Orr v. . Rumbough

AlueN, J. The verdict establishes the fact that the intestate of the plaintiff was in the employment of the defendant at the time of *758 Ms death, and tMs relationship imposed on the defendant the duty of providing a reasonably safe place to work, reasonably safe appliances, and to give such inspection to the premises and appliances as was necessary to keep them in this condition, and to warn the employee of dangers known to the employer of which he might know by the exercise of ordinary care, and which were unknown to the employee or which he could not discover in the careful performance of his duty. Womble v. Grocery Co., 135 N. C., 479; Marks v. Cotton Mills, 135 N. C., 290; Hicks v. Mfg. Co., 138 N. C., 325; Mincey v. R. R., 161 N. C., 471, and many other cases. The duty to warn or instruct is more insistent when the employee is inexperienced, and is subject to the following qualifications, which must be shown in order to impose liability: “1. That the master was chargeable with knowledge, actual or con- • structive, of the existence of the risk. “2. That the servant himself did not appreciate the risk, and that his nonappreciation thereof was excusable. “3. That the master knew, or ought to have known, that the plaintiff was thus excusably ignorant of the risk, and was by reason of such ignorance exposed to abnormal hazard, over and above those which he was presumed to contemplate as incidents of the employment.” 3 Labatt M. and S., sec. 1141. “The second fact, which, as stated in par. 1141, ante, must be established in order to justify the conclusion that the master was negligent, is that the dangers with regard to which there'is alleged to have been a duty of instruction were not known, either actually or constructively, to the servant. The absence of any obligation to instruct a servant who is proved by direct evidence actually to have had as complete knowledge of the danger and of the appropriate means of avoiding it. as the master could have imparted to him is too obvious to admit of controversy.” 3 Labatt M. and S., 1143. A breach of either of these duties would be negligence, and, if'the proximate cause of the death of the intestate, actionable. The burden was on- the plaintiff to prove the breach of duty, and when this consists - of some defect in appliances or ways or place to work or dangers incident to the work, the employee must show that the employer knew of the defect or danger or that he could have discovered it by the exercise of ordinary care (Hudson v. R. R., 104 N. C., 491; Blevins v. Colton Mills, 150 N. C., 499; Pritchett v. R. R., 157 N. C., 100) ; but the employer is presumed to be familiar with dangers ordinarily accompanying the business in which he is engaged, “on the ground that a person who combines with the ordinary measure of. intelligence which the law presumes every citizen to possess, the *759 special requirements of persons engaged in tlie given occupation, cannot, supposing him to have made a reasonably careful use of his faculties, fail to understand the extent and nature'of the perils normally incident to that occupation.” 3 Labatt M. and S., see. 1029. In assuming the burden of proof, the plaintiff cannot usually rely on proof of the injury alone, as the general rule is that the injury neither raises a presumption nor is it evidence of negligence (Patton v. R. R., 179 U. S., 658; Shaw v. Mfg. Co., 143 N. C., 134); but there is a well recognized exception to this rule to the effect that “When the thing is shown to be under the management of the defendant or his servant, and the accident is such that as in the ordinary course of things does not happen if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” This principle was declared in 1865 by Earl, C. J., in Scott v. London Dock Co., 3 H. and C., 134, and has been adopted in many of the States, as will be seen by reference to the notes in 113 A. S. R., 1000, and particularly in this’ State in Stewart v. Carpet Co., 138 N. C., 67; Ross v. Cotton Mills, 140 N. C., 122; Fitzgerald v. R. R., 141 N. C., 540; Turner v. Power Co., 154 N. C., 138; Ridge v. R. R., 167 N. C., 510. There is much conflict of authority as to whether the principle is applicable to explosions (see note 113 A. S. R., 1000 et seq., and note to Lykiordopoula v. R. R., Anno. Cases, 1912 A, 980); hut, however this may he, there are limitations upon the application of the exceptions which are thus stated by Professor Wigmore in 4 Wigmore on Evidence, sec. 2409, and approved in Stewart v. Carpet Co., 138 N. C., 66. “(1) The apparatus must be such that in the ordinary instance no injurious operation is to he' expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have .been, at the time of the injury, in the control of the party charged; (3) The injurious occurrence must have happened irrespective of any voluntary action at the time by the party injured.” He further says that “The doctrine is to some extent founded upon the fact that the chief evidence of the true cause of the injury, whether culpable or innocent, is practically accessible to the party charged and perhaps inaccessible to the party injured.” It is thus seen that the basis of the exception is common experience, and that it is allowed from necessity when the causes of an injury cannot he clearly shown by the injured party and ought to he known to the employer, and that it is not properly applied when all the facts are known and they rebut the presumption of negligence, or when *760 the injurious occurrence could not happen without the voluntary act of the person injured. “To render the maxim applicable the thing causing the injury must be shown to have been in the exclusive control of defendant; and the rule has no application where the injured person and the alleged negligent person were both in the exercise of an equal right and were each chargeable with the same degree of care. Nor does it apply where the cause of the accident is known, or where the injury was the result of two or more eoncurzúng causes.” 29 Cyc., 592. Let us, then, apply these principles to the evidence. The defendant purchased a welding machine from a responsible party, and there is no evidence that it was not suitable for the purposes for which it was bought or that there were any defects in it. He was not acquainted with the proper manner of installing the machine, nor did he know how to operate it, and he therefore made it a part of the contract that the seller would send an expert to install it and to instruct the intestate, who was himself an experienced workman and machinist, how to operate it. The expert was not in the employment of the defendant, but of the seller of the machine, and the machine was not bought until after consultation with the intestate, who was foreman of the defendant. The expert came and he and Orr, the intestate, after installing the machine, operated it for about two weeks without difficulty and without complaint. They together had complete and exclusive control of the machine and of the room where it was located. They concluded that it was necessary to construct a heating box in which iron, steel, and other material could be heated before it was welded. The intestate, Orr, and McAvoy, the expert, constructed this heating box and com'pleted it about 6 o’clock of the evening before the accident, which occurred the next morning at about 11 o’clock. In constructing this box they used pipes for the purpose of con-, ducting oil to the box, and after 6 o’clock it was found that these pipes, constructed by Orr and the expert, leaked, and that oil coming from the pipes was on the cement floor. The defendant, passing through the room about this time, directed that the oil be removed, as it was dangerous, and this was done. On the next morning Orr and McAvoy began work about 8 :30 o’clock and about a half-hour before the accident they placed in the retort-chemicals, manganese, and chloride of potassium, which were in wooden boxes kept on the floor where the oil had escaped. That the combination of the oil and the chemicals created a high explosive, and in a short time the retort exploded, killing the intestate and McAvoy. *761 There is no evidence that the defendant knew that the combination of the oil and the chemicals would create an explosive, and he directed that the conditions which brought this about should be removed. The pipes which leaked were constructed by the intestate and McAvoy and they had complete control at the time of the accident, of the welding machine, the heating box, and of the floor where they were situated, and it was their duty to see that they were kept in proper condition, and there is neither allegation nor proof that the defendant failed to warn or instruct the intestate, if required to do so under the circumstances. There cannot be, under these conditions, any negligence upon the part of the defendant unless he is charged arbitrarily with knowledge of the change in the chemicals by contact with the oil, and in failing to warn the intestate. This aspect of the case is fully met by the fact that he requested the seller of the machine to send an expert, who is presumed to have had knowledge not only of the installation and operation of the machine, but of the quality of the chemicals, and that he would not only keep the premises safe, but would warn the intestate of any dangers, and by the fact that the conditions which caused the explosion were created by the intestate and McAvoy, and that they had more perfect knowledge and better opportunity to know than the defendant. Why impute to the defendant knowledge when the intestate knew or ought to have known more than he? and why require him to warn of dangers of which he did not know, when the intestate had more perfect knowledge, and had by his side an expert to warn and instruct him ? We do not modify the rule which prevails with us, that the employer cannot delegate the duties which devolve upon him as employer; but when all of the circumstances are considered, there is nothing in the record which tends to prove that the defendant failed to exercise the care of a man of ordinary prudence, and the death of the intestate must be referred to accidental causes or to causes created by and under the control of the intestate. The motion for judgment of nonsuit ought to have been allowed. Reversed.