Martin v. Beck

• Decision Date: 07 December 1936
• Docket Number: 32402
• Citation: 177 Miss. 303,171 So. 14
• Court: Mississippi Supreme Court
• Parties: MARTIN v. BECK

171 So. 14

177 Miss. 303

MARTIN v. BECK

No. 32402

Supreme Court of Mississippi

December 7, 1936

Division B

1. MASTER AND SERVANT.

Servant cannot recover for injuries sustained by use of dangerous method of doing work which he has chosen in preference to safe method furnished by master, since the servant's own negligence is the cause of his injuries.

2. MASTER AND SERVANT.

Servant who performs at night task which is dangerous when performed at night, but which could be done safely during daylight hours of employment, does so at his own risk.

3 TRIAL.

Instruction should not be refused because not drawn with technical precision, if sufficient in meaning to be understood by jury.

4. MASTER AND SERVANT.

Where night watchman was burned when gasoline splashed on kerosene lantern while he was filling machinery tanks "suggestion" that he perform certain other tasks upon going to work at six P. M. was not "order" or "command" such as required him to incur danger by postponing filling of tanks until after dark.

5. MASTER AND SERVANT.

In action against employer for burns from splashing of gasoline on kerosene lantern while night watchman was filling machinery tanks, evidence that watchman was ordered to perform certain other tasks first upon going to work at six P. M. would not justify refusal to instruct on assumption of risk for failure to fill tanks in daylight hours of employment, where watchman could have filled tanks after dawn of following day.

HON. S F. DAVIS, Judge.

APPEAL from the circuit court of Sunflower county HON. S. F. DAVIS Judge.

Action for negligence by George E. Beck against W. D. Martin. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Shands, Elmore, Hallam & Causey, of Cleveland, for appellant.

Beck knew, and so stated, that he, and everybody knew, that it was exceedingly dangerous to handle this gasoline in close proximity to fire, or this lantern, and that the danger was obvious; that he knew such was likely to cause a fire or explosion; that he had sense enough to know that. Every witness testifying for plaintiff, who was asked the question, agreed with Mr. Beck on this score.

Appellant submits that on the matter of the danger of an explosion or igniting of the gasoline by the lantern or fire in close proximity thereto, was known in the same manner, and to the same extent, and as well, by Beck, as it was to the defendant, appellee, herein; that there was nothing connected with this dangerous situation which the defendant appellant knew, or could know, that Beck himself did not know or could have known.

There was nothing complex about this situation, therefore, no necessity for the master to promulgate and enforce any rules or regulations there about.

Tatum v. Crabtree, 130 Miss. 462.

In order for section 513, Code of 1930, to be applicable the master must be negligent. There can be no negligence unless a duty rested upon the master, which was breached.

The rule is that if the servant has as much knowledge about the tool as does the master, then there is no duty and there is no liability if the tool is defective, because no duty arose, and there could be no breach of the duty which could give rise to a cause of action.

Allen Gravel Co. v. Yarbrough, 133 Miss. 652; Jones v. United Ice Co., 167 Miss. 886; Mitchel v. Brooks, 165 Miss. 826.

Where the simple tool doctrine applies, section 513 is held not to abolish the assumption of risks.

Allen Gravel Co. v. Yarbrough, 133 Miss. 652.

Appellant submits that the theory and doctrine of the simple tool applies and controls here; that no duty rested upon the defendant in this case; that if no duty rested upon him, there could be no legal breach of any duty; that if there was no duty, there could be no negligence, and that section 513 does not apply; that, therefore, as Beck, when he began his job, knew and appreciated the danger, he assumed all risks incident thereto.

If no duty rested upon defendant, the peremptory instruction or directed verdict should have been given.

Beck should not have undertaken to pour the gasoline at night, even under direct orders. Appellant submits that the danger incident to pouring gasoline from the drum into the bucket in close proximity to the lighted lantern was a danger which was manifest and obvious to the plaintiff, and would be to any man of ordinary sense. It is a matter of general and common knowledge that high test gasoline in close proximity or contact with a flame or a surface heated to a high temperature, is likely to ignite or explode. We believe that the court will take judicial notice of this, as it is a matter of such common knowledge.

Brown v. Coley, 168 Miss. 778.

Appellant submits that it is the law in this state that where a servant is employed to discharge certain duties and furnished certain appliances or tools to discharge these duties, and the servant is in complete command and control of the details of how he shall discharge these duties, and there is a safe way or method in which the duties may be discharged by said servant with those tools and appliances, but instead of following the safe method, the servant selected an unsafe method, and as a result of the selection of the unsafe method in doing the duties he is injured, then there is no liability on the master for such injury.

Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407; Stokes v. Adams Newell Lbr. Co., 151 Miss. 711; Ovett Land Co. v. Adams, 109 Miss. 740; Yellow Pine Co. v. Clark, 163 Miss. 661.

The plaintiff's own neglect was the proximate cause of his injury.

R. D. Everitt, of Ruleville, for appellee.

The simple tool proposition can have no bearing in this case.

The nearest rule applicable may be found in Hercules Powder Co. v. Tyrone, 155 Miss. 75, the syllabus (3) being: "Hose attached to boiler of locomotive for purpose of cleaning locomotive could not be classed as 'simple tool,' and the doctrine of simple tools did not apply where engineer was injured by hot water and steam when nipple slipped off."

This well considered case is authority for the rule that appellee did not assume the risk of his employment around this dangerous agency of gasoline, as he was directed by the master to work as he was at the time he was injured.

The master must use the highest degree of care in the possession and use of dangerous explosives, not only in the conduct of its business, but in the method and plan of carrying on the business, and the doctrine of assumption of risk has no application of injuries to servants from explosives, because of master's failure to exercise proper degree of care.

Hercules Powder Co. v. Williamson, 110 So. 244.

The servant does not assume the risk of the negligence of the master in failing to furnish him a reasonably safe place to work, or a reasonably safe instrumentality with which to work.

Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284.

The risk that...