Charron v. Union Carbide Co.

Grant, C. J. {after stating the facts). 1. The evidence conclusively shows that the defendant knew that a combination of water, carbide, air, and a spark would produce an explosion. It was its duty to take every precaution possible to avoid such a condition. The defendant was also chargeable with knowledge that there was carbide in the pit of the elevator; that- the floor was so constructed that water falling upon it would reach the pit; that sparks were produced in the elevator, and that a combination of these was likely to produce disastrous consequences. So far, therefore, from this being an accident which could not have been anticipated, it was one that the company should have anticipated and used every precaution to prevent. Geller v. Briscoe Manfg. Co., 136 Mich. 330. The degree of care required is measured by the danger known to the master. 2. There was no evidence that Moriarity was guilty of contributory negligence. His work belonged entirely to another department of the business from that of Mr. Gun-yon. He was foreman of the packing department. Gun-yon was not subject to his control. There is no evidence [691] that plaintiff knew that this work was going on, and we may reasonably infer that it was being done out of his sight. But had he known what Gunyon was doing, he would have no occasion to anticipate danger. There is nothing to indicate that he had any warning of the danger. Under these circumstances he was not only guilty of no negligence, he did not assume the risk. It was not an ordinary risk which the employés in other departments assumed. 3. The only question of doubt is whether Gunyon and Moriarity were fellow-servants. Gunyon and Moriarity were employed in departments of the defendant’s business entirely separate and distinct. Gunyon is not supposed, and is not shown, to have had knowledge of Mr. Moriarity’s position or work. He was simply a steam fitter and plumber. He had nothing to do with the manufacture of the product. There was nothing in his position as a steam fitter and plumber which would cause him to know the conditions under which an explosion might .occur. There is no tangible evidence that he did know. Why he was not called as a witness does not appear. Confessedly the defendant’s superintendents did not inform him. They assumed that he knew it, and knew that the water should be drawn from the pipe, if there was any there, before he could safely do his work. The learned counsel for the defendant say in their brief that if defendant had called in an outside steam fitter or plumber it would have been its duty to tell such man the danger of water coming in contact with the carbide, and the necessity of draining the pipe before breaking it. Not only would that have been its duty, but the duty would still have remained to see that it was properly done. It was no less its duty to know, not to infer, that Mr. Gunyon, its employé, had that knowledge. This defendant cannot excuse itself upon the ground stated by its counsel, ‘ ‘ that Gunyon would presumably have become acquainted with the purposes for which carbide was manufactured, and that moisture and water coming in contact with it would generate at [692] least an inflammable gas.” Mr. Gunyon may have been a competent steam fitter and plumber without having any knowledge whatever essential to his doing the work which he was instructed to do properly and safely. The duty of defendant was the same with Gunyon in this work that it would have been with an outside plumber. The superintendent and foreman both knew the danger and the necessity of preventing it. Either could in a few moments have turned the valve at the proper place and removed the water. Common prudence would have required them to do so. They knew that their employés, working in the plant, manufacturing the product, would have no knowledge of any danger and no occasion to guard against it. It was not one of the ordinary pieces of work about which workmen might be supposed to know. It furthermore appears from the evidence that these pipes are not used in the summer time, and had not been used during that summer prior to the accident, which happened on August 16th. There would be much force in saying that Mr. Gunyon knew this and would have no occasion to suppose that the pipe would be full of water. It was the duty of the master to know whether there was water in the pipe. It was not in condition for the performance of the work which Gunyon was instructed to do, as long as there was water in it. We are of the opinion that the duty to cause the water to be removed from the pipe before instructing the plumber to do the work, which necessitated breaking the pipe, devolved absolutely upon the master and was non-delegable. This case is within the rule of the following cases: Northern Pacific R. Co. v. Herbert, 116 U. S. 642; Ford v. Railroad Co., 110 Mass. 240; Balhoff v. Railroad Co., 106 Mich. 606; McDonald v. Railroad Co., 108 Mich. 7. The judgment is affirmed. Blair, Moo;re, Carpenter, and McAlvay, JJ., concurred.