Muscarelli v. Hodge Fence & Lumber Co.

BREAUX, C. J. Plaintiff sued the defendant for damages in the sum o;f $5,000 ,for personal" injuries he alleged he suffered in an acqident on the -20th. day of July,""1906;’ at defendant's sawmill, situated on the banks of the Calcasieu, in the city of Lake Charles. He was employed by the defendant company at its lath machine in binding laths. He was at some little distance from the mill, which had stopped for dinner between 12 and 1 o’clock on the day of the accident. At 1 o’clock the mill resumed operations. The whistle blew, warning the workmen to return to their work. The plaintiff, returning [337] to his work, passed in an alley between the boiler and engine room, or building, and the banks of the river. This, it appears, is the passageway which others of the employés used, although it also appears that there are other passageways for workmen going to and coming from the hydrant. It further appears that, for the convenience of those walking in this passageway, planks are laid over and across several pipes that are about 15 feet from the engine and boiler house. Plaintiff, who was running, after having taken dinner, a slow run, stopped at the well for a drink of water. It was after drinking that he ran through the passageway, necessarily over the pipes, to get to his work. It was then, as he thus ran and while near the boiler, that the steam was suddenly discharged from the boiler into the short pipe leading from the mud drum in the direction of the bayou. The plaintiff had been in defendant’s employ at its mill about seven months. One of the boilers, of the nest of boilers at this mill, had only a short connecting pipe, extending outside of the boiler or engine room. This pipe was about 15 feet long. While plaintiff was crossing on the boards in this passageway, suddenly, in blowing off the mud valve, the steam and hot water rushed from the short connecting pipe before mentioned with great force and struck him. The result was that it burnt and scalded him. He suffered great pains. Some two months he was under medical treatment, and had to undergo painful operations in order to obtain some relief. He was stout and strong before the injury, and since, in that respect, there is a change in his appearance, although his physician testified that he is entirely cured. Defendant does not deny that plaintiff was injured. It claims that plaintiff seeks to greatly exaggerate his injuries; besides that, he was grossly negligent and inattentive at the time that the accident occurred; that he should have seen the danger, if any there was; that he should have heard the escaping steam, and avoided the mud, which struck him as it passed from the boiler. The judgment of the district court was for plaintiff in the sum of $500, with interest and costs. The Exceptions to the Judge’s Charge. The judge’s instruction to the jury stated, in substance, that a person operating a sawmill is required to exercise due care for the safety of his men, and that he should have for them reasonably safe passageways to and from their place of work, but that if a workman unnecessarily exposed himself by taking an out of the way path, he having a safe way to go to his work, he is guilty of contributory negligence and cannot recover. The objection of defendant, through counsel, was that the court had instructed the jury, to wit: Where a passageway is commonly used with the knowledge and approval of the employer, which is at times made dangerous by the willful discharge of steam for the purpose of blowing out the boilers, the servants are entitled to warning, and if no warning is given, and a servant is injured, then the master is liable; and this is true, even where the workman may have gone by another passageway and where there was no discharge of steam. Construing all of the judge’s charge together, and the facts of the case, it is not subject to the objection urged. The judge informs us, in his narrative, embodied in the bill of exceptions, that the passageway in which plaintiff was hurt was as commonly used as any other passageway in and about the mill. He states that his conclusion was arrived at from personal view of the place, to which he repair [339] ed with the Jury on the day of the trial, and also because of the evidence. We are of opinion that the ruling should be sustained, and that the instructions were not subject to the objection urged. The next bill of exceptions was taken to the judge’s refusal to instruct the jury: “That an employs of his own volition going to a point distant from his place of work, with no instruction as to the route to take, and failing to inquire as to what route he should take, and selecting a route with which he is acquainted, assumes all risks by selecting a dangerous route.” The judge, in his answer in refusing to grant the special charge, states: “No application to the case on trial.” The judge’s ruling could not well have been otherwise. The next ground of objection, in the order in which they are presented by counsel for defendant, is: “Where there are two avenues of travel, and the more dangerous one is selected, the party injured cannot recover if the injury was due to the risk incident to the route taken.” This request is subject to the same objection; that is, it has no application to the issues, the learned judge said. And we are of the same opinion, for it does not appear that before the accident there was anything to lead plaintiff to believe or suspect that the path he followed was the more dangerous. In the next place, the contention of defendant is, by way of objection to the charge of the judge: “That an employer is not obliged to safeguard an employ® against danger known to the employ®.” This, in view of circumstances and incidents, may be the law in certain cases; but it is not always law applicable, for there are relations arising between employer and workman which render it imperative to safeguard the workman. It is always the duty of the employer to bring to bear his superior knowledge and superior ability, in ease of such ability. The employer is to a reasonable extent to see with due care and attention to the avoidance of accidents as much as possible. In the next (the last) instruction requested by the defense, which the court declined to give, was that: “The rule of law requiring an employer to provide a reasonably safe place for an employ® should, be applied in cases only where the employ® is injured in the performance of his work, and should not be applied when he, during the hours of recess, loiters around the premises.” The following, sustained by the facts of record, was the ruling of the judge in properly refusing to thus instruct the jury: “Not applicable here. The employ® was not loitering, as will be seen from the evidence.”