56 So. 995 | Ala. | 1911
Plaintiff sued to recover for personal injuries, and the case was submitted on the following agreed statement of facts, which ivas all the evidence :
“On the 15th day of March, 1909, plaintiff was an employee of defendant. While engaged in the regular course of his employment, he sustained injuries by ammonia gas escaping from an ammonia tank, which Avas being broken by the steam hammer of defendant. Plaintiff’s injuries confined him to his bed and incapacitated him from working for three weeks, Aveakened his eyesight, and caused him to be short-winded. This ammonia tank had been taken from a pile of scrap iron on defendant’s yard, and the ammonia tank and scrap iron had been on defendant’s yard for about two years That defendant Avas in the habit of purchasing for its rolling mill large quantities of scrap iron, and had purchased this ammonia tank as scrap iron, and it had been in the scrap pile on defendant’s yards, as stated, for something over two years; that the defendant had just before this accident broken up as scrap iron several other ammonia tanks similar to the one which injured plaintiff and found nothing in them and nothing wrong Avith the same.
“The tank in question Avas a 9-inch tank about 6% feet long, and was charged Avith ammonia gas, a substance dangerous when allowed to escape. It was not known, koAvever, to defendant, or any of its agents or employees that it was charged with ammonia gas or*618 any other substance. No inspection had been made of it; nor had any inspection been made of the other ammonia tanks which had been broken up as scrap iron. The ammonia tank in question had been taken from the scrap pile and placed on the steam-hammer anvil by order of Lee Coker, who was intrusted with superintendence in that respect by the defendant. The employees started to mash or break up this ammonia tank into scrap iron in the usual maner, by placing one end on the steam hammer anvil, with, the other end resting on the sawhorse. The men who placed the tank on the sawhorse and anvil stepped back to get out of the range of the flying particles of iron, and the man operating the steam hammer struck the tank a light blow with the hammer.' There was no- noticeable effect from the blow, except a slight flattening of the end of the tank, but when the hammer was raised the ammonia or gas gushed out, shooting the tank out from under the anvil and around in a semi-circle to a point about 30 feet from the hammer, and on the opposite side from that on which it was resting when struck. The ammonia was scattered during the flight of the tank, and plaintiff was injured as a result of the escaping ammonia from the tank. The tank in question and others which were broken up were of the kind in which ammonia gas is ordinarily kept, although they were all purchased by defendant as scrap iron, to be used as scrap iron, and had been put in the scrap-iron pile on defendant’s yards.”
The complaint formulates the charges of negligence on the part of the defendant, through its superintendent in charge of the work, in the following terms: (A) He ordered the plaintiff and others to put said ammonia tank on said hammer, to be broken thereby, when he knew, or ought to have known, that the said tank was
The record is silent as to what pleas were interposed by the defendant, and we presume the submission was on a plea of the general issue. The trial court gave to the jury the general affirmative charge for the defendant, and there was judgment accordingly. Thus the only question here is whether the evidence offered, there being no dispute as to the facts, was of such a character as to prima facie show negligence on the part of the defendant employer, or to permit any rational inference favorable to that view.
The situation presented here is novel, and falls within the twilight zone, where law and fact intermingle, and the boundary between them becomes difficult to distinguish.
It .is the nondelegable duty of the master to exercise due care and diligence to furnish reasonably safe and suitable materials and appliances to the servant who has to work with them. — Tutwiler C. C. & 1. Co. v. Farrington, 144 Ala. 157, 168, 39 South. 898; Southern Ry. Co. v. MoGowan, 149 Ala. 440, 43 South. 378; Smith v. Watkins & Donelson, 172 Ala. 502, 55 South. 611. The servant may assume that what is thus furnished is free from defect, and he is not required to exercise ordinary care to ascertain the defect. — 149 Ala. 440, 43 South. 378.
A necessary corallary to the duty just stated is that materials which are apparently dangerous to use, by reason of some quality or condition, or which, though apparently innocent, may, by reason of antecedent conditions known to the master, harbor a hidden danger,
Where the law has not prescribed the special conduct due from the master under the particular circumstances, no more is required of him than “that degree of care which very careful and prudent men exercise in their own affairs.” — Williams v. Anniston E. & G. Co., 164 Ala. 84, 51 South. 385. So negligence is the doing of something which a prudent and reasonable person would not do, or the omission to do something which a reasonable and prudent man would do, guided by those considerations which ordinarily govern the conduct of human affairs. — Garlick v. Dorsey, 48 Ala. 220.
In the application of these general principles to the particular facts in hand, we are aided by no Alabama decision, and from other states we find only two cases which seem to be approximately pertinent.
In Purdy v. Westinghouse Co., 197 Pa. 257, 47 Atl. 237, 51 L. R. A. 881, 80 Am. St. Rep. 816, it was held that the use of barrels that had formerly contained oil, alcohol, turpentine, benzine, whisky, and other things, for the shipment of iron castings, does not render an employer liable for injury to an employee by explosion of a barrel caused by lighting a match to read the number on the barrel, done in the line of his service, when it is not shown that the employer had any knowledge that there was danger of an explosion in the use of such barrels. Says the court, per McCollum, J.: “There is no testimony in the case which shows that the defendant company, or any person connected with it,
In the case of Neveu v. Sears, 155 Mass. 303, 29 N. E. 472, the plaintiff, a stone mason, was dressing a stone furnished to him by his employer, the defendant, when the stone exploded and injured the plaintiff. The stone had. been blasted with dynamite from the defendant’s quarry, and there was evidence that, notwithstanding precautions taken at the quarry, unexploded dynamite had been found in the drill holes of some of the stones there quarried. It was held that the question whether defendant had exercised reasonable care in discovering and removing unexploded dynamite from the stone before delivery to the plaintiff was for the jury. Says
It is apparent at a glance that Neveu v. Sears, in its material and decisive aspects, is very strongly analogous to the present case, if, indeed, there be any valid distinction at all. Here the material furnished to the injured man, to be broken by violent percusión, was a metal gas tank “of the kind in which ammonia gas is ordinarily kept.” This tank bore upon its face the history of its former use as a receptacle for an explosive gas, which might be dangerous to human beings, if suddenly exposed to it in sufficient quantity. It may be that the weight of probability is that those Avho use such tanks for the storage of ammonia gas would exhaust their gas-
It is, of course, true that injuries from latent defects in machinery or materials, whose presence cannot reasonably be anticipated, and which cannot be discovered by careful inspection, impose no liability on the employer.- — L. & N. R. R. Co. v. Allen’s Adm’r, 78 Ala. 494. But it cannot be said that this is a. latent defect in that sense, since the nature of the receptacle offered a rational basis for anticipation, and detection would, it may fairly be assumed, have resulted from an inspection by no means difficult or troublesome.
As already noted, the case of Purdy v. Westinghouse Co., supra, though of doubtful soundness, is distinguishable from the present case, and is not an apposite authority.
We have carefully considered the facts of the case, as well as the authorities and the able arguments presented by opposing counsel; and I cannot escape the conclusion, in line, I think, with the Massachusetts case referred to, that a jury might, in the application of their common sense and experience to the fact, have drawn legitimate inferences favorable to the negligence of the defendant. I therefore hold that the withdrawal
It results that the judgment must be affirmed.
Affirmed.