Eureka Co. v. Bass , 81 Ala. 200 ( 1886 )

SOMERYILLE, J.

— The action is brought for the alleged negligent killing of the plaintiff’s intestate, one Moyle, an employee of the defendant, which occurred whiíe the deceased was engaged in superintending the blasting of iron-ore in the defendant’s mine, and was produced by the explosion of dynamite used in the process of blasting. The accident occurred in December of the year 1884. The preparation for blasting was conducted by drilling a long narrow hole in the iron-ore rock, five or six feet deep, and about one and a half or two inches in diameter. In this cavity was inserted a dynamite cartridge, to which were attached a percussion cap and a fuse.

The negligence specially alleged on defendant’s part was in failing to supply a good quality of fuse, after notice of an existing defect, which rendered the further use of this material dangerous to the employees, a fact well known to the deceased. The deceased remained in the service of the defendant five or six days after acquiring knowledge and giving notice of the defect, before he was fatally injured— his death being caused by his entrance into the mine about twenty minutes after the lighting of the fuse, under the belief that the fire communicated to it had been extinguished. Good'fuse was shown to ordinarily produce an explosion of the dynamite in from two to three minutes under similar circumstances. The main defense relied on is that of contributory negligence on the part of Moyle, the deceased.

The employer or master is bound to use due care and diligence, not only to furnish in the first instance, but to maintain, suitable and safe material, machinery and instrumentalities for the work or duty required of his employees, and he is ordinarily liable for any injury resulting from his neglect of this duty. — L. & N. R. R. Co. v. Allen, 78 Ala. 494; Buzzell v. Laconia M’fg Co., 48 Me. 113; Wood on Master and Servant, § 359. But the law imposes no obligation on the master to take any better care of the servant than the latter may be reasonably expected to take of himself, and every employee, upon entering service, presumptively contracts to assume all the usual and ordinary risks of the employment. — 1 Addison on Torts (Wood’s ed.), § 564, p. 603. “In legal presumption the compensation is adjusted accordingly.” — Farwell v. The Boston, &c., R. R. Co., 4 Metc. 49. There is no difficulty about these principles, which have been often decided, and with them the rulings of the court below in no wise conflict.

The two points most earnestly, pressed upon us are : (1) That the conduct of the deceased, in entering the mine within so short a time as twenty minutes from the moment of setting fire to the fuse, must, as matter of law, be adjudged by the court to be such negligence as to bar a recovery in this case, such conduct, as is argued, being reckless, and contributing proximately to the death of the deceased : (2) That, even if this is not so, the deceased was guilty of contributory negligence by continuing in the defendant’s service for an unreasonable length of time after notice given, and the failure of the defendant to repair the defect complained of as existing in the fuse.

The first contention does not strike us favorably. We can not say, considering only the undisputed testimony of the case, that it is so free from doubt as to admit of no other rational inference except that of negligence, or that different minds could not reasonably draw opposite conclusions from these facts touching the question of Moyle’s negligence in prematurely entering the mine by which he was brought to his death. The inference of negligence not being clear and certain, the question of its existence was not a question of law, but of fact, and as such was properly left to the determination of the jury.— City Council of Montgomery v. Wright, 72 Ala. 411; L. & N. R. R. Co. v. Allen, 78 Ala, 494. The demurrer to the several counts of the complaint was for this reason properly overruled ; and so, likewise, there was no error in refusing the general charge requested by the plaintiff.

The second proposition is one which is not entirely free from doubt, and upon which the authorities are not harmonious. In fact, it does not seem to have been clearly considered, or stated with any great degree of precision in the earlier decisions bearing on the subject of the servant’s contributory negligence, resulting in his injury from the continued use of defective appliances in the prosecution of his employment. The question is presented in this case by the refusal of the court to give the charge numbered 18 in the record. This charge substantially asserts the proposition, that the deceased, if cognizant of the defect in the fuse, could remain in the defendant company’s service only for a reasonable time, after notice of such defect was given to the company, to see if the promise to remedy it, as made by the company, would be performed, and if he remained longer, and continued using the defective fuse for an unreasonable length of time, and was killed by reason of such negligence, the plaintiff would be barred of a recovery in the action.

This charge was, in our opinion, a correct enunciation of the law as applicable to the case, and should have been given.

The employee or servant, must be charged with the exercise of ordinary prudence. He is not compellable, nor is it prudent for him, to remain in the service of his employer, if by doing so he subjects himself to any extraordinary hazard or peril not incident to the usual mode of conducting the business or employment. If he has notice of any defect in the appliances or instrumentalities used by him, from which injury may be reasonably apprehended, he should, generally speaking, quit the service for his own protection. Notice of the defect merely does not,.however, impute to him negligence. He must have' notice of the danger which then becomes a circumstance from which negligence may be inferred, if he continues silently and without objection in the prosecution of his employment. — Wood on Master & Servant, §§ 336, 352, 359.

It is everywhere admitted, that, if the danger encountered by the employee, through his continuance in the service, is so obvious and inevitable, as that no person of ordinary prudence — that no one but a reckless man — would venture upon it, under the circumstances of the particular case, then the continuance of the peril is at his own risk, and the employer is acquitted of responsibility, upon the ground of the employee’s contributory negligence. — Patterson v. Pittsburg, etc. Railroad Co. (76 Penn. St. 389), s. c. 18 Amer. Rep. 412 ; Snow v. Housatonic Railroad Co., 8 Allen (Mass.) 441.

Where, however, the employee or servant, electing not to abandon his employment, gives notice to the employer of such defect in the appliances or instrumentalities used by him, and the employer promises to remedy the defect, the relationship of the contracting parties at once undergoes a change. The assurances of the employer that the danger shallbe removed is an agreement by him that he will assume the risk incident to the danger for a reasonable time. It obviates the objection that the continuance of the servant in the service was an implied engagement by him to assume such risks, pursuant to the original presumption upon his entering the service. —Hough v. Railroad Co., 100 U. S, 213 ; Cooley on Torts, 559. We have said that the carrying of the risk by the employer will be implied to continue only for a reasonable time after the making of the promise by him to remove the danger producing it. The injury, in other words, must have occurred within the time at which the defects were promised to be removed. If the employee continues to expose himself to the danger by remaining in the service longer than this, he does so in face of the fact that the promise of the employer is violated, and that he has no reasonable expectation of its fulfillment. He can no longer, therefore, rely upon the promise, and must know that his continuance in service under such circumstances is equally as hazardous and hopeless of remedy as if no assurance or promise had ever been made. A promise already broken can afford no reasonable guaranty of the fulfillment of any expectation based on its disappointed assurances. Eor a servant or employee to persist in exposing himself to danger on the faith of such a promise may often be a want of that ordinary prudence which the law exacts of him at every stage of his employment, according to the degree and nature of the danger. His continuance in the service for an unreasonable length of time after such promise is a waiver of the defects agreed to be remedied by his employer. The risk, therefore, again becomes his own, and his conduct, as we have said, although not necessarily, or per se negligent, may or may not become negligent according to the circumstances of the particular case.— Greene v. Minn. & St. Louis R. R. Co. (31 Minn. 248), s. c. 47 Amer. Rep. 785 ; Missouri Furnace Co. v. Abend., (107 Ill. 44), s. c. 47 Ib. 425 ; Manufacturing Co. v. Morrissey, (40 Ohio St., 148), s. c. 48 Am. R. 669 ; Woodward Iron Co. v, Jones, MSS. Ala. — ; Shear. & Redf. on Neg., § 96 ; Beach on Contr. Neg., § 140 ; 2 Thomp. Neg. 1009, 1010; Patterson v. Pittsburg, etc. R. R. Co., 18 Amer. Rep. 412, supra; Laning v. The N. Y. Cent. R. R. Co. (49 N. Y. Rep. 521), s. c. 10 Amer. Rep. 417; Saunders on Neg. 127; Holmes v. Clarke, 6 Hur. & N. 349 ; 30 L. J. Ex. 135 ; Wood on Master & Servant, § 361.

The duty of the defendant to furnish and maintain suitable material and appliances fur the prosecution of its business is one of that class of duties which the law exacts of it as master or principal without regard to the rank or grade of the agent delegated to perform such duty. When the principal or employer, as here, is a corporation, this is a corporate duty, and its failure to perform it is corporate negligence. As to such acts the agent is the alter ego of the principal — the servant occupying the place of the master as much as if the latter were present in person, acting or failing to act for himself. Cases of this sort do not fall within the rule that the masteris not responsible for the negligence of one fellow servant resulting, in injury to a co-empioyee in the same common business. The same rule of respondeat superior applies where agents are authorized to employ fit servants for the master, or the general management of the master’s business is committed to one fully authorized to conduct it.— Tyson v. S. & N. R. R. Co., 61 Ala. 554; Flike v. The Boston, etc. R. R. Co., 13 Amer. Rep. 545 ; Corcoran v. Holbrook (59 N. Y. 517), s. c. 17 Amer. Rep. 369; Walker v. Bolling, 22 Ala. 294; Wood on Master & Servant, §§ 390, 436, 454; Cooley on Torts, 560, 562; Wilson v. Willimantic Linen Co. (50 Conn. 433), s. c. 47 Amer. Rep. 653.

Stephens being the general superintendent of the defendant’s business, charged with the duty of supplying fuse for blasting, and Falls having authority also to make such purchases, when needed, notice of the defect given to either of these agents was notice to the company itself. The court so held in all its rulings. „

We have examined the other rulings of the court as shown in the general charge, and in the giving and refusing of the charges requested, and find no error in them.

The rulings on the evidence seem to be equally free from error. We note only such as appear to be least free from doubt.

The question propounded to the witnesses, Gray and Johnson, as to whether the holes were “ properly charged ” before ignition of the fuse, was free from objection. It called rather for the statement of a collective fact than for a mere opinion. The witness had already stated the customary mode of- charging such holes, and the facts and conditions which constituted the preparation prior to the explosion of the dynamite, and the answer called for was a mere affirmation or denial of these facts or conditions as existing in this particular case.

The several questions, however, were objectionable and ]3roperly excluded, which were propounded by the defendant to various witnesses, asking “within what time it would be reasonably safe ” to return to a hole charged with dynamite cartridges, after ignition and failure to explode ? what was “ the rule on this subject among experienced miners in like cases ? ” and others of an analogous character. The effect of these questions, if allowed, would have been to take from the jury the question of negligence, and try it by the opinions of witnesses and the conduct of others, whose prudence was entirely unknown.

The other exceptions based on the admission and exclusion of evidence are not well taken.

Reversed and remanded.