129 Va. 112 | Va. | 1921
delivered the opinion of the court.
A. L. Brown, a laborer, while employed by the E. I. DuPont de Nemours and Company, was injured by having his feet and legs burned by the refuse liquid acid in the place designated in the record as the “nitre cake dump” or “salt cake bed” or “basin,” in Plant A. A jury found a verdict in his favor upon which the court entered judgment, and of this the company is here complaining.
There are two assignments of error — one that the court erred in refusing to give certain instructions asked for by the company, as well as in giving over the company’s objection certain instructions asked for by the plaintiff; and the other that the verdict is contrary to the law and the evidence.
“The court instructs the jury that if they believe from, the evidence that a person of ordinary prudence whose mental and physical powers and whose opportunities for observing the conditions by which he was surrounded and the facts indicative of danger were the same as those of the plaintiff would have realized the risks and dangers of work
“If you believe from the evidence that the plaintiff knew or that he should have known of the danger of working around the salt cake basin he must be held to have assumed the risk of woiking there and he cannot recover.”
The court amended it by striking out, in the first paragraph, immediately following the word “knowledge,” these words, “of the conditions which caused the injury and of the risks incident thereto,” and substituted therefor the word “thereof,” so as to make the latter part of that clause read, “then the plaintiff himself must be held to be chargeable with knowledge thereof.”
As already stated, every defensive theory of the company which the evidence justified was concretely presented by the numerous instructions given for the defendant, read as a whole. The company insisted during the entire trial that the plaintiff should not recover because he had assumed the risk of such an injury, but the court properly refused to take this question from the jury. It, however, denied the company no right, but clearly presented in the instructions' this view of the defendant. It is apparent that the jury did not so find, because they did not believe the evidence justified such a conclusion. No objection is perceived to the instruction No. 10 as amended.
The assumed risk doctrine was also fully covered by other instructions.
Exception is taken to this upon the ground that it is confusing with reference to the duty involved, and an effort is made to distinguish between the particular place at which this accident occurred (i. e., a place in the plant of the company variously estimated by opposing witnesses at from four to eight feet wide, separating the railroad track and the nitre cake basin), and a permanent place of work, in a factory or shop. It is conceded in argument that it might not be improper to give such an instruction if the place of the injury were such a permanent place of work in a factory, or shop; and special emphasis is laid on the fact that the jury are told that the duty with reference to providing a safe place “extends to every portion of the place in which the master’s business is conducted, from which danger is reasonably likely to result in the servant’s injury.” We do not think that there is any reason to suppose that the jury were misled by this instruction. The place referred to in the evidence is fully identified, and is the narrow strip of ground between the nitre cake basin and the railroad car, at which the plaintiff was engaged in loading the heavy
It is conceded by the attorney for the company that this instruction may state a correct abstract principle of law, but it is claimed that in this case it is misleading, confusing and without support in the evidence. One of the objections is said to be that it assumes that the foreman of the two gangs of laborers were vice-principals. There are varying circumstances under which a foreman, in giving orders and directions as to the master’s work, may be either a vice-principal or a fellow servant. It is not necessary
In Clarke v. Portland Cement Co., 106 Va. 123, 55 S. E. 587, this identical instruction is approved, and this is pertinent from 4 Labatt on Master and Servant (2d ed.), sec. 1470, p. 4304: “But there is an overwhelming weight of authority to sustain the doctrine that the liability to which the master is declared to be subject wherever ‘the negligent act is a direct result of the exercise of power conferred by the master, in the performance of a duty devolving by law upon him,’ is predicable in the case of orders issued in respect to the work, whatever may be the precise object to which those orders may have relation. It is, in fact, difficult to see what more indisputable example there can be of an ‘exercise of authority’ than the giving of such orders and for the. purpose of affecting the master with liability in this instance, it is obviously quite immaterial whether the delinquent employee be a mere superior servant or a general or departmental manager. According to the great majority of the cases, therefore, all that is necessary to fix liability upon a master is that the negligent order 'which caused the injury should be proved to be incident to the performance of the duties of his position.” Lane v. Bauserman, 103 Va. 152, 48 S. E. 857, 106 Am. St. Rep. 872; Ches. & O. Ry. Co. v. Meadows, 119 Va. 57, 89 S. E. 244; Millboro Lumber Co. v. Donald, 120 Va. 155, 90 S. E. 618; Lynchburg Foundry Co. v. Dalton, 121 Va. 489, 93 S. E. 587; Turner v. Richmond & R. R. R. Co., 121 Va. 200, 92 S. E. 841; Lynchburg Tr. & L. Co. v. Gordon, 123 Va. 198, 96 S. E. 195.
This nitre cake basin in Plant A was a lake or pond 300 by 600 yards in size, in which the liquid refuse of the acid which was used by the company in the manufacture of gun-cotton. and powder was deposited. The crust of it, when the liquid cooled, became white “like snow or ice caked over,” and its existence was well known, indeed obvious. At some places it was guarded by a wire fence, and at intervals around its margin were signs, on both sides of which were in red letters these words of warning: “Hot! Do not walk here.” This liquid, even after the top had become encrusted, was dangerous, and the crust was not sufficiently strong to bear the weight of -a man, so that one who stepped or fell into it would inevitably be burned and seriously injured. At the precise place at which the accident occurred there was no wire fence guarding the shore and the narrow gauge railroad track or tramway ran close thereto, the distance being variously estimated at from four to tight feet therefrom. The track ran through both Plants A and B, and was used for transporting materials and supplies. While the plaintiff usually worked at
The case upon the facts is very close indeed, and there is evidence which would have justified the jury in reaching the conclusion that the plaintiff should not be allowed to recover because of his own inattention and lack of care. If the jury had so found, we would not have disturbed the verdict. They, however, upon a fair conflict in the evidence as to the lights, and with full knowledge of all the surrounding circumstances, have acquitted him of contributory negligence.
The trial court committed no error of law in the conduct of the trial, and the verdict of the jury, upon the record presented, must be regarded as conclusive.
Affirmed.