Lampton v. Atkins

92 So. 638 | Miss. | 1922

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

The appellee sued the Tishomingo Gravel Company in the court below for damages for an injury received by him while employed by that company, and because, as he alleges, of the company’s negligence. While the suit was pending-in the court below Lampton was appointed receiver of the Gravel Company and the suit was revived against him as such.

The appellee’s duty Avas to dig holes in the company’s gravel pit, and when they were of sufficient depth to dig-other holes at the bottom of, and at right angles therewith, in Avhich he Avould place and explode dynamite by means of a fuse, and the declaration alleges that he Avas injured by the premature explosion of a stick of dynamite caused by “a fuse AAdiich Avas defective and faulty, and Avhich was unknoAvn to your plaintiff, and Avhich was known or could have been known by a reasonable inspection on the part of the defendant.” The fuse is in the form of a cotton rope fifty feet long, with a thread of powder running through the center, is supposed to burn one foot per minute, and when used a sufficient length thereof is cut off for the intended use. On the occasion of the appellee’s injury he dug a hole about twenty feet deep, and, desiring to explode a stick of dynamite in the bottom,thereof, so as to loosen the gravel and enable him the easier to continue digging the hole, he dug a smaller hole at the bottom thereof about three feet deep, put the dynamite in it, attached to it a cap and three or four feet of the fuse which he had cut off himself. He lighted the fuse, and signaled his helper to draw him up, which the helper did by means of a windlass and rope. When he reached the surface, which he did in about forty-five seconds after lighting the fuse, he ivas proceeding to remove the windlass when the dynamite exploded, throwing small pieces of rock to the surface, one of which struck and put out one of the appellee’s eyes. The appellee when testifying as a witness in his own behalf, was asked if the fuse was defective, and he answered that it was, assigning as his reason for so stating that “it is supposed to burn a foot a minute.” And, on being asked, “If that fuse was not defective, wou.ld that explosion have taken place in that length of time?” he answered, “No,” and on being asked if there “was anything about that fuse about which you could look at it and tell whether it was defective,” answered “No.”

The appellee introduced no testimony other than his own, but one of the appellant’s witnesses testified on cross-examination that, when a fuse burns less than a foot a minute, it is defective, in that it is “scarce of powdér.”

The fuse was of the same kind and character as that which the Gravel Company was accustomed to supply its employees, and the evidence does not disclose either that the defect therein, if such there was, was known to the company, or that it could have been discovered by a reasonable inspection of the fuse.

On this evidence the court below should have complied with the appellant’s request for a directed verdict in his favor, for, conceding for the sake of the argument that the fuse was in fact defective, in order for the appellee to recover it must appear from the evidence, as alleged in the appellee’s declaration, that the Gravel Company knew of this defect, or could have discovered it by a reasonable in spection of the fuse. Hope v. Railroad Co., 98 Miss. 829, 54 So. 369; Railroad Co. v. Bennett, 111 Miss. 163, 71 So. 310.

Reversed, and judgment here for appellant.

Reversed.

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Dissenting Opinion

Holden, J.

(dissenting). The premature explosion which destroyed the eye of appellant was caused by one of Iavo things, viz., the fuse furnished by the master was defective, or it was a different kind from that usually furnished, in that it was manufactured to explode quicker than the kind that was furnished daily by the master, and properly presumed by plaintiff to burn only a foot per minute. On the first theory it was for the jury to determine from all the facts and circumstances and the reasonable inferences to be drawn therefrom whether the master' exercised reasonable care in the inspection of the dangerous agency. And on the second theory it was a question of fact for the jury as to whether the master was negligent, in the absence of any showing of due care, in furnishing a different kind of fuse from that which the servant had a right to believe was the same kind, as to rate of burning, as usually furnished for the work. Thus “the fuse was defective or faulty,” as charged and proven.

I do not think the Hope and Bennett Cases cited in the main opinion'are in the way of the views I maintain. A careful study of these cases and the one at bar will reveal the difference between them. The decision now rendered puts the servant at the mercy of the negligent master who furnishes a defective or different instrumentality without notice, which causes the injury. He is not required to exonerate himself bv showing reasonable care, which fact is peculiarly within his knowledge.

Ethridge, J., joins in this dissent.