Bannon v. Lutz ( 1893 )

Opinion by

Mr. Justice McCollum,

It is alleged by Bridget M. Bannon, appellee, tiiat on the 22d of February, 1889, her husband, John Bannon, lost his life in the service and through the negligence of Hiram E. Lutz, appellant, who then owned and operated a refinery known as the Delaware Oil Works. It appears that Bannon entered the service of Lutz as assistant stillman, about two months' before his death, and that in the performance of his duties as such he was required, inter alia, to remove the manheads from the stills from three to four hours after the fires were drawn. About half past twelve' o’clock in the morning of the day of his death his fellow workmen were startled by an explosion of gas in one of the stills in his charge, and on going to the place where the explosion occurred, they found him enveloped in ñames on the floor of the refinery, directly in front of, and about twenty-five feet from the open manhole in still No. 2. They extinguished the flames and conveyed him to his home, where he died in the evening of the same day. It is a natural and just conclusion from all the evidence that his death was caused by the explosion. The trial in the court below resulted in a verdict and judgment against Lutz, from which he appealed. The substantial questions raised by the appeal are whether the evidence is sufficient to warrant a finding that there was negligence on the part of the employer, which in the absence of contributory negligence on the part of the. employee was the proximate cause of the latter’s death, and if so, whether the evidence of contributory negligence is such as would have justified the learned judge of the trial court in directing a verdict for the former. The alleged negligence of the employer was his failure to provide such appliances for opening the stills and preventing explosions as it is claimed were in common use and necessary to render the work of opening them reasonably safe according to the usages, habits and ordinary risks of the business. The appellee submitted evidence to show that it was customary to use steam in the stills, in the process of distillation, and for the protection of the men in removing the manheads, and when it was used for the latter purpose only, it was introduced after the fires were drawn. It also appeared in the evidence submitted by her that there was in common and ordinary use a contrivance by means of which the stillman was enabled to remove the man-head without lifting it from its place or standing immediately in front of it, and that this in most refineries was a crane or hinge on which the manhead would swing away from the manhole when the bolts by which it was fastened to the still were taken out. It was further shown by the evidence on the part of the appellee, that at the time of the explosion complained of there was no such contrivance for the removal of the manheads on the stills in the Delaware Oil Works, and that while Bannon was employed there steam was not used in the process of distillation, or after the fires were drawn. The manheads weighed from eighty to one hundred pounds each, and Rufus F. Purdy, who was in the service of Lutz about seven months as assistant stillman, testified that he was not able to take them off without standing in front of them. He also testified that he complained to Miller, the manager of the works, of the absence of the appliances in ordinary use in oil refineries for the protection of the stillman in taking off the manheads, but that nothing was done while he was there to render the work of removing them reasonably safe. A like complaint, coupled with a request that steam be introduced in the stills was made without effect by William Ash, a stillman in the service of Lutz for six years. But we need not refer in detail to all the evidence on this point. We think it is sufficient to warrant the conclusion reached by the jury that the employer was negligent in failing to provide the ordinary and well known appliances in common use in oil refineries for the protection of the workmen in the performance of their duties.

It seems very clear to us that the evidence of the alleged contributory negligence of Bannon furnished no ground for a peremptory instruction to the jury to find for the defendant. The theory that the explosion was due to his negligence rests on the undisputed showing that after 'its occurrence the front manhead of still No. 2 was on the platform and leaning against the still at one side of the manhole, and that there was a lantern with the glass globe slightly cracked and a light still burning in it at the time, and about twenty-five feet beyond the place where Bannon was found enveloped in flames. ' From these facts it is claimed there is an irresistible inference that after he had removed the manhead he unnecessarily and negligently passed in front of the open manhole with the lantern in his hands and both were thrown by the explosion to the place where they were afterwards found. But it was not for the learned judge of the court below to draw this inference and base a binding instruction -upon it. He went far enough in this direction when in answer to the defendant’s second point he told the jury that it was negligence per se to carry a lantern with a light in it in front of the open manhole, and if Bannon was injured while thus exposing himself the plaintiff could not recover.

We cannot say in view of the evidence in the case that any error was committed in the general charge or in the answers to the points regarding the risks assumed by the employee. The duty is on the employer to furnish his employees reasonably safe appliances with which to do the work assigned to them. It is also his duty to know what appliances are suitable and in common and ordinary use for the purpose. The emplojree has a right to assume that his employer will intelligently and faithfully discharge these duties. If the work in which he engages is new to him he should be instructed in it, and if he is not acquainted with the latent dangers incident to it they should be explained to him, that he may, so far as is consistent with a proper performance of it, avoid them. In such case he is not presumed to know whether his employer has furnished appliances which are reasonably safe and in ordinary *ise, and he is not chargeable with an assumption of the risks involved in the failure to provide them.

It is claimed by the appellant that the instructions in relation to damages were inadequate. It is true that they were brief, but it is equally true that they were not misleading or suggestive of any elements of damage improper for the consideration of the jury. The verdict was reasonable in amount, and we think the appellant has no just cause to complain of it.

The specifications of error are overruled, and the judgment is affirmed.