Holland v. Tenn. Coal, Iron & Railroad

McCLELLAN, J. This is an action for damages for personal injuries to appellant’s intestate, resulting in his death. The complaint contains three counts, each of which relies upon the negligence of the deiendant company, and not upon that of fellow-servants. The case is, therefore, not bought under the employer’s act (Code, §§ 2590 et seq.) The first count alleges that the defendant, being engaged in the business of operating a furnace for the purpose of smelting iron ore, so negligently conducted said business as to cause molten iron to come in contact with the person of plaintiff’s intestate, inflicting injuries from which he died a few days afterwards. The second and third counts proceed on the theory, that the defendant negligently employed incompetent servants in the particular work upon which they and the intestate were engaged at the time of the accident, and the injury resulted from the 'incompetency of these co-servants of the intestate. The trial developed three controverted issues: 1st, whether defendant was negligent in employing stock-house men having no special knowledge, skill or experience, to do the work in which the injury occurred; 2d, whether defendant was negligent in failing to instruct said employés as to the perils incident to the work they were put to do; and 3d, whether plaintiff’s intestate was himself guilty of negligence which proximately contributed to the injury. 1. With respect to the care a master or employer must exercise in the selection of servants, and in the use of machinery .and appliances in his business, our own decisions, following long and well established principles, leave no room for doubt. The master is in no case an insurer of the absolute safety of the appliances and machinery employed in the business. He is in no case held to an undertaking to select absolutely competent and careful servants. The rule requires of him no more than the exercise of reasonable care in either case — such care only as men of reasonable and ordinary prudence exercise; and when he has done this, he can not be held responsible for injuries which result from the incompetency of servants, or latent defects in machinery, so selected and employed. The only further duty then upon him is, the exercise of care in ascertaining any incompetency of the servant, or defect in the machinery, which the service may develop, and thereupon discharging the one, and discarding the other. The selection of a servant must, of course, be made with a view to the nature of the employment. If it involves special knowledge or ex451 perienee, only men of special knowledge and experience should be employed. If the work may be well done by the unskilled and inexperienced, it can not be said that the master is lacking in the measure of care he owes to other employés, should he employ unskilled and inexperienced men upon it.—M. & O. R. R. Co. v. Thomas, 42 Ala. 672; Smoot v. M & M. R. R. Co., 67 Ala. 13; Tyson v. S. & N. R. R. Co., 61 Ala. 554; M. & M. R. R. Co. v. Smith, 59 Ala. 245. 2. The men employed in the work of cutting a trench, for the purpose of drawing off the “boil” of molten iron, were stock-house men. It appears that the ordinary duties of such men were not such as to afford them any training or experience with respect to the work these employés were put to do, and it did not appear in fact that they had had any experience or training. As bearing on the question of defendant’s care and diligence in employing them for this purpose, evidence was received, against plaintiff’s objection, that many well regulated furnaces habitually employed this class of men for this particular service. The assignments of error bring under review the ruling of the court in this regard. It is admitted in argument, and fully established in our decisions, that the custom and usage of other well regulated businesses of the like kind, as to the use of certain machinery and mechanical appliances, may always be adduced in evidence, as tending to negative the charge of negligence, when that charge is based upon the use of such m achinery and appliances by the defendant.—L. & N. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. Railway Co. v. Propst, 83 Ala. 518; Ala. Gr. So. R. R. Co. v. Arnold, 84 Ala. 159. But it is insisted that the same rule does not apply with respect to the employment of human beings. W e are unable to perceive any sound reason for this insistence, at least as applied to this case. The presumption is, that well regulated furnaces exercise due care in the conduct of their business. If it is customary for them to employ a particular class .of men for a particular purpose, the further presumption is, that that class of men are competent for the work in hand; and their competency may be the result either of a special knowledge or experience with respect to the particular thing to be done, or from the work being such as to require no special knowledge or experience. In either case, the fact of the custom or usage of prudently managed furnaces to employ that class of men is some evidence that the defendant company was not guilty of negligence in their employment. 3. Whether the defendant was negligent or not in failing to notify and instruct the intestate and his fellow-servants as [452] to the dangers of the work they were directed to do, depends upon the further consideration, whether the peril involved in it was patent or latent — such as could be seen and known by ordinary care and prudence in the use of the senses, or such as was obscured and could not be seen or appreciated. If the former, the law is well settled, that the. master need not advise his servants of its existence, and instruct them as to the means necessary to its avoidance, since they, equally with himself, are held to know both the fact of peril, and how to avoid or escape it.—Wood’s Master & Servant, § 335; Perry v. Marsh, 25 Ala. 659; 1 Thompson on Neg., 971, § 2; p. 979, § 9; Shear. & Red. Neg., § 203. On the other hand, it is the imperative duty of the master to inform the servant of all latent dangers incident to the service, and instruct him as to their avoidance.—Wood’s Mast. & Serv. § 354, and authorities supra. The evidence tended, in some degree, to show two distinct elements of danger incident to the work, upon which the plaintiff's intestate was engaged when the injury was suffered —one open to ordinary observation, and capable of being measured and judged of by men of no special knowledge or instruction in the premises ; and the other latent in character, with nothing which could be seen and understood by the unskilled and uninstructed to give warning of its presence, or suggest means of avoiding it. The “boil” of iron, while its lower part had sunk down considerably — two and a half, or three feet, may be — into the earth, yet protruded above the surface, and was visible to those engaged in cutting the trench. It was common knowledge, appreciable by inexperienced as well as experienced persons, that if the ditch was open entirely up to the melted mass, its bottom being below the lowest estimated point of the “boil,” the iron would immediately flow into and along the trench, thus imperilling those who should be in there at the time. This was the open and unobscured danger, which was sought to be guarded against by leaving a wall of earth between the trench and the “boil,” of from eight to twelve inches thick, the purpose being to break down this wall by piercing it with a long crow-bar after the laborers had left the trench. Of such a patent danger thex-e was xxo duty oxi the defendant to give the employés warning. The other peril arose from the fact, supported by a tendency of the evidence here, that a “boil” of ix’on upoxx being punctured, and having its shell broken, bursts, and throws out molten metal in all directions — “explodes,” as some of the witnesses stated as to this one, though this term was said to be inapt and inaccurate by others. Of this peril — the danger of the flying [453] molten iron — resulting from unseen and unappreciated conditions and forces, the inexperienced man would lmow nothing by the exercise of his senses. It was a state of things which would not address itself to his comprehension, and of which he could only come to a knowledge by being instructed in regard to it. We are of the opinion, that plaintiff’s intestate and liis fellow-servants should have been advised of this latent danger, when they were put to work so near the “boil” as that the lack of ordinary prudence and care on their part might not only have started the How of iron into the trench — this they could see, and perhaps could have escaped from — but also have instantly enveloped them in the Hying metal, which they could not anticipate, and from which there was no time to escape.—Smith v. Peninsular Car Works, 60 Mich. 501; s. c., 1 St. Rep. 542. Whether, in point of fact, however, this latent danger did exist, was a question for the jury. It was also for their determination, whether, conceding its existence, the inj ury resulted from it, from the natural ilow of the metal along the trench, or from both combined. They might have reached either one of the four possible conclusions m this connection. If they found the latent danger referred to did not exist, then they could not have rendered a verdict against the defendant for negligence in failing to give notice of the patent danger, since no such dut y rested on the defendant. If their conclusion was, that although the latent peril was incident to the thing being done, yet that the men were burned to death by the metal flowing down and along the ditch — the injury thus being produced by the patent danger in respect to which there was no duty of instruction upon the defendant — it still can not be said that the accident was chargeable to defendant’s negligence in failing to give proper warning of the unseen peril which did not cause the injury complained of We assume that the jury were correctly instructed as to defendant’s liability, if they found the existence of the unseen danger, that the injury resulted from it, and that there was a negligent failure on the part of those who represented the furnace company to instruct its servants in regard to it, since the record indicates nothing to the contrary. The instructions which were given, as shown by the record, for the defendant, and which proceeded on the theory, supported by one aspect of the evidence, that the only danger incident to the work was an open and unobscured one, or that, whether the only one or not, it produced the injury; and were to the effect that, if the jury found the danger to be one that could be readily seen by common observation, and this danger was set in motion, so to speak, by an act of intes [454] tate’s co-laborer, against which he had been warned and instructed, the defendant was not liable, &c. &c., — are correct expositions of the law applicable to that phase of the facts. 4. The action being for the negligence of the master, and not under the statute for that of a fellow-servant, it follows, of course, that the defendant is not liable for an injury produced by an act of intestate’s fellow-servant, done not only beyond the scope of his employment, but against the express orders of the defendant’s agent in charge of the work. ¥e understand charges one and two to assert this doctrine. There was evidence tending to support the facts they hypothesize. If there was another state of facts which the evidence tended to support, and upon which the defendant would be liable for the act referred to, and the plaintiff apprehended the charges as given might mislead the jury by obscuring this other aspect of the evidence, he should have asked an explanatory charge, or an independent instruction upon that phase ; and for aught the record shows, such a charge may have been asked and given. 5. It only remains to be considered whether the instructions given in respect of the alleged contributory negligence of plaintiff’s intestate were correct. Charges 1 and 8 -on this subject, to the effect, respectively, that the jury “can not find for the plaintiff, if you believe from the evidence that the injury to plaintiff’s intestate was in part caused by his own negligence, and that such negligence on his part proximately contributed to his inj urv; and that it was the duty of plaintiff’s intestate to have used due diligence in trying to get out of the way of the molten iron, when he saw it flowing towards him in the ditch (if you believe he saw it, or could have seen it by the exercise of due care), and if he tailed to do so, and because of such failure he was burned and injured, you must find for the defendant,” — are maniféstly sound statements of the doctrine of contributory negligence. The fact, if it be one, .that-the intestate was panic-stricken, and his energies paralyzed by the awful nature of the impending catastrophe, might be proper to be considered by the jury, in determining what effort would amount to due diligence, or what omission of effort would be negligence under all the circumstances; but no such consideration can relieve from the duty of diligence on the one hand, or condone negligence on the other. 6. Charge 5 given for defendant is in the following language : “If you believe from the evidence that the plaintiff’s intestate was guilty of negligence, I charge you that, however slight that negligence on his part may have been, if it was such that but for that negligence the accident could not have [455] happened, the plaintiff can not recover.” There are very respectable authorities which hold that the abstract proposition of this instruction is sound.—March v. Concord R. R. Co., 29 N. H. 9; s. c., 61 Amer. Dec. 631; Potter v. C. & N. Railway Co., 21 Wis. 372; s. c., 94 Amer. Dec. 548. We apprehend, however, that the language employed is open to criticism, if not to condemnation; for that a case may be conceived, in which the negligence of the party injured, while such as that without it the injury would not have been inflicted, yet is not the proximate cause of the accident. We need not decide this, however. The charge may be sustained on another consideration. All charges must be referred to, and tested by the evidence in the cause. Applying that principle here, and looking to the testimony, it is seen that the only negligence on the part of plaintiff’s intestate, which finds any lodgement in the tendencies of the evidence, and, therefore, the only negligence to which the charge can be held to relate, consisted in the injured party’s failing to get out of the ditch, when he was ordered to do so, or when he saw, or should have seen, the molten iron flowing towards him. Unquestionably, this was proximate contributory negligence (C. & W. Railway Co. v. Bradford, 86 Ala. 574); and the charge, construed with reference to it, becomes a proper statement of the law, or, at least, is shorn of all capacity to work prejudice to the plaintiff before the jury. The judgment of the Circuit Court is affirmed.