56 So. 330 | Miss. | 1911
The theory that the explosion was caused by dynamite is wholly untenable. It was manifestly caused by gas. The facts in the ease are substantially as follows, as fairly set out in appellant’s brief:
“On Friday, March 13, 1908, the'gas company was notified to turn on the gas, and about 2:15 of that day Frank'O’Brien, the employee and representative of the gas company, turned on the gas, the gas pipe having a capacity of sixty cubic feet per hour. (See page 42, line 7, of the record.) Almost immediately after this was done the odor of escaping gas was detected in the building and in the laboratory. (See pages 49 and 51.) Nothing was done about this, however, and Saturday morning, when the girls came to work about 8 o’clock a. m., the presence of gas was so noticeable that the windows in the laboratory were raised. (See page 49.) The plumber was notified, and sent his assistant, Mr. Burns; but he could not locate the leak, and about 9 o’clock a. m. Mr. Daub asked O’Brien, the gas company’s representative, to find the leak, and stated that Burns could not find it. (See page 44.) O’Brien then cut off the gas, after satisfying himself that there was no leak between the meter and the gas mains in the street, the part he had installed, and about 10 o’clock a. m. notified Burns that there was a leak in the gas connection inside the building, and that he had rejected the pipework. (See page 45.) About 10:30 a. m., same day, Burns appeared at the office of appellee, and asked Mr. Hodge, the bookkeeper, for the keys to the room where the meter was kept; this room being known as the “corn room.”
“The explosion occurred about 2:45 p. m. of the same day, Saturday, March 14, 1908, and a few minutes before the explosion Burns, the plumber’s assistant, was seen in the laboratory by Miss Simms, an employee, with a
The court on this testimony gave a peremptory charge for the defendant. The defense chiefly relied on is contributory negligence and the assumption of risk on the part of the deceased employee whose mother brings this suit. The suit is bottomed on the non-delegable duty of the master to furnish the servant a safe place to work. This court has said on this subject, in the well-considered case of Alabama & Vicksburg Railway Company v. Groome, 52 South. 703, through Justice Smith: “The duties of the master relative to furnishing the servant a safe place in which to work cannot qrdinarilv be delegated to fellow-servants, and the risk relative thereto is not such as is ordinarily assumed by the servant.” See exhaustive review of authorities contained in notes to Fitzgerald v. Southern Railway Company, 6 L. R. A. (N. S.) 337.
This is a correct announcement of the law on this subject, and as a matter of law, therefore, on the facts of this case, no. assumption of risk nor contributory negligence can be charged to the deceased employee. It was the duty of the master to use every reasonable effort to see that the place in which these employees worked was safe, and they had a right to assume that this duty would be strictly complied with. Besides which, even if the doctrine of contributory negligence and the assumption of risk could be invoked, it is equally clear on the testimony which we have set out that whether the deceased employee was guilty of contributory negligence or as
Keeping in mind the whole of the testimony which we have stated above, it is plain that this gas was escaping into the laboratory from Friday evening until the time of the explosion, 2 p. m. Saturday; that the chemist had his attention called to it several times, and made some perfunctory effort to have the situation remedied; that O’Brien, the employee of the gas company, and Bums, the assistant plumber, were there several times engaged in an effort to locate the leak and correct it; and, what is most significant of all, that Chambliss, the president of the defendant company, was asked by White if he did not smell the gas, and replied that it had been attended to; that his office had been telephoned about the escaping gas, and need for having it corrected, and, though he was not at the moment in the office, he came in just a few minutes afterwards; that he therefore knew himself, some time before the explosion, of the escaping of the gas, and, of course, the danger therefrom, and yet contented himself with doing nothing further about it than giving it this purely perfunctory attention. It is impossible to say, on any fair view of this testimony, taken as a whole, that the master complied with the strictness of the rules of law requiring him to use every reasonable precaution to see that the place of work was safe, and that there was not, therefore, such negligence shown as would take the case from the jury, whose peculiar duty it is to pass upon the facts as to whether contributory negligence existed, even if it could be invoked in a case based on the master’s failure to supply a reasonably safe place in which to work. The peremptory instruction should not have been given.
Reversed and remanded.
Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded for a new trial.