Worley v. Raleigh Lumber Co.

• Decision Date: 12 December 1911
• Citation: 73 S.E. 263,70 W.Va. 122
• Parties: WORLEY v. RALEIGH LUMBER CO.
• Court: West Virginia Supreme Court

73 S.E. 263

70 W.Va. 122

WORLEY v. RALEIGH LUMBER CO.

Supreme Court of Appeals of West Virginia.

December 12, 1911

Submitted March 25, 1910.

Syllabus by the Court.

A master does not ow e to his servant engaged in using appliances furnished by the master in building a sawmill the same degree of care in furnishing safe appliances as he would owe in case of a completed and operating mill.

The rule of law is not that a master must furnish to his servant reasonably safe machinery, appliances, or instrumentalities for work; but it is that the master must exercise reasonable care and diligence to furnish reasonably safe machinery appliances, and instrumentalities.

In an action by a servant against a master for injury from a defect in an appliance, machine, or instrumentality furnished by the master, it is incumbent on the servant to show such defect and that the injury comes from it. If it might have come from one or another cause, for one of which the master is not liable, there can be no recovery. Recovery cannot rest on mere surmise or conjecture as to the cause or source of the injury.

Error to Circuit Court, Raleigh County.

Action by George W. Worley against the Raleigh Lumber Company. Judgment for plaintiff, and defendant brings error. Reversed judgment set aside, and new trial granted.

Vinson & Thompson, James J. Divine, and McGinnis & Hatcher, for plaintiff in error.

Farley, Sutphin & Ward, for defendant in error.

BRANNON J.

Raleigh Lumber Company had about completed a new mill. It was engaged in putting in its place a pipe of considerable length running from the boiler to some part of the sawmill for the conveyance of steam, and was adjusting and testing the pipe. Steam was turned on into this pipe, and it disclosed a leak between two sections of the pipe. Steam was turned off, and George W. Worley, a workman who had been employed in the construction of the mill, was engaged at the point of leakage in tightening up a flange coupling which was leaking, when an ell burst at his feet, and a large quantity of steam, which had been turned on again, escaped and badly burned Worley. In an action brought by him against the lumber company he recovered verdict and judgment for $3,000, from which the lumber company has sued out a writ of error.

Much argument is made to sustain a demurrer to the declaration overruled by the court. We think the declaration is good.

It involves nothing necessary to be here stated.

Instruction No. 1 for the plaintiff is excepted to. It reads as follows: "The court instructs the jury that the duties of the master to provide a reasonably safe and suitable machinery and appliances for the business and to furnish a safe place in which his servant is to work are duties which the master can either perform personally or delegate their performance to some one else; but if both the master and the person to whom such duties are delegated fail in the performance of any of said duties, and injury results to the servant by reason of said failure, the master is liable for such injury." This mill was yet incomplete. It was not yet in actual operation. The piping that was being put down was indispensable for the operation of the mill. Worley was helping to put that pipe in place. The objection to this instruction is that it sets up a standard of duty of the employer applicable to a complete operating mill. It demands of the employer the same degree of duty as to machinery exacted of an owner of a running mill. The principle governing the trial seems to be wrong. The trial was upon an erroneous theory, that of a running mill. You cannot exact of a mill builder that high degree of care as to good machinery or appliances, when they are being put up and tested, as if completed and running. You cannot demand the same degree of duty as to a new and untried pipe, when being put down and tested, as you could in the case of a steam pipe in a finished and operating mill. Labatt on Master and Servant, § 29, says: "It is well settled that, where the instrumentality which caused the injury was still incomplete at the time of the accident, and the injured servant was engaged in the work of bringing it to completion, the question whether the master was in the exercise of due care is determined with reference to a lower standard than that which is applied in the case of instrumentalities which have been put in a finished condition and are in regular use in the normal course of the business. A similar qualification of the master's liability is admitted where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work thus undertaken by him." In Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440, it was held: "The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not oblige him to keep a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants."

There is another objection to that instruction. It says that the master must provide "a reasonably safe and suitable machinery and appliances for the business." This makes the master guarantee the safety of the pipe. The law is that it is the duty of the master to use reasonable care and diligence to furnish suitable machinery and appliances. In Osner v. Zadek, 120 Ill.App. 444, an instruction like this one was given. The court said: "Under the instruction the jury may have found for the plaintiff, if they believed from the evidence that the machinery was not reasonably safe, even though the appellant used the utmost diligence to procure a safe machine, and even though there was no defect discoverable by the exercise of ordinary diligence. This is not the law. The master's obligation is not to supply the servants with absolutely safe machinery or any particular kind of machinery; but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary and unreasonable danger. The law imposes upon the company the obligation to use reasonable care and diligence in providing suitable and safe machinery." In Belleville Pump Works v. Bender, 69 Ill.App. 189 the court says: "The second instruction given for the plaintiff was erroneous. It told the jury that it was the duty of the master to furnish his servants with tools and appliances that were reasonably safe. The law is that he is only required to use reasonable and ordinary care and diligence in providing suitable and safe machinery. Camp Point Co. v. Ballou, 71 Ill. 421." In Wonder v. B. & O., 32 Md. 411, 3 Am.Rep. 143, it is stated that: "All that can be required of the master is that he should use due and reasonable diligence in providing safe and sound machinery." In Southern Ry. Co. v. Mauzy, 98 Va. 692, 37 S.E. 285, it is held that: "It is error to charge in an action by an employé for injuries received that one of the personal duties of the master is to furnish safe and sound machinery for the use of the servants, since it is his duty to use only ordinary care and diligence to provide reasonably safe and suitable machinery." Much law sustains this position. Atlantic...