Murray v. Natchez Drug Co.

• Decision Date: 23 October 1911
• Docket Number: 15142
• Citation: 100 Miss. 260,56 So. 330
• Court: Mississippi Supreme Court
• Parties: MRS. IDA MURRAY v. NATCHEZ DRUG COMPANY

56 So. 330

100 Miss. 260

MRS. IDA MURRAY v. NATCHEZ DRUG COMPANY

No. 15142

Supreme Court of Mississippi

October 23, 1911

APPEAL from the circuit court of Adams county, HON. M. H. WILKINSON Judge.

Suit by Ida Murray for the death of her daughter, against the Natchez Drug Company. From a judgment for defendant the plaintiff appeals.

The appellant brought an action against the appellee for damages for the death of her daughter, who was employed by the appellee in its wholesale drug store. Appellee's business was conducted in a large five-story brick building, in one part of which was a chemical laboratory. A large number of persons were employed in the building, which was destroyed by an explosion in which several of the employees were killed among the number being appellant's daughter. The declaration alleges in one count that the explosion was caused by the negligence of the appellee in permitting the building to become filled with escaping gas, which became ignited. Another count of the declaration charges the careless and negligent handling by appellee's employees of dangerous explosives, such as nitroglycerine or dynamite. The court gave a peremptory instruction for the defendant from which an appeal is taken.

Reversed and remanded.

Charles F. Engle, for appellant.

The duty of the appellee to provide a safe place to work, and to keep it safe, was not only non-delegable, but a continuing one. The duty of the appellee in this respect called for constant, never-ceasing vigilance. The appellee should have rendered the place of work safe, even if to do this required the closing of the laboratory or even the entire building. So. Ry. Co. v. Wiley, 88 Miss. 825, 41 So. 511; Kneale v. Lopez & Jukate, 93 Miss. 201, 46 So. 715.

In 7 Am. and Eng. Ann. Cases, 458, the duty of the master in this respect is presented ably and well, though the rule res ipsa does not seem to have been invoked. A distinction also is drawn between cases of naked conjecture and those of reasonable probability.

The appellee itself introduced the gas into the building; it knew that the gas was leaking; that the plumber's assistant could not remedy the trouble, as he had tried several times and failed; it made no inspection adequate to the demands the imminent demands of the situation, and no inspection could, under the circumstances, relieve it from liability. Brister v. Ill. Cent. R. R. Co., 36 So. 142-144; Columbus L. V. T. Ry Co. v. Celley, 1 Ohio Cir. Ct. R. 267.

In 21 Am. and Eng. Ency. (2d Ed.), page 487, we find the rule laid down: "In order that a party may be liable in negligence it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued, or the precise injuries sustained by plaintiff. It is sufficient if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected."

Certainly no consequences other than injurious could be expected by any sane person from the continuous presence of escaping gas into a building, such as occupied and used by appellee, for a period extending over a great part of two working days, and all of one entire night.

The facts in Burrus v. The March Gas & Coke Co., L. R. 5, Exch. 67 (Court of Exchequer, Hilary Term, 1870), were as follows: The defendants, a gas company, contracted to supply the plaintiff with a proper service pipe to convey gas from main outside to a meter inside his premises. Gas escaped from the pipe laid down under contract into the plaintiff's shop. The servant of a gas-fitter employed by the plaintiff happened to be at work in another room at the time of the escape, and went into the shop, hearing of it, with a view of finding out its cause. He was carrying a lighted candle in his hand and immediately on entering the shop an explosion took place, doing damage to the plaintiff's premises and stock. On the trial of an action against the defendants to recover for the injury sustained, the jury found, first that the escape of gas was occasioned by a defect in the pipe, and that the defect existed in the pipe when supplied, and secondly, that there was negligence on the part of the gas-fitter's servant in carrying a lighted candle. Upon these findings it was held that the plaintiff was entitled to recover, and that the defendants were not relieved from responsibility by the negligent act of the gas-fitter's servant. Kelly, C. B., and Pigott, B., in their opinions, said the cause of action was negligence of defendants, from the consequences of which the intermediate negligence of a person not in plaintiff's service could not relieve them, and Martin, B., said even if the person whose negligence was the intermediate cause of the explosion had been in plaintiff's service, the defendants would nevertheless have been liable. 6 Am. Neg. R. 13, note 2. See, also, Wharton's Law of Negligence (2d Ed.), sec. 77, where it is stated: "The fact is that the consequences of negligence are almost invariable surprises. A man may be negligent in a particular matter a thousand times without mischief; yet, though the chance of mischief is only one in a thousand, we would continue to hold that the mischief, when it occurs, is imputable to negligence." Payne v. Georgetown Lbr. Co., 117 La. 983, 42 So. 475; Rose v. Stephens & C. Transfer Co., 20 Blatchf. 411, 11 F. 438.

In this last case cited, Wallace, J., said: "Undoubtedly the presumption has been more frequently applied in cases against carriers of passengers than in any other case of negligence; but there is no foundation in authority or reason for any such limitation of the rules of evidence. The presumption originates from the nature of the act, not from the nature of the relations between the parties. It is indulged as a legitimate inference whenever the occurrence is such that in the ordinary course of things it does not take place when proper care is exercised, and is one for which the defendant is responsible. " See, also, Lykiardopoulo case, 53 So. 575.

There is nothing that the master can do that will relieve him of the obligation to provide his servant a safe place to work; this obligation is one that can be discharged by performance only.

In McNamara v. MacRonough et al., 102 Cal. 575, the master employed a carpenter to make the scaffoldings used by his employees; the plaintiff, an employee, was injured by one of these falling and the master was held liable though the plaintiff had helped construct the particular scaffold which fell.

In 4 Thompson on Negligence, sec. 3874, we find the rule stated: "Sec. 3874. This duty, primary, absolute and non-assignable. As in other cases, the obligation of the master to see that the place where his servant is required to work is reasonably safe, is primary, absolute and non-assignable, in the sense that the master is responsible for the negligence of any servant or agent, of whatever grade, to whom he delegates the performance of it."

Thus do we see even the fellow-servant doctrine abolished or suspended when it comes to this primary, absolute, non-assignable, non-delegable duty.

Martin & Bowman, for appellee.

Counsel discount the argument on assumption of risk by saying that there was no proof that plaintiff's intestate was warned, or knew and realized that there was any danger. To this we reply in counsel's own words, last above quoted. She was warned; the testimony is convincing that all the employees who were working in the laboratory on Saturday knew that the gas was present and that it continued to be present there the entire day long. That was all-sufficient warning. But they say that there is no evidence to show that she was informed of the danger arising from constantly escaping gas. She was no child, she was a woman grown, and had been working at the place for two or three months. If the Natchez Drug Company, which was not engaged in the business of manufacturing and distributing illuminating gas, and not, therefore, to be presumed to have anything more than common knowledge, or information, as to its qualities, is to be held to knowledge of the danger arising from the escape of such gas, and to be held negligent in not closing down when it knew, or should have known, that notwithstanding the efforts to remedy the trouble it still existed, why should not the fully-matured servant be held to the same presumption of knowledge? More especially so when the evidence indubitably shows that she and her co-workers in the laboratory had more and better knowledge of the gas conditions through the day than anybody else in the building. 4 Thompson's Commentaries on Negligence (2d Ed.), sections 4643, 4647, 4658; 26 Cyc. 1241, paragraph (d).

We do not think that the doctrine of res ipsa loquitur applies in this case. All the facts touching the building, its character, the business carried on there and the kind of stock and materials contained in it, are in evidence. It is true that the drug company was not called on for an explanation, but all the explanation possible, or that it could give, was already before the court in the testimony of plaintiff's witnesses, nearly all of whom were employees of the defendant. The cause of the explosion remains a mystery, unless it be attributed to the gas. Outside of the gas theory the plaintiff is bound to fail, for upon her devolves the duty of showing negligence.

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