ARK:] MCEACHIN, & MCEACHIN V. HILL. 1139 MCEACHIN & MCEACHIN V. HILL. 4-4378 Opinion delivered October 12, 1936. 1. MASTER AND SERVANT.-2-In action for damages for personal injuries by 'an employee who worked at night, evidence that adulterated gas was used in defective lanterns which exploded causing injury, together with other evidence, was sufficient to sustain judgment for plaintiff, on the ground that master's negligence was proximate cause of injury. 2. MASTER AND SERVANT.—The doctrine of assumed risk is predicated upon the knowledge of the servant of the risks to be encountered and his consent to be. subjected thereto; a laborer
1140 MCEACHIN & MCEACHIN V. HILL. [192 who had worked only one night before the injury, . and who testified that he did not know the -danger , , incident to the use . of •'defective Jante . rns, had a right to rely upon the judgment:of his eMployer and to assume that he Would not 'be subjected td • Any extraordinary dangers'..• 3. • MASTER • AND SERVANT.—Where, in an action by an employee against the master for injuries sustained when a defectiVe gaso • line lantern exploded, there was . no: allegation of the use of improper gasoline, evidence that a few weeks -before the accident • iniproper gasoline Was used in the 'lantern which necessitated ' • the cleaning out • of the Openings in the' •generator to inerease their size was comPetent for that- purpose, and 'did not tend to • indicate the, character of gasoline used at the time of .the.aceident. 4. DAMAGES.—Verdict for $25,000 . for injuries sustained: when .defective lantern exploded held, under the evidence, not , excessive. Appeal 'from Franklin Circuit Court, Ozark Dis.: triet ; J. 0.:Kineannon; Judge ;• affirMed: • Reynolds . & Maze, for appellant.. •• • • :•1 • • ••, . Carter. & Taylor, J. E..Yates . and Parta' in4 . Agee; for appellee. Appellee, 'Richard . Hill; AV8.8in . the . employ Of appellanteorpdratiOn whieh was' engaged in .the .rif a hridg. - • H i s dity Was to keep a; gaSOline engine in operatibn which TO-nished the 44OX.ver' •to rñn the . pump8. The' punitIS and engine were located:in an eXcaVatiOn;Und the Object .was to remove water from •the 'same so that the •ien Would be' able to 'work' the 'next day: . Appellee worked af night and on the second night of his employment, while aeting within the line of his duty, he suffered an injury from the explosion of gasoline and instituted an action against appellant which resulted in a • verdict • and judgment for him in the sum of $25,000. It is conceded that the trial court properly instructed the jury as to 'the applicable law e:kcept, it is insisted, that .uhder the undisputed evidence in the case,. 0,.yerdict should have been directed for .the appellant ; 'first, because of failure of appellee . to establish his case by substantial evidence, , and second, that appellee had assumed the risk Us-a matter of law.. • • • , The injury to appellee occurred while he was engaged iu filling a ..five-gallon. container with .ga soline rom a. barrel or tank 'which rested on.á truck .about..175. feet
ARK: MCEACITIN: & aLL'EACiIIN V. 'HILL. 1141 from-the. pump he ; was :operating: Appellee's; purpose was te,renew the . gPsoline ' in the engine which:was done by bringingit in.the five-gallon:container .from the truck and : then . pouring. it ,into the; tank. attached to the engine. In.,order to, pfford, dight . used. a . gasoline .lamp: !which he placed in, the vicinity of the truck while. withdrawing the gasoline ,from it., ; While . doing this there was ,an . explosion of some eharacter which . threw „ignited gasoline on ,appellee,'s.,legs, resulting,. in, severe . . and ;permanent ;,! ;.,' • .H . ...The .negligence . alleged, was the failure of appellant to furnish,.a; lantern.;in. good . condition ; that -the lantern furnished was defective,in that that part :of the miechan, ism of. the ; lantern..4alled the:: generator and . the ;parts connected therewith .were, old, ; worn*:and. not 'of: proper size , to .be used. in ,the lantern .and not . .propetly fitted therein ;, that the-generator; and . the parts . connected -therewith had become .clogged. with, carbon preventingthe lan; tern'from.properly functioning and . causing it to .explode thereby .communicating flames. to the gasoline being; handled by appellee. There is; some, dispute in the testimony regarding.the malmer invhich thel.antern came into ap-pellee 's', possession on the 'night . of the accident and, its position with relation to the, truck p t the. time ,of the ex, plosion. , The . jury llave..resolyed the .disputed questions in favor , ofthe appellee , and the testimony tending to support its -\ Ter. di.c.t. may be stated . as follows . :: , . : , .At, about 10 :30,p: m., on fhe, night; of the accident. the lantern Vas .given appellee by; his foreman,: Other..employees.had been using it prior, to. that, time in, a:different part of the Work..., When the lantern . was 'brought in a appeared to be : out .of. . order, and the'foreman; 'attempted to . rernedy,its condition, .but .wa.s' unable to do so, but told appellee that he would . hav,e to. nse. it that :night as: it; was the only ; lantern available. .So.:far , as it .can be determined from the :testimony: only . :f Our . . lanterns . were., ih use . on the job,: 'all. known as: .`,` Coleman7 lanterns, , or of similar ,construction:..: Shortly. 'after . .the :accident these lanterns were taken to: a' mechanic . in :Fort Smith .who found: all, of them . .defective, ; three of them' being. ;without .generators . and the other, identified by,,hirn., at . . the
1142 McEAcHIN & MCEACHIN V. HILL. [192 trial as one of the four brought to him ,, for inspection, was-, at the time when -brought, defective with relation to the generathr which he replaced with a new one. witness,. who had' done 'mechanical and • black-sthithing work for the• appellant some three or four weeks before appellee's' injury, but who Was not in'appellant's employ at that time,' testified that it was his duty', among other things, to keep , the lanterns going. He stated that the proper gaS 'to use in'the lanterns was white gas. He discovered, while filling the lanterns, that the gasoline was : not of • that character. • It was discolored and apparently, by some •means,: had had' an 'addition of some' other subStance. .WitnesS • stated that th07 would hAve to get some.'neW gasoline,' but thiS was not done until ' most of the adulterated gasoline had been used. This caused the generators , to clog from deposits of 'carbon . rendering . it neeessary- to eleart, .out•the 'holes in'the generators which:made these openings-larger than theY should have . been., The effect of this caused.the gasoline to spew and blow out:•:All of the lanterns on the job were affected, and all . had to . be 'cleaned' out. When this was'done, witness . tOld the foreman they . would have to. have neW•generators. 'New geheratots were obtained, but they did 'riot 'fit the lanterns in use: • ' Mr: BerrY 'Who' qtialified as • an expert With relation to 'the Structure and oPeration of • " Colerhan" lanterns, testified that they were conSidered the most efficient , in •general use and that • the lantern exhibited (supposed to'have been the on6 : used by appellee on the night of the'accident) i was nOt a "Coleman" lantern, but similar in' 'structure, there being no material , difference between the two. .This 'witness described a "Coleman" lantern, as f011ows . : ' "A- Coleman lantern operates under pressure; has a generator, a'inixing tube and a tank sealed air-tight : and 'a .primp to pump air in, the' tank. The generator is a piece 'of tube With wicking Or sonie thing in it to hold•that'gasoline from thioding the mantles and it has 'a. strainer: The heat of the generator boils the gasOline into a vaPor 'and it vaporiZes into a mixing tube and:if is.mixed with a.certain per cent, of air and burns on the , mantles a , Perfectly dry gas if the genera-
ARK.] MCEACHIN & MCEACHIN V. HILL 1143 tor is good and a good grade , of fuel is used. The hole in the generator is exactly the right size to furnish ,the right amount of gas. The generator is close enough to the mantles to boil the gasoline. That is: the function of all gasoline machines that burn under pressure. The mantles heat the generator and the generator furnishes the gas to the mantles, that . is , carried around and around." This witness further stated in effect that if a lantern was in good condition there would ordinarily be no danger in setting it lighted close to where gasoline was being changed from . one container to another. He stated that generators are : made : of, soft brass and when the holes become. clogged by carbon the insertion of a point of a needle would tend to enlarge them. So as . to cause an excess amount . of . gasoline to come through .and pass beyond the point of incandescence and out of the lantern creating danger of an explosion, but not necessarily Of sufficient violence tO shatter the lantern. We think there is abundant evidence that the Jan-terns in use at : the work of appellant on the night of the accident to appellee were not in proper, condition and justified the jury in the conclusion that their use in such condition-was negligence. It. remains to be seen whether there is evidence tending to show that such negligence . was' the' Proximate 'cause of appellee 's injury. Appellee stated that when he was preparing tO fill his can he placed the lighted lantern some distance froth the truck which he estimated at 25 or 30 feet, that a funnel was furnished for the ithrpose of removing the gas from one cOntainer to anOther; but this was broken 6.nd cOuld not be uSed; that he had abOut filled the can when he heard a 'noise at the lantern Which he designated as a "puff," and saw flanie conie' on its Outside; that he' was iminediately enveloped in flaming gasoline. There was Some question aS 'to" WhiCh Way'the wind was blowing:and its degree of 'force; but 'this waS circunistance which the jury considered in determining-the cause of the explosion at the truCk. y■ T hen it is remenibered that -the testimony is practiCally undisputed to the effect that there would be but little, if any, danger froin a gasoline lantern in proper Condition,"the inference is justly to
1144 MCEACHIN MCEACHIN V. HILL. [192 drawn that:there Was flaming gasoline projected.in some • manner-from the lantern •which ignited. the gasoline at the truck. < . . . . , On'the qUeStion. of assuMPtion of 'risk little need be said. :The • COUrt fully, and fairly inStruCted the jury on this 'iSsue, 'and' it' eanria 'be said as . _ a matter - of la* that appellee . .had sucb' peculiar knowledge of the dange . r at-. tendant . upen the Use 'of . def . ectiVe lantern as te make that danger . so 'Obviou'S that.one . of bis inforthation Would 'not expose'hiniself 'tberetd. The . dectrine of assinned .risk iS predicated upon the''knoWledge Of the Servant Of the ri§ks to. be encoUntereeand his conselA id be subjected thereto:: Ohico ' gO‘ R.1 . .4 . bithiiet, 169. Ark.:23, 273 'S.' W., Th. It *is not slioNyn diat aPPe , lled had . a . n . y knoWledge of or . WaS aCCustoined te use, gasoline lantern§ fOr a:11y 'cOnsiderable time . 110 had 'onIY Worked One night, and• hefOr'e I that ' his , WOrk was Stieh aS :wonid net acqbaint him wiih'faCts kyoni . 'ivliiCh 'he Might tea- Sonably Conclude there • Was any danger in the use of a 'defective lantern and'he . testified ithat he did nOt know there .ryi Ao;hgtt,t ile 'h'•the rig.hf to relY Up'on the jndgment • of' his employer and • to: . a .Ssume that WOuld not be subjected . to' any •extraOrdinary dabger. • r; • ...; Appellant„suggests ; that, , :pert:14n . :incompetent !evidence was admitted over , its , objection and: .exception which calls :for a. ,re y ersal of, the. case. • This : is the . testimony relating,•to.the. use of improper fluidjn the.lanterns. .It. is :insisted that no allegation was contained_in the • complaint relative . to the , .use of such ,fluids . and that, the amendment .1yhich alleged ,§uch improper : use .had been withdrawn... The . evidence did not relate to the charactor of gasoline used at the time. of, appellee's accident, but only tO such as was used prior thereto which explained iltpart the defectivo condition of the. lantern: That is to say, a. few . weeks . .before the accident improper gasoline was used in. the .lantern which necessitated, the cleaning .out -of:the openings .in the generator resulting in increas-• ing their.size, The , evidence, was competent for this pur-..pose,.and did not tend to incli:cate the character of gaso-, line in us.e at the time • of the accident— ..
1145 There remains to be considered the contention that the verdict , iS excessive. • The . appellee- • was 26 . yoärs old at the -time of .his injurk.. He-was 'not fitted;13y educatidn Or 'experience to earn a livelihood . exceptAY manuallabor. At the time of hiS accident he Was-earning forty eentS per hour *hich appears tO , be a 'less 81uhrtfian he was * Ordinarily : capable' of earning.. There is evidence of a substantial * character to fhe effect that' appellee j-aries 'are sileh : as . to.. permanendy prevent hiM froni earning wages ,by manual labor. 'In . additioi to-this; the evidence leaves no 'doubt as'to this having`Suffered intense • pain; And that' he will, in the futUre, suffer 'much' discomfort:. Taking 'into cong ideration•hiS age, 'earning capac-ity- at the time of his injury, and the handicaps' whiCh he 'will sUffer ; during the' , remainder of his . life, we can-ndt Sarthat the verdict ig:eXcessive. . . ' It' follOwS 'that lhe juclignient 'of : the 'trial cdurt' is cermet; sand' is' 'therefore. *: 'affilined.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.