Borkowski v. American Radiator Co.

Brooke, J. (after stating the facts). Defendant’s first contention is that there is no liability, for the reason that plaintiff’s injury resulted from a transitory act of negligence on the part of a fellow-servant; that act being the placing of the ladle which plaintiff secured in an improper place, where it was liable to collect and hold rain water. In our opinion this is not a case in which this doctrine can be invoked. The record shows that Reinke, in the performance of his duty, customarily collected the ladles and wheeled them out under this uninclosed shed, where they were piled or scattered somewhat promiscuously. Reinke testified: “As I bring these ladles out, I pile them up in different places around underneath that shed. The shed is wide open on the outside.” Tie further testified that he never put any ladles in the place from which plaintiff took the one which occasioned his injury. It would seem that an open shed would afford little protection to the ladles in case of rain. The record does not show that it was Reinke’s duty to keep them dry after he had collected them and before he had relined them for use next day; nor does it show that he handled them on the day in question, in any other than the usual manner. But the whole matter of alleged transitory negligence appears to us to be unimportant, because plaintiff does not predicate his right to recover upon the fact that defendant negligently permitted the ladle which caused his injury to be so placed as to collect water, but says that defendant was negligent only in not warning him of the fact that, if he permitted molten metal to come into contact with water, an explosion would follow. His testimony is to the effect that he was ignorant of this danger; that no such explosion had occurred within his observation during his employment as a molder’s helper. It seems to us apparent that the ladles used by the molder’s helpers would be very unlikely to contain moisture, for the record shows [272] that after relining they were baked in an oven and kept dry until required for use. The extent of plaintiff’s experience and his opportunity for observation of like phenomena were fully placed before the jury. We do not think it can be said as a matter of law that his experience was such as to make him guilty of contributory negligence in placing the ladle containing a small amount of water under the flowing molten metal. Defendant insisted that it was such, and that question was fairly submitted to the jury. It was further urged by the defendant that the accident occurred through the carelessness of plaintiff in so placing the ladle under the stream of metal as to permit it to fall, not into the ladle, but upon the cold, iron shank with which the ladle was held. This theory likewise was presented to the jury, and they were instructed that, if plaintiff received his injury because of this alleged act of negligence, he could not recover. We have frequently held that it is the master’s duty to warn the servant of latent dangers, which he (the servant) through ignorance or inexperience was not capable of understanding or appreciating, or which he would not be likely to know; and the liability of an explosion following the mixing of molten metal and water has been held to be such a latent danger.. Smith v. Car Works, 60 Mich. 501 (27 N. W. 662, 1 Am. St. Rep. 542), and cases cited; Ribich v. Smelting Co., 123 Mich. 401 (82 N. W. 279, 48 L. R. A. 649, 81 Am. St. Rep. 215); Adams v. Refrigerator Co., 160 Mich. 590 (125 N. W. 724, 27 L. R. A. [N. S.] 953). See, also, Tissue v. Railroad Co., 112 Pa. St. 91 (3 Atl. 667, 56 Am. Rep. 310); McGowan v. Smelting Co. (C. C.), 9 Fed. 861; Holland v. Railroad Co., 91 Ala. 444 (8 South. 524, 12 L. R. A. 232). Error is assigned upon that portion of the charge in which the court used the following language: “Now, whether there was the duty upon the master in the particular case to give any such warning I think is wholly a question for you, under the existing circumstan [273] ces, because, gentlemen of the jury, it is not essential to warn a man of danger which in the nature of things he must appreciate.” The use of the words ‘ must appreciate ’ in the foregoing excerpt is objected to. Standing alone, this portion of the charge might be misleading, but when read with the context it is apparent that the jury could not have been misled as to the standard of duty imposed upon the master. The court later said: “ It is for you to say, gentlemen of the jury, whether that experience that he had, prior to that time, would have rendered it unnecessary that a person should warn him of the danger to be apprehended from bringing molten iron into contact with that amount of water. Of course, gentlemen of the jury, all the evidence in this case shows the extreme danger which results when a certain amount . of hot iron is poured upon water, or hot iron is poured upon water; the proofs show that there is an instantaneous conversion of water into steam, and an explosion does follow, unquestionably; that all the evidence and the testimony shows; and it is for you to say whether his prior experience, concerning which you have heard the testimony of the plaintiff, and the testimony as adduced by the defendant, should have taught him of the danger to be apprehended by the water which he testifies was in the ladle. If, gentlemen of the jury, that experience should have warned him, then, of course, no warning which could be given him by the company would have been of any benefit.” A careful reading of the entire charge convinces us that the case was properly and fairly submitted to the jury, both upon the question of plaintiff’s contributory negligence (based upon his experience) and upon the defendant’s theory of the manner in which plaintiff received his injury, Under the facts disclosed by this record, both issues were properly before the jury. The judgment is affirmed. Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.