Smith v. Peninsular Car Works

Sherwood, J. The plaintiff’s intestate, Adelbert A. Smith, was her husband. He was a labore.r, and worked for the defendant during the year 1882, and until he died, in January, 1883. His business was principally that of a moulder, and he worked in the defendant’s shop at Adrian. The work of moulding and carrying molten iron was ordinarily done in two rooms — 503 — separate from each other, each being furnished with all appliances for melting iron and moulding. On the day in question, the fires had gone out in the room in which deceased was employed, and he was ordered by the foreman, who had entire charge of the men, to go with two others to get a ladle of iron from the other room, and bring it into the room where he was employed. To do this it was necessary to go out of doors, and into the open air.. On this day the ground over which it was necessary to pass was covered witli ice, and water standing on the ice, making it very slippery, and there was no other way to get this iron. On returning, and while passing over the ice, the man in the rear slipped down, and the molten iron was brought into contact with the water and ice, from which a violent explosion ensued, and deceased was, with one of the others, so injured that they died shortly afterwards, having made no statement of the manner and cause of the accident, and there was no eye-witness to the accident but the man who slipped down. The undisputed testimony was that deceased was a good and careful man. The suit is for damages arising out of Smith’s death. The negligence charged against defendant is that the passage-way was not safe, and that Smith was not notified of the danger arising from the contact of molten iron with ice or water. Plaintiff’s claim is that this was not a proper and suitable place to perform deceased’s labor, and that the danger of an explosion from contact of ice with molten iron was a latent danger of which deceased was ignorant, and one not within the usual hazards of the employment, and that defendant was guilty of negligence in sending him to do work in such a place, and in not informing him of the danger of a passage over the icy way with the molten iron. The defense is that the passage-way was safe ; that its dangers were open, and were voluntarily assumed; that Smith was as likely to know as defendant’s managers of the effect of the meeting of molten iron with water or ice; and, lastly, that the proof shows that Smith’s death resulted from his own carelessness and that of Nay. When the plaintiff rested, the court below — 504 — directed a verdict for defendant. There are several exceptions as to the rejection of testimony, but the main question is on the charge of the court directing the verdict. When the case was heard, my impressions favored the ruling made by the judge of the superior court, but a careful examination of the record, and more thorough investigation of the case, has very essentially modified those impressions. Indeed, I think the facts and circumstances stated by the witnesses, under the law applicable thereto, required the case to go to the jury. It has come to be very well settled that in large manufacturing institutions, like that of the defendant, the proprietors or masters are bound to furnish a suitable place in which work may be performed with a reasonable degree of safety to the persons employed, and without exposure to dangers that do not come within the obvious scope of the employment in the business as usually carried on : Swoboda v. Ward, 40 Mich. 423; Huizega v. Cutler & Savidge Lumber Co., 51 Mich. 272; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Parkhurst v. Johnson, 50 Mich. 70 ; Smith v. Oxford Iron Co., 42 N. J. Law, 467; Baker v. Allegheny Valley R. Co., 95 Penn. St. 211; Cooley Torts, 553. It is presumed that the master or foreman placed in charge of and conducting a manufacturing business knows and is familiar with the dangers, latent and patent, ordinarily accompanying that business ; and if there are latent risks that a servant is, from ignorance or inexperience, not capable of understanding and appreciating, or which he would not be likely to know, the master should inform him of such dangers: Whart. Neg. § 209; Coombs v. New Bedford Cordage Co., 102 Mass. 584; Cooley Torts, 549; 2 Thomp. Neg. 979; Strahlendorf v. Rosenthal, 30 Wis. 675; O'Connor v. Adams, 120 Mass. 427; McGowan v. La Plata Min. Co., 3 McCrary (U. S.) 397 ; Dowling v. Girard B. Allen Co., 14 Cent. Law J. 92; Hathaway v. Michigan Cent. R. R. Co., 51 Mich. 253; St. Louis & S. E. Ry. Co. v. Valirius, 56 Ind. 511; Wood Mast. & Serv. § 349 ; Michigan Cent. R. R. Co. v. Smithson, 45 Mich. 212; Chicago & N. W. Ry. Co. — 505 — v. Bayfield, 37 Mich. 205 ; O'Connor v. Adams, 120 Mass. 427. I do not understand that the obligation of the defendant would be discharged by informinglhe servant generally that the service engaged in is dangerous; especially where the servant is a person whojieither by experience nor education has, or would b.e'likely to have, any knowledge of the perils of the business, either latent or patent, but that in such case the servant should be informed, not only that the service is dangerous, and of the perils of a particular place, but where extraordinary risks are or may be encountered, if known to the master, or should be known by him, the servant should be warned of these, their character and extent, so far as possible. It seems to me the value of-human life, and the duty of the master in affording reasonable protection to persons while under his direction, cannot be held to require less than this : Cooley Torts, 554 ; Coombs v. New Bedford Cordage Co., 102 Mass. 572, 596; E. Saginaw City Ry. Co. v. Bohn, 27 Mich. 503 ; Union Pac. Railroad Co. v. Fort, 17 Wall. 553. Of course, this rule would not require the employer to become responsible to the servant for any injury he might receive, while in the employment of the master, resulting from those dangers which are the subject of common knowledge, or which can be readily seen by common observation. Such risks, and the danger therefrom, are always assumed by the servant when he engages in the service; but when the danger to be avoided requires a knowledge of scientific facts, or is the result of well-known chemical combinations among well-educated men, then I think the rule applies with much force, and cannot be ignored. I do not think the court can presume that the common laborer in a foundry or machine-shop, such as this was, is possessed of the scientific knowledge necessary to enable him to comprehend and avoid any such danger as overtook Mr. Smith on that icy way, resulting in his death; and I think, before he was called upon to perform the hazardous undertaking by Mr. IToban, the foreman in charge, he should have — 506 — been informed somewhat of its dangerous character. This-, however, was not done, and there is no pretense that the death of Mr. Smith was not caused by the explosion which followed the contact of the molten iron with the water and ice covering the dangerous passage over which the same was required to be carried. And I think it may safely be said that, had Smith known of the dangerous character of the service arising from the accidental contact of the water and ice with the melted iron, he, in all probability, would have refused to perform the service required. I know it is said he passed over the icy track but a few moments before the accident occurred, and did so safely, and must have observed the danger of falling. Conceding this, and that he was willing to take the risk of such danger, he certainly (if he did not know that the molten iron cast upon the water and ice would cause an explosion) could not have consented to take the risk of a fatal explosion. This was the danger he was subjected to in obeying the command of his employer, and of which he had no notice or knowledge, as is claimed by the plaintiff, and it is the.neglect of the company, or its foreman, to notify the servant of such latent danger that she (plaintiff) makes the basis of her suit in this case. The suggestion of the foreman to the men carrying the molten iron, that they worked or were going too fast, was no-notice that if they allowed the water and ice to come in contact with the molten iron there would be danger of a terrific and perhaps fatal explosion. The testimony showed that Smith was a good workman and a careful hand. I do not think,, because these men whistled and sang, “ or were laughing and talking and full of fun ” while in the performance of this work, this tended to show any negligence or carelessness on their part, but was rather indicative of the good nature and happy disposition of these servants. The law requires no such strained construction of the indications of the better feelings of our nature to excuse actionable negligence when accompanied with liability. It is also suggested that it was as much the duty of Smith. — 507 — to have made the way safe over which the iron was carried as it was of any one. I do not so understand the law applicable to the facts contained in the record. Smith was under the direction of the foreman in all that he did, and the record does not show that he had any authority to clear this way of ice, or cover it with some other material. It was the duty of the foreman to know of its condition and safety before sending these parties over it. Smith had never carried molten iron over it before. It was not really the department in which he worked. It nowhere appeal’s that the manner in which the iron was carried, or the neglect of any duty devolving upon Smith, was the occasion of his slipping upon the ice. Was there any negligence shown, or was there any testimony reasonably tending to show, that the defendant was guilty of negligence in the matter ? It is true, if the plaintiff’s intestate had knowledge of all the facts, or had notice of all the facts, resulting in the fatal danger, before the accident occurred, then the plaintiff could not recover; but, as I have before said, he cannot be presumed to have known them under the testimony in this case, and certainly the record does not show that the defendant ever gave him any information upon the subject. I think it was the duty of the defendant, by its agent or foreman, to have informed Smith of the dangerous character of the service, and it was incumbent upon the defendant to show that Smith had knowledge or notice of such extraordinary danger, — a danger not liable to exist or be incurred in carrying on the work which he was engaged to perform in the usual place and in the usual manner; and if the agent in charge had not such knowledge, or was not qualified to give such information to the servant, the defendant was guilty of negligence in not furnishing a foreman with the proper qualifications for the position. In the absence of testimony showing the proper notice given by the agent in charge, or knowledge on the part of the servant, it is difficult to perceive how Smith could be said to be guilty of contributory negligence, or how he could be — 508 — said to have assumed all the risks and perils, ordinary and extraordinary, incident to the employment: McGowan v. La Plata Min. Co., 3 McCrary (U. S.) 397 ; Kibele v. Philadelphia, 105 Penn. St. 41 ; Gilmore v. Northern Pac. Ry. Co., 9 Sawyer, 558; Spelman v. Fisher Iron Co., 56 Barb. 151; Parkhurst v. Johnson, 50 Mich. 70 ; Smith v. Oxford Iron Co., 42 N. J. Law, 475; Wood Master and Servant, 749; Ford v. Fitchburg R. Co., 110 Mass. 240 ; Fuller v. Jewett, 80 N. Y. 46; Wright v. New York Cent. R. R. Co., 25 N. Y. 569; Greene v. Minneapolis & St. L. R. Co., 31 Minn. 248 ; Wabash Ry. Co. v. McDaniels, 107 U. S. 454; Hough v. T. & P. Railway Co., 100 U. S. 214; Corcoran v. Holbrook, 59 N. Y. 517 ; Teipel v. Hilsendegen, 44 Mich. 461; Billings v. Breinig, 45 Mich. 71. The facts from which contributory negligence are proper to be inferred ought to have been submitted to the jury, and there was testimony from which the jury might have found defendant guilty of negligence, and the court should have left both questions to the jury. These views render the consideration of the other assignments of error unnecessary. The judgment must be reversed, and a new trial granted. Champlin and Morse, JJ. concurred.