Powell v. Durant Milling Co.

GIBSON, J. This action was instituted in district court by plaintiff in error on behalf of herself and her minor children to recover damages for the alleged wrongful death of her husband. At the close of all the evidence the court instructed a verdict for defendant, and plaintiff appeals. The issue of actionable negligence was the alleged failure of defendant to furnish and maintain for the deceased a safe place in which to work. The allegations in this connection were in substance that the deceased had been employed in defendant’s mill and grain elevator under conditions dangerous and detrimental to his health and life, in that the atmosphere in the building was allowed to become and remain laden with dust, chaff, and particles arising from the process of milling grain, hay, and peanuts; that the defendant knew, or should have known, the possible deleterious effect of such dust and chaff upon the human system, but negligently and in disregard of its duty to deceased permitted the condition to continue in violation of its duty to remove the dust and chaff by means of proper ventilation, exhaust fans or devices, or to furnish deceased with a proper dust mask or other protective device; that as a result of such negligence deceased’s lungs became congested with the dust and chaff aforesaid, resulting in infection and death. The evidence shows that the atmosphere in the place where deceased worked was constantly filled with dust and chaff as a result of the milling process; the defendant did not instruct the workmen to use dust masks. There is medical testimony that decedent died as a result of breathing the dust and chaff. Defendant did not warn the workmen of dangers incident to the dust and chaff. There is some testimony concerning the nature of the ventilation of the building. There is testimony that one of a number of dust masks was not in good repair. There is no evidence that the mill was operated imprudently or in any manner different from the way in which such mills are ordinarily operated; there is no evidence that the alleged dangers were latent, or that the deceased was not aware of the general conditions surrounding his employment. There is no evidence that the ventilation was below the ordinary standard in such case. There were dust masks for the use of the workmen. Plaintiff’s evidence proves this fact. There is no evidence to indicate that more than one mask was unsuitable. The question here is whether under this state of facts the trial court was justified in saying as a matter of law that the defendant had violated no legal duty toward its servant, the deceased. Plaintiff says that to take this case from the jury would be to hold that the operator of a mill and elevator may place a servant in the most particle-filled atmosphere within his power to create and escape liability for injuries resulting from inhaling the particles. She asserts in this connection that the question whether the mill was operated in a dangerous manner with respect to the dust and chaff was a question for the jury. Counsel cite Joy v. Pope, 175 Okla. 540, 53 P. 2d 683, wherein it was held that whether a cotton compress as operated is a dangerous instrumentality was a question for the jury. We may agree that such questions are ordinarily for the jury’s determination. But it is not within the province of the jury in every case to say whether the particular conditions and circumstances surrounding the employment and from *404 which the servant received his injury-indicated that the servant was given an unsafe place in which to work or was required to adopt an unsafe method of operation. Whether a place or a method may be considered unsafe and, if unsafe, whether the master has supplied the servant with proper safeguards, is ordinarily a matter to be determined by way of comparing the same with places, methods, and safeguards put to similar uses and commonly looked upon as safe or unsafe in the light of custom or of legal standards. As said in Beasley v. Bond, 173 Okla. 355, 48 P. 2d 299: “It is difficult for the mind to determine whether any particular method is a safe method without a mental comparison of what was done with that which should or should not have been done. The two may coincide, and then again they may not. Comparison in such instances is necessary.” We realize, however, that where the standard of duty is not fixed by law or usage, but is variable, and shifts with the circumstances of the case, such standard is incapable of being determined as a matter of law, and where there is sufficient evidence, the jury must fix the standard and determine whether it has been complied with. Interstate Compress Co. v. Arthur, 53 Okla. 212, 155 P. 861. But where there is a fixed standard of duty, there must be evidence that the defendant failed to live up to that standard, and that such failure was the proximate cause of the injury. Stephan v. Apartment Hotels, Inc., 182 Okla. 274, 77 P. 2d 539. In that case the rule was stated as follows: “In a personal injury action by an employee against his employer, where plaintiff’s evidence shows that the standard of duty of such employer toward plaintiff with reference to safe place to work, safe tools, and safe appliances is fixed by law, custom, or usage, and that such duty has been performed, sustaining demurrer to such evidence does not constitute error.” In the instant case the defendant brought forth proof that its mill was operated in every way, including ventilation and supplying of dust masks, according to long established custom and usage. This evidence remained un-contradicted. Plaintiff’s evidence gives some information concerning the character of the ventilation, but we find nothing in the record to indicate that it did not conform to the standard fixed by custom and usage adopted in the milling industry. It is not within the province of juries to fix a standard of duty in such case where a standard of duty already exists. Plaintiff cites numerous cases bearing on the general rules to be applied in cases of this character, but places considerable reliance on Beasley v. Bond, supra, as supporting authority for her argument on the particular question now under consideration. That and other cases are adequately distinguished in Stephan v. Apartment Hotels, Inc., supra. The language of the court in that case is applied here. We are aware of the statement in the Beasley Case that “a master is not-necessarily absolved from negligence liability by showing that he used the method customarily used by others performing similar tasks. The fact that others engaged in the same work used the same method is only some evidence of the safeness of that method.” The rule based on this language is stated in the syllabus of that case as follows: “On the issue of whether master has failed to provide a safe and proper method of accomplishing the work in which injured employee was engaged, evidence of other and better methods is admissible even though master has shown he used the method customarily adopted by others in same business.” The real meaning of the foregoing language is that if there is evidence that a given custom has been modified or overturned, the custom may no longer be the only criterion for determining the extent of the master’s legal duties toward the servant, but is only some evidence of those duties. Plaintiff failed to show that the defendant operated its mill in any manner *405 below the standard fixed by custom, and failed to show that such custom was no longer recognized as the best method of operation. It was necessary to show one or the other of these circumstances in order to make out a case of primary negligence for the jury. The judgment is affirmed. WELCH, C.J., CORN, V.C.J., and BAYLESS and DAVISON, JJ., concur. RILEY, OSBORN, HURST, and ARNOLD, JJ., dissent.