70 W. Va. 122 | W. Va. | 1911
Raleigh Lumber Company had about completed a new mill. It was engaged in putting in its place a pipe of considerable length running from the boiler to some part of the saw mill for the conveyance of steam, and was adjusting and testing the pipe. Steam was turned on into this pipe, and it disclosed a leak between two sections of the pipe. Steam was turned off, and George W. Whorley, a workman who had been employed in the construction of the mill, was engaged at the point of leakage in tightening up a flange coupling which was leaking, when an ell bursted at his feet, and a large quantity of steam, which had been turned on again, escaped and badly burned Whorley. In an action brought by him against the lumber company he
Much argument is made to sustain a demurrer to the declaration overruled by the court. We think the declaration is good. It involves nothing necessary to be here stated.
Instruction Ho. I for the plaintiff is excepted to. It reads as follows: “The court instructs the jury that the duties of the master to provide a reasonably safe and suitable machinery and appliances for the business and to furnish a safe place in which his servant is to work are duties which the master can either perform personally or delegate their performance to some one else; but if both the master and the person to whom such duties are delegated fail in the performance of any of said duties, and injury results to the servant by reason of said failure, the master is liable for such injury.” This mill was yet incomplete.' It was not yet in actual operation. The piping that was being put down was indispensable for the operation of the mill. Whorley was helping to put that pipe in place. The objection to this instruction is that it sets up a standard of duty of the employer applicable to a complete operating-mill. It demands of the employer the same degree of duty as to machinery exacted of an owner of a running mill. The principle governing the trial seems to be wrong. The trial was upon an erroneous theory, that of a running mill. You cannot exact of a mill builder that high degree of care as to good machinery or appliances, when they are being put up and tested, as if completed and running. You cannot demand the same . degree of duty as to a new and untried pipe, when being.put down and tested, as you could in the case of a steam pipe in a finished an operating mill. Labatt on Master and Servant, § 29 says: “It is well settled that, where the'instrumentalit.v which caused the injury was still incomplete at the time of the accident, and the injured servant was engaged in the work of bringing it to completion, the question whether the master was in -the exercise of due care is determined with reference to a lower standard than that which is applied in the case of instrumentalities which have been put in a finished condition and are in regular use in the normal course of the business. A similar qualification of the master’s liability is admitted
There is another objection to that instruction. It says that the master must provide “a reasonably safe and suitable machinery and appliances for the business.” This makes the master guarantee the safety of the pipe. The law is that it is the duty of the master to use reasonable care and diligence to furnish suitable .machinery and appliances. In Omer v. Zadek, 120 Ill. App. 444, an instruction like this one was given. The court said: “Under the instruction the jury may have found for the plaintiff, if they believed from the evidence that the machinery was not reasonably safe, even though the appellant used the utmost diligence to procure a safe machine, and even though there was no defect discoverable by the exercise of ordinary diligence. This is not the law. The master’s obligation is not to supply the servants with absolutely safe machinery or any particular kind of machinery;, but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary and unreasonable danger. The law imposes upon the company the obligation to use reasonable care and diligence in providing suitable and safe machinery.” In Belleville Pump Works v. Bender, 69 Ill. App., the court says: “The second instruction given for the plaintiff was erroneous. It told the jury that it was the duty of the master to furnish his servants with tools and appliances that were reasonably safe. The law is that he is only required to use reasonable and ordinary care and diligence in providing suitable and safe machinery. Camp Point Co. v. Ballou, 71 Ill. 421.” In Wonder v. B. & O. 32 Md. 411, 3 Am. R. 143, it is stated that: “All that can be required of the master is that he should use due and
Another objection to instruction. Ho. 1 is that it requires the defendant to furnish a safe place for work. The plaintiff had been, and at the time of the injury was, working in the construction of this new mill. Could he expect a safe place to work in when the mill was in process of construction? But that is not all as to this feature of the instruction. There was no evidence as to the unsafety of the place, or of that being the cause of the misfortune. If the evidence tends to show anything as the cause of the accident it is the want of drain holes in the ell of the pipe. That only is alleged by the plaintiff as such cause. This instruction makes the safety of the place of work an element to be passed on by the jury. It tended to mislead the jury. This instruction told the jury that the master must furnish a safe place for work when he was only bound to use care to do so, as in the case of suitable machinery. And this instruction did not suit the case of an incomplete mill. It strikes me that this instruction is also wanting in failing to-put to the jury the question whether the master knew or should have known of the alleged defects in the pipes. Hoffman v. Dickinson, 31 W. Va. 142, point 11. These terrible accidents will happen in such operations as that in this case. Negligence must be established. The master does not guarantee the safety of the servants. His duty is reasonable care, having relation to the parties, the business on hand and in view of the situation of the parties under the circumstances. Oliver v. Ohio River Co., 42 W. Va. 703; Fulton v. Crosby Co., 57 W. Va. 91. Remember that this was not an operating mill, but still in process of construction, especially so as to this piping. 'Whorley was engaged in constructive work.
We do-not think instruction 4 is bad.
On consideration of the evidence of the plaintiff alone we have come to the conclusion that it does not sustain the action, because it does not clearly show and identify the cause of the injury to the plaintiff. This is an action based on negligence, which the plaintiff must prove. He must show the cause of the injury and also the defendant’s negligence responsible for it. The plaintiff’s evidence is aimed to show that there were no traps or drain holes in the steam pipes, and that from condensation of steam there was a water deposit in the pipe, and that
Again, if the pipe burst from want of drain holes, who is responsible ? ■'Who should have put them in ? The mill wright. His negligence, if any, is negligence of a fellow servant. But the case does not establish any negligence.
We think that the plaintiff’s instruction 7 directing the jury to find for the defendant should have been given. Under these principles we are led to reverse the judgment, set aside the verdict, grant a new trial and remand the cause.
Reversed and Remanded.