Murray v. Natchez Drug Co.

'Whitfield, C. The theory that the explosion was caused by dynamite is wholly untenable. It was manifestly caused by gas. The facts in the ease are substantially as follows, as fairly set out in appellant’s brief: “On Friday, March 13, 1908, the'gas company was notified to turn on the gas, and about 2:15 of that day Frank'O’Brien, the employee and representative of the gas company, turned on the gas, the gas pipe having a capacity of sixty cubic feet per hour. (See page 42, line 7, of the record.) Almost immediately after this was done the odor of escaping gas was detected in the building and in the laboratory. (See pages 49 and 51.) Nothing was done about this, however, and Saturday morning, when the girls came to work about 8 o’clock a. m., the presence of gas was so noticeable that the windows in the laboratory were raised. (See page 49.) The plumber was notified, and sent his assistant, Mr. Burns; but he could not locate the leak, and about 9 o’clock a. m. Mr. Daub asked O’Brien, the gas company’s representative, to find the leak, and stated that Burns could not find it. (See page 44.) O’Brien then cut off the gas, after satisfying himself that there was no leak between the meter and the gas mains in the street, the part he had installed, and about 10 o’clock a. m. notified Burns that there was a leak in the gas connection inside the building, and that he had rejected the pipework. (See page 45.) About 10:30 a. m., same day, Burns appeared at the office of appellee, and asked Mr. Hodge, the bookkeeper, for the keys to the room where the meter was kept; this room being known as the “corn room.” [267] The keys were given him, hut no officer of appellee took enough interest to go along and look into the matter. Burns turned on the gas, and in about fifteen minutes returned to the office of appellee with the keys and said: “I have found the leak and fixed it.” This happened at 10:45 a. m.. (See page 25, lines 4 to 22.) At about 11:30 the same day, Mr. White, an employee of appellee, who at the time was filing the place of vice-president, who was absent, appeared at the office and asked Mr. Chambliss, the president of the company, if he smelled gas, and Mr. Chambliss replied that it had been attended to. Mr. White then rushed on .to his business. (See pages 60 and 61.) Mr. Mallery, another employee of the appellee, who had charge of the second floor, detected the odor of gas about 10 a. m., but went on with his work until between 11 a. m. and 12 m. Mr. White, prescription clerk for appellee, came up to the second floor and advised Mr. Mallery that he had better have something done about the gas or it would knock him out. (See pages 59 and 60.) Upon receiving this advice, Mr. Mallery telephoned to the office, and notified the office that gas was escaping in the building. This notice was given after 11 a. m., but before 12 m,, and as witness testified about 12 m., the same day. (See page 60.) Nothing was done in the premises, as testified to by Mr. Hodge, the office man, until about a quarter or ten minutes to 2 o’clock that afternoon, when Mr. Mallery telephoned to Mr. Burns about the leak. (See page 26.) Nothing else was done in connection with the matter by appellee. There was no interruption of the business. The place was not closed down, or the girls or other employees sent home, until the dangerous condition of affairs could be remedied. The appellee contented itself with telephoning. (See page 26.) “The explosion occurred about 2:45 p. m. of the same day, Saturday, March 14, 1908, and a few minutes before the explosion Burns, the plumber’s assistant, was seen in the laboratory by Miss Simms, an employee, with a [268] lighted candle in his hand. While there he lit the gas in the laboratory, blew it out, gave it as his opinion that the leak was below, and left the laboratory with the lighted candle in his hand. (See page 50.) Some minutes later the employees, and the community generally, were startled by the noise .and shock of an explosion. The building of the Natchez Drug Company was a wreck, Mr. Laub, the chemist and vice-principal, Mr. Burns, the plumber’s assistant, and about ten young ladies, including the daughter of appellant, were all dead, their bodies in the ruins beneath an immense pile of debris. Immediately upon hearing the noise of the explosion, Miss Simms and Miss Booth, two employees who worked in the laboratory, and who were in the dressing room at the time, rushed out in the direction of the laboratory, but were met at the laboratory by a gush of suffocating smoke, which smelled of gas and which issued from the laboratory. They turned affrighted and fled down the stairs to'the street and safety, the only survivors of the ill-fated number who worked in the laboratory. All other employees of the appellee escaped. (See pages 49 and 50.) A few seconds after the explosion the west wall of the building was seen to split open at the top and collapse. The rear wall had already been blown down, as well as the east wall as evidenced by the fact that the witness who saw the west wall give way (Chas. Fitzpatrick) testified that after the west wall fell in he could see right through and beyond the building. (See pages 16 to 17.) Throughout the entire day of Saturday, March 14, 1908, the odor of escaping gas was noticeable in the laboratory, but the chemist and vice-principal of appellee did not permit this to interrupt his work in the chemical department, but was seen at his work throughout the day up to the time of the explosion, and after his request of Mr. O’Brien at 9 a. m. to locate the leak does not appear, from the evidence, to have in any way concerned himself further about the matter. There was a system of private [269] telephones connecting the office with different parts of the building, but no inquiry was made from the office of the laboratory or other department as to the condition as regards the leaking gas. All the witnesses who testified to the presence of gas in the building and the incidents above related were employees of the company, and, with the exception of Miss Booth and Miss Simms, were in the employ of the appellee at the time they testified. ’ ’ The court on this testimony gave a peremptory charge for the defendant. The defense chiefly relied on is contributory negligence and the assumption of risk on the part of the deceased employee whose mother brings this suit. The suit is bottomed on the non-delegable duty of the master to furnish the servant a safe place to work. This court has said on this subject, in the well-considered case of Alabama & Vicksburg Railway Company v. Groome, 52 South. 703, through Justice Smith: “The duties of the master relative to furnishing the servant a safe place in which to work cannot qrdinarilv be delegated to fellow-servants, and the risk relative thereto is not such as is ordinarily assumed by the servant.” See exhaustive review of authorities contained in notes to Fitzgerald v. Southern Railway Company, 6 L. R. A. (N. S.) 337. This is a correct announcement of the law on this subject, and as a matter of law, therefore, on the facts of this case, no. assumption of risk nor contributory negligence can be charged to the deceased employee. It was the duty of the master to use every reasonable effort to see that the place in which these employees worked was safe, and they had a right to assume that this duty would be strictly complied with. Besides which, even if the doctrine of contributory negligence and the assumption of risk could be invoked, it is equally clear on the testimony which we have set out that whether the deceased employee was guilty of contributory negligence or as [270] sumed the risk was a question, of fact for the jury, and not for the court. Keeping in mind the whole of the testimony which we have stated above, it is plain that this gas was escaping into the laboratory from Friday evening until the time of the explosion, 2 p. m. Saturday; that the chemist had his attention called to it several times, and made some perfunctory effort to have the situation remedied; that O’Brien, the employee of the gas company, and Bums, the assistant plumber, were there several times engaged in an effort to locate the leak and correct it; and, what is most significant of all, that Chambliss, the president of the defendant company, was asked by White if he did not smell the gas, and replied that it had been attended to; that his office had been telephoned about the escaping gas, and need for having it corrected, and, though he was not at the moment in the office, he came in just a few minutes afterwards; that he therefore knew himself, some time before the explosion, of the escaping of the gas, and, of course, the danger therefrom, and yet contented himself with doing nothing further about it than giving it this purely perfunctory attention. It is impossible to say, on any fair view of this testimony, taken as a whole, that the master complied with the strictness of the rules of law requiring him to use every reasonable precaution to see that the place of work was safe, and that there was not, therefore, such negligence shown as would take the case from the jury, whose peculiar duty it is to pass upon the facts as to whether contributory negligence existed, even if it could be invoked in a case based on the master’s failure to supply a reasonably safe place in which to work. The peremptory instruction should not have been given. Reversed and remanded. Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded for a new trial.