Crossett Lumber Co. v. Land

121 Miss. 834 | Miss. | 1920

Holden, J.,

delivered the opinion of the court.

This is a suit by attachment in chancery against the appellant, Crossett Lumber Company, a foreign corporation, and certain other persons named as-garnishees.

■ The appellant, Crossett Lumber Company, was engaged in the business of manufacturing, selling, and constructing silos. The complainant, Land, a man thirty-five years of age, was a contractor and builder by profession and trade. He had been engaged in his trade as carpenter and contractor for about ten years prior to the injury complained of in this case. He was a man of considerable education and experience. The appellant company employed him to superintend the building and construction of certain silos at different points. A book of instructions was furnished him showing the proper method of constructing a silo. Amongst other things in the book was a reference to the use of a certain preparation of asphaltum and creosote substances to be applied to the bottom of the staves to be used in the building of silos. ,

The complainant, Land, in the course of his employment as superintendent of the construction of the silos, was instructed that the ends of the staves resting upon the cement foundation of the silo should be creosoted before the staves were driven to their places in the grooves of the silo. At first the creosote was applied to the ends of the staves with a brush; but, this method of application proving faulty in the erection of one of the silos, the agent of the appellant company instructed Land to dip the ends of the staves in the creosote instead of using the brush. In pursuing this method a stave was dipped about six inches into the bucket of creosote preparation, and, before it drained off, was placed in the groove and was struck by one of the employees working under Land, and driven into its grooved place, whereupon a drop of the creosote preparation flew from the stave into the eye of the appellee, permanently impairing his eyesight, for which injury the trial court awarded a decree for two thousand dollars.

The suit for the injury is predicated solely upon the ground that the appellant company was negligent in failing to instruct Land that the creosote preparation usld on the ends of the staves was dangerous in its use and would injure him if it should fly off of the staves into his eye; and that the failure to inform him of this danger, coupled with the fact that the agent of the appellant company had instructed Land to dip the ends of the staves in the preparation, instead of putting* it on with a brush, and thereby causing a surplus quantity of the preparation to accumulate on the ends of the staves thus making it possible for it to fly off into his eye, constituted negligence on the part of the appellant company, and caused the injury complained of.

The testimony in the record is undisputed that at the time of the injury Land was acting as superintendent of the work and had full control and direction of the dipping of the staves in the creosote and the driving of them into the groove position.' When the stave was struck and driven by the employee, under Land, he failed to shut his eyes or turn his head away from the creosote stave, and a drop of the creosote flew into his eye. The agent of appellant company was not present at the time of the injury.

It appears without dispute that Mr. Land was a man of intelligence and had many years or experience as a contractor and builder; therefore we think he not only was bound to know that the preparation used on the staves contained creosote, because he could see and smell it, but in addition to this it is shown that the book of instructions, which he testified that he had read carefully, specifically called his attention to the use of the creosote preparation on the ends of the staves in the construction of the silos. Undoubtedly, Mr. Land must have had, under these circumstances, definite knowledge that the preparation he was using on the staves contained creosote which would burn the skin or injure the eye if any portion of it should come in contact therewith.

It is further shown by the undisputed proof that Mr. Land was experienced in building and construction works, and was competent; therefore it is reasonable to conclude that ordinary observation would have made obvious the danger incident to the use of the creosote preparation.

The employer is not bound by law to give instructions to an employee who from intelligence and experience, or knowledge, is able to appreciate the danger of the employment which he has undertaken. The danger here was an ordinary hazard of the employment, of which the appellee must have had knowledge. He not only knew of the danger from the common observation of an experienced and intelligent person, but he had knowledge from the discussion of the use of the creosote in the book of instructions which he had read and followed in his employment.

We do not think that the appellant company was guilty of negligence under the proof in the case. It was an unfortunate accident, which probably might have been avoided had the appellee been more prudent. Railroad Co. v. Downs, 109 Miss. 142, 67 So. 962; Hanel v. Obrigewitsch (N. D.), 168 N. W. 45, 9. A. L. R. 1029; 18 R. C. L. 570; Labatt’s Master and Servant, vol. 1, section 239; Y. & M. V. R. R. Co. v. Perkins, 108 Miss. 111, 66 So. 273.

In view of the conclusion reached above, the decree of the lower court must be reversed, and judgment entered here for the appellant.

Reversed, and judgment here for appellant.