Mitchell v. Brooks

• Decision Date: 24 April 1933
• Docket Number: 30594
• Citation: 165 Miss. 826,147 So. 660
• Court: Mississippi Supreme Court
• Parties: MITCHELL v. BROOKS et al

147 So. 660

165 Miss. 826

MITCHELL v. BROOKS et al

No. 30594

Supreme Court of Mississippi

April 24, 1933

Division B

1. MASTER AND SERVANT.

Electric light incased in steel mesh frame, used by garage employee held "simple appliance" within rule requiring master to furnish sale tools and appliances.

2. MASTER AND SERVANT. Allegations of garage, employee's declaration for injuries sustained when light incased in mesh frame fell on battery, causing sparks which ignited or exploded gasoline in pan, held insufficient to state cause of action.

Declaration alleged in substance that garage employee, in cleaning parts of automobile, washing off grease, etc., was furnished with electric light incased in steel mesh frame, and with high-grade gasoline in a pan; that the hook on top of the frame inclosing the light had been broken off; that this defective equipment furnished was an unsafe and dangerous appliance; that the light bulb fell on the battery, creating a short circuit and causing sparks to fall into the pan of gasoline and ignited or exploded it, resulting in severe burns to the employee; that first class garages provided other means of cleaning parts of automobile, but that employers failed and refused to perform their duty in that regard.

3. MASTER AND SERVANT.

Employer is not required to use latest and safest appliances and equipment.

4. MASTER AND SERVANT.

Employer is only required to furnish reasonably safe place and reasonably safe appliances, equipment, tools, etc.

HON WM. A. ALCORN, Judge.

APPEAL from circuit court of Bolivar county HON. WM. A. ALCORN Judge.

Suit by Hollis Mitchell against Douglas Brooks and another copartners doing business as Brooks & Mcpheeters. From a judgment in favor of the defendants, the plaintiff appeals. Affirmed.

Affirmed.

W. B. Alexander, Jr., of Cleveland, and C. C. Pace, of Pace, for appellant.

The master is not required to furnish the newest, safest, and best machinery, appliances, and places for work but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view. But in all occupations attended with great and unusual dangers, there must be used all appliances readily attainable for the prevention of accidents, and the neglect to provide such appliances is proof of culpable negligence.

39 C. J. 326, sec. 447B.

In the performance of the obligations imposed by law upon the master it is essential that regard should be had not only to the character of the work to be performed but also to the ordinary hazards of the employment; and the servant may assume that the master has performed such duty.

26 Cyc. 1097.

The employer's obligation of care extends as a general rule to all tools, machinery, and appliances that may be furnished for the use of the employee in the discharge of his duties; and for any neglect of this duty the employee may hold the employer liable in damages. The employee has a right to rely upon the performance of this duty by the employer and to govern his actions accordingly.

18 R. C. L. 587, sec. 91; White v. Railroad Company, 72 Miss. 12, 16 So. 248.

In cases where the tools are simple the servant has an equal opportunity with the master to ascertain any defect and consequently in regard to such simple tools the rule does not apply.

Parker v. Wood Lumber Co., 98 Miss. 750, 54 So. 252; Allen Gravel Co. v. Yarbrough, 98 So. 117.

An electric light bulb encased in a steel mesh frame and attached to a long cord designed for a hook or fastener to be attached to the frame could not be classed as a simple tool.

The general rule requiring the master to provide reasonably safe and suitable machinery has also been applied in cases where injuries were sustained while using the following appliances and machinery; brakes and component parts thereof such as brake chains, brake beams, brake pins, brake staffs, and brake wheels, bents, boilers, cables, chains, coal of inferior quality, cranes, derricks, engines, fans, flanges, gearing, hame straps, hammers hooks, horses, hose, pipes, ice tongs, kettles, ladders, lanterns, mauls, pile drivers, poles, reefing pennants, rollers, ropes, shafts, skids, shaper heads, tackles, trucks, turntables, unguarded machinery, wagons, windlasses, wires of defective insulation, and wringers.

20 Am. & Eng. Ency. of Law (2 Ed.), pp. 82, 83, 84.

It is not understood that any authority favors the contention that an employer may knowingly subject his employees to danger from obsolete methods or instrumentalities. On the contrary, when safer appliances have come into general use, it is said to be negligence per se for the employer to continue to employ the instrumentalities that have been superseded.

18 R. C. L. 589.

It is a well known fact that all explosives are more or less dangerous and that high explosives of modern invention are liable to accidental ignition with destructive consequences even when causes are not discernable and though reasonable care is exercised to prevent such an occurrence.

11 R. C. L. 653, sec. 30.

A master who is engaged in the business of manufacturning or storing explosives, or who employs dynamite or other explosives as instrumentalities in carrying on his business must exercise a degree of care for the safety of his servant commensurate with the danger reasonably to be anticipated, and a failure to discharge his duty in this respect constitutes negligence.

39 C. J. 339, sec. 460.

Where one method is a safe method and the other method an unsafe method the question of whether the master failed to furnish a safe place to work is for the jury.

Hardy v. Turner-Farber-Love Company, 101 So. 489.

A servant is only bound to see patent, not latent, defects; mere knowledge of defects will not bar recovery for resultant injury unless accompanied by knowledge that they are necessarily dangerous; and he has a right to rely on the superior knowledge and judgment of his master, and to act on the assumption that the latter will not expose him to evitable risk, and has taken proper precaution to guard him from danger.

Farin v. Sellers, 3 So. 363; Wood on Master and Servant, 681, 738, 739, 763; 2 Thompson on Negligence, 975; Wharton on Negligence, sec. 215.

The servant does not assume the risk of negligence of the master in failing to furnish him a reasonably safe place to work, or a reasonable safe instrumentality with which to work. The risk that the servant assumes is the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant.

Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330.

Our Legislature in 1914 abolished the doctrine of assumption of risk by an employee when the master is negligent except as to conductors or locomotive engineers.

Sec. 513, Code of 1930.

Where an electric spark caused a gasoline explosion to the injury of the servant using the combustible substance the master was held liable.

Alabama Power Co. v. McIntosh, 122 So. 677.

As to the degree of care imposed upon the master in the use of explosives, it is the settled law in Mississippi that the degree of care required is of the highest.

Evans v. Brown, 106 So. 281, 141 Miss. 346; McTighe et al. v. Johnson, 75 So. 600, 114 Miss. 862; Hamblin v. Gano, 76 So. 633; Hercules Powder Co. v. Williamson, 110 So. 244, 145 Miss. 172; Hercules Powder Co. v. Wolfe, 110 So. 842.

Jno. T. Smith, of Cleveland, for appellees.

The light and its frame and fastenings are a simple tool, and the master is not liable to the servant for the...