56 S.W. 323 | Tex. | 1900
Plaintiff in error, at the time of the occurrence in question, was engaged in manufacturing from coal, gas and its by-products, including coal tar. Defendant in error had been employed as helper to render such service about the works as should be assigned to him. He was ordered by the vice-principal of plaintiff in error to paint a boiler, which was hot, with coal tar manufactured in the business, and was instructed to heat the tar so that it might be the better applied. He heated the tar and was engaged in spreading it with a paint brush upon a part of the boiler higher than his head when some of the tar popped into his eye, burning it and eventually causing the loss of it. Defendant in error had never before done such work and was ignorant of any danger of such an occurrence. Coal tar is proper material with which to paint boilers and there was nothing to show any unfitness in that which was used on this occasion, the sole complaint being that the vice-principal failed to properly instruct the servant in the use of it, and to so advise him concerning the risk to be incurred as to enable him to protect himself.
The vice-principal himself was ignorant of any such danger and there was no evidence of such an accident ever having happened before, although it appeared that coal tar was commonly used for such purposes. There was evidence which tended to show that the popping of the tar may have resulted from inequality between its temperature and that of the surface to which it was applied, causing some of its constituents to suddenly boil and generate vapors, which, in escaping, threw out the tar.
Testimony of experts was introduced tending to show that coal tar, when spread upon surfaces hot enough to cause some of its constituents to boil, would spatter, and this is probably what happened when defendant in error was hurt, if his injury occurred as he states. There is no evidence to show the existence of danger in the painting of the boiler greater than that which might result from such spattering or "bumping" of the tar; and none tending to show previous injury to any one from such a cause. The work of painting is often done by inexperienced men, and those having practical experience with it did not regard it as dangerous.
The question which we have to decide is, whether or not there are any facts upon which it can be held that the master neglected a duty and was guilty of negligence when it failed to notify the servant of the probability of the popping of the tar and to instruct him how to prevent its occurrence or protect himself against injury from it. It seems quite plain that the risk to the servant was not of such a character as to require any such precaution on the part of the master. Such risk was not greater than almost every servant, whether experienced or inexperienced, incurs in any service, nor greater, indeed, than almost every one often incurs in pursuing an avocation of any character.
The case does not come within the principle, so often declared, that the master engaged in a dangerous business must not expose an inexperienced *507 servant to the hazards of it without warning of their existence and instruction as to the means of avoiding them. In all of the cases in which this principle has been enforced, the work which the servant was put to doing was attended with great and unusual danger, to guard against which special knowledge on his part was required. The master, in engaging the servant in such work, was exposing him to constant risk of serious injury, of which the master was or ought to have been aware and the servant ignorant, and hence the omission of the master to take reasonable precautions to guard the servant against such dangers was a failure to exercise that ordinary care and foresight for the protection of the servant which the law exacts. This failure to exercise ordinary care was the reason for the master's liability. In every cited case and in every authority which we have found, this element of serious and unusual danger to a servant uninformed as to its existence was present. No authority has been found and we think no sound one can exist in which the duty to warn and instruct the servant arises where no unusual or extraordinary danger is to be encountered. That there was no such danger in spreading coal tar upon a boiler appears obvious. Such risk as there was is of the same nature as that which every cook using stoves and cooking utensils, in connection with water or grease, incurs. It was not greater than the farm hand incurs in handling the simple tools with which he performs his labor. That a serious injury was inflicted does not prove that the work was more than ordinarily dangerous, for there is scarcely a business or situation in which one may not, without negligence in any quarter, receive a serious injury to so delicate an organ as the eye. Such injuries do not, however, generally happen from ordinary risks, and hence where only ordinary risks are to be incurred, they are not to be anticipated and provided against. Such was the only risk which defendant in error incurred, and it would be carrying to a dangerous extreme the humane and salutary principle of the law to which we have referred to apply it to a situation like this, since it would well nigh make the master an insurer of the safety of the servant. The language of Chief Justice Campbell in his dissenting opinion in Smith v. Peninsular Works, 60 Michigan, 501, is especially applicable, as well as true: "No rule could be a safe one which would render it unsafe for persons to employ others to aid them. The cases that generally come up arise where the employment is upon a considerable scale and it is supposed that the employer can afford to lose better than the person employed; but the principle, if correct, will apply as forcibly to domestic service and small industries as to any other."
The charge of the court which is attacked in the fifth assignment of error perhaps correctly stated the duty of the master to warn inexperienced servants of the dangers of the business, had the rule on that subject been applicable to the facts; but its error consisted in the assumption that there was a state of facts to which it might apply. The assignment attacking the charge on the ground that there was no evidence *508 to warrant it, sufficiently raises the question which we have discussed.
There being no evidence to sustain the recovery, the judgments of the District Court and Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded.