Swift & Co. v. Hatton
Swift & Co. v. Hatton
Opinion of the Court
after making the foregoing statement, delivered the following opinion of the court:
The pivotal question in the case before us is this:
1. Had the dangerous condition of the instrumentality —the pork barrel—at the time of the injury to the plaintiff — (all set forth in the above statement of the facts)—existed for so long a time and under such circumstances that the defendant had constructive knowledge thereof a sufficient length of time prior to the accident for it to have removed such condition by the exercise of reasonable care?
The case involves an instrumentality in itself safe for the purpose for which it was provided by the master to be used and for which.it was used by the injured servant in the due course of the discharge ox the duties of his employment; but which was converted into an unsafe and dangerous instrumentality by the position in which it was placed for such use.
(According to the evidence in the case it was a concessum that the defendant allowed the dangerous condition to remain without taking any steps for the protection of Its servants therefrom.)
2. We come now to the consideration of the action of the trial court in refusing to give instructions Nos. 5 and 6 asked for by the defendant.
These instructions could properly be given in a case in which the non-assignable duty of the master with respect to providing reasonably safe and suitable instrumentalities or a reasonably safe place for the work of its servants is suspended, because of the danger being open and obvious, or because of the existence of other limitations upon that duty, such as are above mentioned, where the peril is transitory and due to causes such as are above referred to. In such cases the master owes no duty to the injured servant with respect to dangers which are open and obvious, or which are discoverable only by inspection. He, in such cases, is not chargeable with any duty of immediate inspec
The following cases are cited for defendant and urged upon our consideration as sustaining the position that said instructions Nos. 5 and 6 should have been given by the trial court, namely: Honaker Lumber Co., Inc., v. Call, 119 Va. 374, 89 S. E. 506; Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S. E. 614; Va. Iron Coal & Coke Co. v. Asbury’s Adm’r, 117 Va. 683, 86 S. E. 148; Lynchburg Foundry Co. v. Dalton, 121 Va. 480, 93 S. E. 587; Darracott v. C. & O. Ry. Co., 83 Va. 288, 294, 2 S. E. 511, 5 Am. St. Rep. 266. But these were all eases, either of open or obvious danger, or of transitory perils attendant upon the executive details of the work to be done by the servants, with an absence of any element of permanency of the dangerous condition sufficient to impute constructive knowledge thereof to the master.
The Virginia case cited is that of Wilson v. So. Ry. Co., 108 Va. 822, 62 S. E. 972, where the servant was injured, while assisting in unloading 85-pound rails from a railroad car, in consequence of the turning of one of the rails under his foot from some unexplained cause, while the work was being done in the usual manner. Here the danger was a transitory peril and arose from the mere executive details of the work being done by the co-servants and it was, besides, as was held, the result of an accident for which no one could be held responsible.
In the case of Mathis v. Kansas City, etc., Co., 185 Mo. 484, S. W. 66, cited, the plaintiff was himself charged with the duty of placing the plank in position to stand upon in doing his work. That was a part of the work the plaintiff undertook to do.
The same principle is involved in the ladder case of Borden v. Daisy Roller Mill Co., 98 Wis. 407, 74 N. W. 91, 67 Am. St. Rep. 816, cited. And as to the alleged defect in the ladder, it consisted in the lack of spikes to prevent its slipping on the floor, which was held to have been an open and obvious danger.
In Langley v. Wheelock, 181 Mass. 474, 63 N. E. 944, the plaintiff was injured by the falling of one of a number of metal bars of different lengths which stood on end on the floor and rested against the wall of the store, being held in place by pins in planks about four feet up from the floor on the side of the wall. There was nothing to obstruct the view of these pins four feet up from the floor, or of the position of the bars as the plaintiff occasionally worked in a few feet of them and passed to and fro about his work. The court held that the danger was open and obvious, and besides that there was no evidence in the case to show
In Bradley v. Forbes Tea & Coffee Co., 213 Mo. 320, 111 S. W. 919, cited, the plaintiff knew the tendency of the piles of sacks of coffee to settle and bulge out and hence was held to have assumed the risk of the sacks falling.
In Hofnauer v. White Co., 186 Mass. 47, 70 N. E. 1038. the plaintiff, a salesman in defendant’s store, was injured by the falling of a medicine chest from a shelf above her. There was no evidence in the case disclosing from what cause the chest fell, except- that the shelf was not level. But other chests upon the shelf were not affected by the inclination of it. The court, it is true, said that “for aught that appears its fall may have been attributable to carelessness of an employee in not replacing it securely after it had been taken down and shown to customers.” However, there was nothing to obstruct the view¡ of plaintiff of such a position of the chest on the shelf, and she was held to have assumed the risk of the danger, on the ground that it was open and obvious.
In the trap-door cases of Clough v. Hoffman, 132 Pa. 626, 19 Atl. 299, 19 Am. St. Rep. 620, and The Theresina (D. C.) 31 Fed. 90, cited, the cause of the displacement of the cover of the openings in question did not appear and the displacement was but temporary, in each case, not continuing for a sufficient length of time to affect the defendant with constructive knowledge of the dangerous condition. In the case of Kupp v. Rummell, 199 Pa. 90, 48 Atl. 679, cited, the trap-door was opened immediately before the accident by a co-servant after notice to and as
None of such authorities, therefore, have any controlling bearing on the case at bar.
But one other position of the defendant remains for om consideration, and that is this—
We do not think that the rule invoked is applicable to the instant case.
It is true that Whitten testifies that he knew where the glycerine was stored and could have given the plaintiff that information, if called upon to do so. But he was not out on the floor of the room but back in the cooling room at the time and did not see the plaintiff, nor did the plaintiff see him, when the plaintiff came upon the floor in search for the glycerine. Besides, there is no evidence in the case that it was the duty of the plaintiff to make such inquiry of the foreman, or that such was the custom at any time. On the contrary the plaintiff testified expressly that in searching for the glycerine himself, as he did, he acted in accordance with the custom which had been followed in that regard during the whole period that he had been in the employment of the. defendant prior to the accident (three years and nine months).
For the foregoing reasons we find no error in the action of the trial court or in the judgment under review, and the cause will be affirmed.
Affirmed.
Reference
- Full Case Name
- Swift and Company, Inc. v. Hatton
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Master and Servant&emdash;Safe Place to Work&emdash;Non-Assignable Duty.&emdash;The general rule is well settled that .the master is. under an absolute obligation&emdash;is charged with a duty&emdash;to use due care in providing and maintaining a. reasonably safe environment for his servants while engaged in their work. 2. Master and Servant&emdash;Safe Place to Work&emdash;Duty of Supervision by Master.&emdash;Although the instrumentalities which are provided by the master are in themselves safe if properly placed and used, delinquencies of co-servants in the discharge of the entrusted to them may render the environment or place of work unsafe, and it is in such case a continuing duty of the master to' exercise reasonable care, by proper supervision and superintendence, to keep himself informed as to the manner in which the duties entrusted to them (the are performed. 3. Master and Servant&emdash;Safe Place to Work&emdash;Duty of Supervision by Master&emdash;Limitations Upon Master’s Duty.&emdash;There are limits to the master’s obligation of supervision and superintendence as stated in the preceding syllabus. For instance, he is not bound to supervise the merely executive details of the work to bg done by his servants, during the very progress of the work. He is not bound to protect the servant from transitory perils due to no fault of plan or construction or lack of and to no permanent defect or want of safety in the works, or in the manner in which they had been used. Nor from dangers caused by the frequent changes in- the progress of the work. Nor from dangers due to the preparation or care of the instrumentality, where such and care of the instrumentality are a part of the work which the injured servant or his co-employee undertook to do. Nor where the delinquent co-servant may- have handled or placed a safe instrumentality so carelessly as to convert it, for the time being, into an injurious agency. 4. Master and Servant&emdash;Safe Place to Work&emdash;Duty of Supervision by Master—Limitations Upon Master’s Duty.—There is a further limitation upon the non-assignable duty of the master of supervision and superintendence, and that is that such duty does not exist where the danger in question is known to the injured servant or is so open and obvious that he is presumed to have knowledge of it, under the settled rules of law on that subject, and is taken to have assumed the risk of such danger. 5. Master and Servant-—Safe Place to Work—Duty of Supervision by Master—Limitations Upon Master’s Duty—Assumption of Risk by Servant.—When the danger is not known to the servant and is not open and obvious, the limitations mentioned in the third syllabus merely suspend the continuing duty of supervision and superintendence resting upon the master during such time as such an abnormal condition may be reasonably anticipated by the injured servant to exist without the knowledge of the master. During such time the injured servant assumes the risk of the result of the negligence of his co-servants in the discharge of their executive duties in the premises. 6. Master and Servant—Safe Place to Work—Duty of Supervision by Master—Limitations Upon Master’s Duty—Assumption of Risk by Servant.—The duty of the master to exercise supervision and superintendence over his servants cannot be permanently abrogated or discontinued by his entrusting executive details of the work to his servants. He owes a duty to his servants to exercise reasonable care to keep himself informed how the executive duties entrusted to them have been performed by their co-servants. Hence, if such an abnormal condition, -which causes the injury to a servant, is not merely temporary, but has continued for such a length of time that the master has actual or constructive knowledge of it and he has, nevertheless, allowed it to remain in” that condition without taking reasonable steps for the protection of his servants from the danger attendant upon such condition, he is liable. And this is true also in other cases, independently of the cause of the abnormal condition, as when it is the result of an act of a stranger, or of a fellow-servant who is not a vice-principal, or of the operation of extraordinary physical force, or to some circumstance which is left wholly unexplained. 7. Master and Servant-—Inspection of Instrumentalities.—The duty of inspection of a safe instrumentality, which is incumbent on a master, rests upon the same principles and exists under the same circumstances as does the duty of supervision and superintendence of the servant’s place of work. 8. Master and Servant—Safe Place to Work—Open and Obvious Dangers—Case at Bar.—In the instant case the injury to plaintiff was caused by a fall due to the overturning of a 850-pound barrel of pork on the ehd of which the plaintiff stepped in the discharge of his duty as a salesman of the defendant in the usual and customary manner and in accordance with a long established arrangement of the goods of the latter in its storeroom ahd its established method of conducting its business, while he was in search of cases of glycerine bo fill an order for a customer. The barrel of pork in question was a perfectly safe instrumentality for the use to which it was put by the plaintiff, if the barrel had been placed in the usual and customary manner for the placement of such barrels in the storeroom; and the duty of putting it in its place in the first place, or of keeping it in position, did not rest upon the plaintiff. The question of fact as to whether the danger in question was open and obvious was submitted to the jury under proper instructions, and as there was ample evidence to sustain a finding of the jury that the danger was not open and obvious, that question was concluded in favor of the plaintiff by the verdict of the jury. 9. Master and Servant—Safe Place to Work—Open and Obvious Dangers—Case at Bar.-—In the case at bar there was ample evidence to sustain a finding of the jury that the dangerous condition of the barrel had existed for such a length of time that the master had constructive knowledge of it. 10. Appeal and Error—Assignment of Error—Error Not Assigned or Raised in The Court Below.—The question of whether a particular feature of an instruction is erroneous is not presented for decision to the appellate court, where no objection is made to the instruction on this ground by the assignments of error. 11. Master and Servant—Safe Place to Work—Supervision.— Where the dangerous condition of the environment, to whatever cause it may be due, is not open and obvious, but has existed for so long a time that the master’s non^assignable duty in the premises is no longer suspended, but exists, there is then a present duty on the part of the master to exercise due care by inspection, supervision and superintendence to inform himself, and he is affected with constructive knowledge of all the information which the exercise of such care would bring bo him. Whereas, the injured servant, in such case, has no duty resting upon him of affirmative action to discover latent dangers; he may rely upon the assumption that the master has exercised reasonable care in that direction for him; for, as to the servant, in such case, the test is not the exercise of care to discover dangers, but whether the defect is known or plainly discernible by the employee. 12. Master and Servant—Assumption of Risk—Case at Bar.—In the instant case, under the circumstances detailed in the eighth syllabus, it was held that the danger incident to the tipping over of the barrel was not a risk which was assumed by the plaintiff. 13. Master and Servant—Contributory Negligence—Case at Ban-.— In the instant case defendant invoked the rule that where two methods are open for the performance of a duty, one dangerous and the other safe for the operator, one who chooses the dangerous rather than the safe method is precluded from recovery, claiming that plaintiff might have ascertained from the foreman in charge of the floor where the glycerine was stored, instead of himself searching for it. Held: That the rule invoked was not applicable to the instant case, the foreman not being present at the time, and there being no evidence in the case that it was the duty of the plaintiff to make such inquiry, or that such was the custom.