Watson ex rel. Watson v. Warsaw Construction Co.
Watson ex rel. Watson v. Warsaw Construction Co.
Opinion of the Court
At 5 :30 in the afternoon of 2 February, 1928, tbe plaintiff received tbe dynamite caps from tbe defendant’s foreman and was injured by an explosion in bis pocket on tbe day following at 1:30. Tbe material allegations of negligence, -as set forth in tbe complaint, are tbe defendant’s failure to warn tbe plaintiff of danger in handling tbe caps and its failure to provide a safe box or container for their transportation. Let us consider each of these allegations in its relation to tbe plaintiff’s evidence.
As to tbe first, it is conceded to be tbe duty of an employer to warn his employees concerning dangers which are known to him, or which
For the present purpose, we may admit the proposition that where explosives are given to a messenger for transportation in a package apparently harmless, and he has no information or notice of their general character, and carries them with the care adapted to their apparent nature, the person delivering the explosives will ordinarily be held liable for injuries resulting from an explosion during the period of transportation. But without saying that the jury may not reasonably have inferred from the evidence that the defendant had been negligent in failing to warn the plaintiff of probable harm, we are confronted with the fact that no injury resulted to the plaintiff during the course of his employment — i. during the time he was engaged in obedience to the foreman’s orders in carrying the caps from the barn to the shack. His regular service was that of a teamster. The reason of requiring warning in appropriate cases is to impress upon the employee the necessity of keeping the danger in mind while performing the specific duties required of him and to give him information by which to determine whether he will continue in the service. 39 C. J., 489. As a rule an employer will not be liable for failure to instruct an inexperienced or ignorant employee unless the injury sustained during the employment resulted from the employee’s unskillfulness or want of knowledge.
With respect to the caps and the fuse the plaintiff’s employment ceased, as we have indicated, when he put them in the house. He had nothing more to do with them. His service was of short duration: not more than thirty minutes intervened between the time he received the caps -and the time he put them on the shelf. No accident or injury occurred on this short journey or while the particular employment continued. If the object of warning is to save the employee from injury while engaged in the service for which he is employed, the employer’s failure to warn him will not, as a general principle, be held for actionable negligence where no injury is sustained during the continuance of the service, and will not be regarded as having contributed to an injury which did not occur during the period to which the instruction was intended to apply. Mitchell v. R. R., 176 N. C., 645; Wilson v. Clark,
The second proposition advanced by the plaintiff raises the question whether the defendant failed in another respect to exercise due care for his safety. >
The defendant had a right to assume that the plaintiff would obey the foreman’s instructions and leave in the house all the caps the foreman had given him. To meet this situation the plaintiff avers that the defendant negligently failed to provide a suitable container, and that on account of a defective lid five or six caps came out of the box while it was in the pocket of his overalls, and without his knowledge remained there until the explosion occurred in the afternoon of the day following. He contends that his right to recover damages is not dependent upon the existence at the time of the injury of any contractual relation between him and the defendant. His allegation is this: “The plaintiff noticed when he took the box from his pocket at the shack that one corner of the tin or copper lid was slipped up slightly, but did not know that any of the said caps had come out of the box into his pocket.” Elsewhere in the complaint he refers to the box as “containing one hundred caps and being made of tin with a loose and springy lid thereon.” Upon his allegations he rests the contention that the defendant by its foreman, while the temporary relation of master and servant existed, negligently put in operation a dangerous agency which, continuing after the relation had ceased, caused .an explosion which resulted in his injury. These allegations in their relation to the evidence must be considered in the light of familiar principles underlying the law of negligence.
The relation between the conception of negligence and liability in the field of trespass involves three propositions: (1) “For intentional injury done by the direct application of force a man is absolutely liable. (2) For injury done by the direct application of force under such circumstances that the law can ascribe to the actor an intention to do the harm, he is also absolutely liable. (3) But where the actual intention is absent and the circumstances are such that the law will not raise a presumption of intention against the actor, there liability cannot exist unless negligence, in the sense of some degree of blameworthy remissness or lack of care on the part of the actor is shown. In other words, negligence is essential to liability for unintentional injury, and it is a good defense in an action of trespass for unintended harm for the defendant to show that he was in no way negligent or to blame in doing the act which proximately caused the damage.” 1 Street’s Foundations of Legal Liability, 74.
The essential elements of actionable.negligence may be stated as (a) a failure to exercise commensurate care, (b) involving a breach of duty,
There is no substantial basis for the plaintiff’s contention that the defendant did not exercise the required care in providing a suitable container for the caps. It is generally held that “reasonable foresight of barm supplies the criterion for determining the preliminary question whether negligence exists in a particular case.” Tbe defendant contends that under the circumstances related by the plaintiff it could not reasonably have anticipated or foreseen the infliction of any injury. According to this theory foresight of barm is a condition of liability, the test of the defendant’s negligence being whether in the exercise of due care
But the foresight of harm as an element of actionable negligence must not be confused with foresight as an element or test of proximate cause.
The container was a small tin or copper box, the lid of which, according to plaintiff’s testimony, would come off easily, because the corners were loose and not fastened together. He said that to the best of his knowledge the lid was sprung and that he pushed it back when he took the box from his pocket: “I reached my hand in my pocket and then noticed that the lid was slipped up or had come off, but it went back on and I set it up ; seeing .and knowing that, I didn’t put my hand in my pocket to see if any of the caps had come out. I never thought about it.” When he retired at night he laid his pants by the side of the bed,' and the next day he wore them.
It is important to note the plaintiff did not say that any of the caps came out of the box and remained in his pocket; this is a matter of conjecture. He did not say that any of the caps exploded in his pocket. His words were, “I jumped down to get it (his whip), and when I hit the ground it fired. I don’t know what it was that fired.”
The plaintiff’s evidence considered as a whole does not disclose conditions from which we can conclude as a matter of law that the defendant should reasonably have foreseen that dynamite caps would' escape from the box and be carried in the plaintiff’s pocket for nearly twenty-four hours .and then, when subjected to a jar, explode and inflict the alleged injury, or, indeed, that any other injury would result. In the box there was manifestly no defect that was not as apparent to the plaintiff as to the defendant — -in any event nothing more than an ill-fitting lid; and if the plaintiff, after seeing the lid was loose, did not suspect that caps might have been left in his pocket, it is not reasonable to say that the defendant should be held to liability for failing in the exercise of due care to foresee such an unusual and unaccustomed contingency.
The motion for nonsuit should have been granted. Judgment
Reversed.
Reference
- Full Case Name
- LEE WATSON, by His Next Friend, JOSIE WATSON v. WARSAW CONSTRUCTION COMPANY
- Cited By
- 4 cases
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- Published