Dobbins v. Lookout Oil & Refining Co., No. 23498

No. 23498 | Miss. | Oct 22, 1923

Anderson, J.,

delivered the opinion of the court.

Appellant, J. F. Dobbins, sued the appellee, Lookout Oil & Refining Company, in the circuit court of Alcorn county for damages alleged to have been suffered by him through the negligence of appellee. There was an original and amended declaration, to which demurrers were interposed for appellee and sustained by the court. Appellant having declined leave of court to file another amended declaration, final judgment was entered dismissing the cause from which appellant prosecutes this appeal.

Appellant makes the following case by his declaration:. The appellee, a cotton oil manufacturing company, was engaged in overhauling and repairing its plant. Appellant was employed to assist in the work. I-Ie and another employee were directed by appellee’s foreman to break up the concrete floor in the building. They were instructed to use in this work a chisel with a shank about three feet long and a sledge hammer. One of them placed the chisel at the desired place, and held it by the shank while the other drove it into the concrete floor by means of striking it with the sledge hammer. Appellant was placing and holding the chisel, while the other employee was driving it into the concrete with the sledge hammer. The fellow servant, using the sledge hammer, missed the head of the chisel, and struck appellant on the knee, causing a serious injury. Appellant was only fifteen years of age, and had never had any experience in the work in which he was engaged. Appellee gave him no instructions whatever as to the dangers and hazards of his employment. The failure to so instruct is the basis of the suit. That alone is relied on as the negligence of appellee, which made it liable to appellant for the injury, he received.

Appellant contends that under the law, especially in yiew of his age, it was the duty of the appellee to give him proper instructions as to the method of performing his duties, and warn him of the dangers to which he would be exposed. There is no doubt about the soundness of the principle that, where the master knows or ought to know the dangers to -which the servant will be exposed, and knows or ought to know that the servant, by reason of bis immature years or inexperience, or both, is unable to appreciate such dangers, it is the duty of the master to give the servant such instruction and warning of the character of the employment as will reasonably enable him-to understand and avoid its perils. But this principle has no application where the danger is so apparent that the servant as well as the master must have known of it. In Railroad Co. v. Price, 72 Miss. 862" court="Miss." date_filed="1895-03-15" href="https://app.midpage.ai/document/illinois-central-railroad-v-price-7987730?utm_source=webapp" opinion_id="7987730">72 Miss. 862, 18 So. 415, this court stated the principle thus:

“If the risk and danger to which the service required to be performed., exposes the servant are plainly apparent, both the instrumentality to be employed by the servant in performing the required service and the danger to be encountered in the use of the instrumentality being obvious, so as that there shall cease to be necessity for instruction or warning, the employer may remain silent, and leave the servant to avoid clearly seen danger by the reasonable use of his own faculties.’ 72 Miss. 871, 18 So. 417.

See, also, 26 Cyc. p. 1173 et seq.; 4 Labatt’s Master and Servant (2d Ed.), section 1318, p. 3730.

What was the necessity of instructions by the master in this case? Here, although the appellant was a youth of only fifteen years of age, he must have seen that there was danger of his co-employee missing the head of the chisel with the sledge hammer, and as a result he might receive a blow either on his hand or arm, or some other place about his body. This was perfectly apparent. If appellee had seen fit to instruct appellant of these dangers, the latter would not have been the wiser by reason thereof; he would have known no more than he knew before. Appellee Avas not required to do a vain and useless thing. This case is akin in principle to Tatum v. Crabtree, 130 Miss. 462, 94 So. 449. It was held in that case tha.t the master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the Avork about Avhich such servants are engaged is dangerous to life or limb; that such rules are only required where, in addition to the danger, the Avork of the servant is complex, and the conditions which may arise are uncertain and obscure, and than where no such complexity or obscurity exists, and the danger is manifest, no rules are required because rules under those circumstances would only serve to inform the servant of what he already knew. We hold that under the allegations of appellant’s declaration no case of liability is made; that appellee was not negligent m failing to instruct appellant of the. dangers to which he would be exposed because appellant already knew of such dangers. They were manifest.

Affirmed.