Wilbourn v. Charleston Cooperage Co., 90 So. 9

Wilbourn v. Charleston Cooperage Co.

90 So. 9 | Miss. | 1921

Anderson, J.,

delivered the opinion of the court.

(After stating the faets as above). It is contended on behalf of the appellant that appellee owed the appellant the duty to furnish him a reasonably safe place in which to deliver icé to appellee; that on account of the floor around the water barrel being wet and slippery, it was an unsafe place for appellant to perform his duties; that the circular saw which cut off appellant’s finger was a dangerous and unsafe piece of machinery; and that therefore it was the duty of the appellee to appellant to properly guard the same, and that if it had been so guarded the injury complained of would not have occurred.

The authorities are practically unanimous on the proposition that under the facts shown by the evidence in this case, the appellant was not a mere licensee but an invitee. He was where he had a right to be in the performance of his duties both to his employer and to the appellee. The authorities are also practically agreed upon the proposition that the owner of a building containing dangerous machinery who directly or by implication invites or induces another to go therein owes to such person the duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils in and about such machinery; and that the owner of such a building is liable for any injury received by such an invitee occasioned by the unsafe condition of such machinery therein, provided such unsafe condition is known to the owner and not to the invitee. That if there are hidden dangers upon such premises, the owner must use reasonable care to give warning thereof to the invitee. But such warning is only required *300when the perilous condition is known to the owner of the building and not known to the invitee who is injured; and where the danger is obvious and known to the invitee who is injured no recovery is permitted. Mr. Justice Harlan, in delivering the opinion of the supreme court in Bennett v. Louisville, etc., R. R. Co., 102 U. S. 577, 26 L. Ed. 235, stated that the owner is liable to invited persons for injuries “occasioned by the unsafe condition of the land and its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who were likely to act upon such invitation.” There is, therefore, no liability for injuries to invitees from dangers that are obvious. The principles involved in this case are clearly stated in 20 R. C. L. pp. 55 to 57, inclusive, sections 51 and 52, to support which the cases are collected in the notes.

Applying these principles to the facts of this case, it is clear that the appellee is not liable for the injury received by the appellant. Whatever danger there was on account (. .of the floor around the water barrel being wet and slippery was not only known to the appellant, but was obvious to every one, and furthermore it was a condition partly brought about by the appellant himself in washing off the ice as delivered by him to the appellee. And the same is true of the saw by means of which the appellant lost his finger. It was running all the time the mill was in operation. According to appellant’s testimony, it was located four feet from the water barrel, which was a mere estimate on his part. It was six feet by actual measurement according to the other evidence. Without conflict the evidence showed there was ample room between the barrel and saw to enable appellant to wash off and put the ice in the barrel. The running saw was plainly and obviously dangerous to those who might come in contact with it. The appellee was not required by law to provide a place for appellant to perform his duties as an invitee that would insure him against mere accidents.

*301Under tbe law, in order to bold tbe appellee liable for tbe injury to appellant, it is necessary that tbe appellee must have reasonably foreseen that tbe condition of. tbe floor around the barrel and tbe proximity of tbe saw might result in some injury (not necessarily the identical injury received) to the appellant or some other person occupying a similar position. Stating tbe principle in a different way, tbe condition, of tbe floor and proximity of tbe saw to the barrel must have been the proximate cause of tbe appellant’s injury. And it cannot be said that they were in fact the proximate cause of tbe injury, unless tbe evidence tends to show that by reason thereof appellee should have anticipated some injury to appellant or some other person occupying a similar relation. As we view it, tbe evidence neither shows nor tends to show that. Counsel for appellant cites, with a good deal of assurance, to support bis contention Kress v. Markline, 117 Miss. 37, 77 So. 858, Ann. Cas. 1918E, 310. That is a very different case on its facts from this. There the open elevator shaft, under the evidence in that case, was a menace to the customers of the mercantile establishment of defendant while making their purchases, and it was not shown that the deceased who fell . down it and lost his life was either Avarned of it or knew of it. There was no error in directing a verdict for. ap-pellee.

Affirmed.