Ribich v. Lake Superior Smelting Co.

• Decision Date: 27 March 1900
• Court: Michigan Supreme Court
• Parties: RIBICH v. LAKE SUPERIOR SMELTING CO.

82 N.W. 279

123 Mich. 401

RIBICH v. LAKE SUPERIOR SMELTING CO.

Supreme Court of Michigan

March 27, 1900

Error to circuit court, Houghton county; Norman W. Haire, Judge.

Action for personal injuries by Anton Ribich against the Lake Superior Smelting Company. From a judgment for plaintiff defendant brings error. Affirmed conditionally.

The defendant, in connection with its business of refining smelting, and manufacturing copper, operated cupolas in which mineral copper was smelted. From these cupolas molten copper mixed with slag, was run into cone-shaped pots at a temperature of about 2,500~. The pots are about two feet in diameter at the top, and taper to about six inches at the bottom; are made of cast iron, about an inch thick all round are put on two wheels, one on each side. The axle is built onto the rim of the pot on each side of the wheel. The pot is swung in the middle, with a handle about four feet long riveted to the axle, so that the whole can be pushed or pulled by the handle. The pots are dumped by throwing the handle up and over, when the cone slides out upon the ground. The fall of the cone is only the thickness of the rim. About 15 or 16 pots are used in each cupola. Two men are employed in wheeling them away and dumping them. When the molten matter is ready to be drawn, each man takes a pot, wheels it to the spout, and, when it is filled to the required height, wheels it outside the building, leaves it, takes an empty pot, and returns. The second man does likewise. The pots are arranged in a semicircle. It takes from two to five minutes to fill a pot. Plaintiff testified that it took about five minutes. Fourteen or 15 pots were used on the day of the accident. The time required for the slag to 'set' so as to be safe to dump was fixed by the experienced witnesses at from 8 to 30 minutes. The one wheeling out the next to the last pot would set it at the outer end of the line, take the pot at the other end, which had been cooling, dump it, and take it back to be filled. The one taking out the last pot would wheel it to the first place made vacant by the removal of the first pot taken. He would then take the next pot, dump it, and return to the cupola to refill it. Thus the process would continue until the cupola was empty. They commenced to fill the pots about 7 o'clock a. m., and commenced to dump them about 8 o'clock. The accident occurred about 9 o'clock, according to plaintiff's testimony. The snow had been cleared away from a space where the pots were to be dumped. There was some ice, which was, to some extent, melted by the hot cones. When plaintiff dumped the fifth or sixth pot, it exploded, and the molten matter flew into his eyes and upon his person. The only serious injury was to his eyes. He claims, as the result of the accident, that the sight of one eye was entirely destroyed, and the other seriously injured. He was an Austrian, about 23 years old. Had been in this country about five years. Began work for the defendant in December, 1896, and was injured on the 11th day of January following. He had been engaged in wheeling slag from the furnaces before, but this was his first run of emptying copper and slag mixed. The negligence charged is the failure to instruct him as to the dangerous nature of the work, and the liability of such molten copper and slag to explode on coming in contact with water, and 'as to the danger that might result from an explosion.' Plaintiff testified that he had no warnings or instructions, but that he simply did as his co-employ�, who had been engaged at this work for a long time, did. Several witnesses on the part of the defendant testified to informing him of the danger, and to instructing him how to do the work. Defendant also gave evidence to show that he dumped the wrong pot, contrary to instructions. Plaintiff recovered verdict and judgment for $15,000.

Grant C.J., dissenting.

A. R. Gray, for appellant.

A. T. Streeter, for appellee.

GRANT, C.J. (after atating the facts).

1. The court instructed the jury as follows: 'And I charge you on that subject, whenever there is any hidden, unusual, or latent danger connected with any work, the law imposes a duty on the master or employer, of informing the workmen or employ� of the danger. It is not enough to tell him that the work is dangerous, but the particular danger must be pointed out and explained. In this case, if you find from the evidence that there was danger of an explosion from the contact of water with the mixed copper and slag, then I charge you that that was a danger that was known, or that should have been known, to the smelting company, and that it was its duty to warn Ribich, the plaintiff, of that danger, and to explain to him the nature, force, and probable effect of such an explosion.' The objection urged against this instruction is that it was not the duty of the defendant to explain to plaintiff the 'nature, force, and probable effect' of such an explosion. It is insisted that the defendant's duty was fully performed when it had instructed him how to do his work; had informed him that it was dangerous to dump the pots before they were sufficiently set, and that an explosion would likely result. The question is one of great practical importance in the law of negligence. The only authorities cited in the briefs of either counsel are Smith v. Car Works, 60 Mich. 501, 27 N.W. 662, and Fox v. Color Works, 84 Mich. 676, 48 N.W. 203. I must assume that counsel have made a careful examination of the authorities, and are unable to cite any which afford much light upon the question. After as careful an examination as I have been able to make, I do not find the question now presented discussed to any extent, or any authoritative declaration of law applicable to this case. In the Smith Case the plaintiff was engaged in carrying a ladle of molten iron from one building to another, whereby it became necessary to walk over ground covered with ice and water. The occurrence was an unusual one, made necessary by the fact that the fires had gone out in one room. No instructions or information were given as to the danger of an explosion if the molten iron came in contact with the water. The court below had directed a verdict for the defendant, evidently upon the ground that the plaintiff had assumed the risk. The language of the majority opinion does not go to the extent of the instructions now complained of. It is as follows: 'Where extraordinary risks are or may be encountered, if known to the master, or should be known by him, the servant should be warned of these, their character and extent, so far as possible.' It was further said that it was the duty of the defendant to inform the plaintiff 'somewhat of its dangerous character.' This language falls far short of holding that it was the duty of the defendant in that case, in addition to instructing him how to do the work, and notifying him that there was danger of an explosion if the molten iron was spilled upon the ice, to also inform him of the 'nature, force, and probable effect' of the explosion. The Fox Case simply holds that it was the duty of the defendant to notify his employ�, the plaintiff, of the danger and effect of inhaling Paris green, and the precautions necessary to prevent the injurious effect. Neither of these cases supports the soundness of the instruction now under consideration. The evidence from several witnesses on the part of the defendant was very strong that plaintiff was fully instructed how to do the work, the reason for thus doing it, and the danger of an explosion if the pots were dumped before the contents were sufficiently 'set.' Under this instruction, the jury may have found that this was true, and have based their exceedingly large verdict upon the failure of the defendant to further notify the plaintiff of the 'nature, force, and probable effect' of the explosion. It is not quite clear to me what a jury would understand by the 'nature' of an explosion, or why its nature, whatever it is, should have been explained to the plaintiff. If, by the information conveyed, he knew that there was danger of an explosion, what more notice did he require for his own protection? Should he have been told that it might kill him, it might burn him, it might put out his eyes, or it might blow off a limb? All these things, and others, might be the effect of the explosion. This would depend upon its severity, which might be different on different occasions. If a...