerated in the foregoing synopsis of the evidence we think it was the duty of the defendant to inform the plaintiff of the hazard and danger attending the burning of the pile of manure with distillate and of the inflammable and explosive qualities of the oil, and his failure to do so was, as a matter of law, negligence.

In Bailey on Master's Liability for Injuries to Servants, pages 111, 112, the author says:

"If there are any dangers, either latent or patent, of which the master has knowledge, either actual or presumed, which the employee, either from his yout, inexperience, want of skill, or other causes, does not, or is presumed not to, understand or comprehend, they must be made known to him by the master. . . . The obligation is not discharged by informing the servant generally that th e service in which he is engaged is dangerous; and, more especially is this so when the servant is a person who neither by experience nor by education has, or would be likely to have, any knowledge of the perils of the business, either latent or patent. In such case the servant should be informed, not only that the service is dangerous, but of the perils of the particular place, and the particular or peculiar dangers that attend the service, if any. . . . So the negligence on the part of the master may consist solely in his failure of duty to instruct as to the perils known to him, or which he ought to know."

The court gave the jury the following instructions:

"It is the duty of one who employs a youthful and inexperienced servant, for a service attended with dangers which are known to the employer, but which are unknown to the servant, to explain to the servant the perils incident to the employment and to instruct him how to avoid them. And if you are satisfied by a preponderance of the evidence that the defendant employed Andrew Stapp, at a service attended with danger known to defendant and which was unknown to the plaintiff, and that the plaintiff was youthful and inexperienced in such employment and the means employed therein and that the defendant failed to explain to plaintiff the perils incident to the employment and to instruct him how to avoid them, then you ought to find for the plaintiff.

"You are instructed that before the plaintiff can recover in this action, you must be satisfied by a preponderance of the evidence that at the time of the accident the plaintiff was inexperienced in the handling and use of distillate and ignorant of its explosive qualities and properties, and that those facts were known to the defendant or should have been reasonably anticipated by defendant because of plaintiff's age, and that the defendant did not warn the plaintiff of the danger incident to the handling thereof.

"If you believe from all the evidence in this case that the plaintiff is a minor; but that he fully understood and appreciated, immediately prior to the accident, the danger incident to his handling and use of the material called distillate, then no duty was imposed by law upon the defendant, Lorden, to warn him of the dangers connected with the handling and use of distillate."

It is claimed by the defendant, as we understand his brief, that it does not necessarily follow that because appellant failed to warn and advise the plaintiff of the danger attending the burning of the pile of manure with distillate, the defendant was guilty of negligence; that negligence in that regard would depend upon whether the plaintiff knew and appreciated the danger without having it explained to him, and that the court should have embodied this question in the instructions, and not having done so, the instructions as given are erroneous. Of course, if the plaintiff knew and appreciated the danger, the defendant could not be legally held for negligence because of his failure to warn and advise the plaintiff of the danger. This is elementary law. Bailey on Master's Liability for Injuries to Servants, p. 118, and cases cited in note.

It is apparent that the defendant is mistaken in the view he takes of the instructions. The instructions do embody the proposition that before the plaintiff could recover he must have been ignorant of the hazards of the work he was undertaking and of the explosive character of distillate. His knowledge and appreciation of the danger are negatived. In other words, the instructions informed the jury that if plaintiff knew and appreciated the danger, the defendant could not be legally convicted of negligence. It is further claimed by the defendant that the instructions are faulty in that the proposition that the plaintiff must have been young and inexperienced and ignorant of the explosive qualities...