United Novelty Co., Inc. v. Daniels et al.
Supreme Court of Mississippi, in Banc.
42 So.2d 395, 1949.

ALEXANDER, Justice.

The decisive principles here involved are, while important, not novel. Appellees include the members of the family of William Daniels, a minor aged nineteen years, who was fatally burned while cleaning coin operated machines as an employee of appellant.

The work was being performed in a room eight by ten feet in area, in which there was a gas heater then lighted with an open flame. The cleaning was being done with gasolene. The testimony yields the unique circumstance that the immediate activating cause of a resultant explosion was the escape of a rat from the machine, and its disappointing attempt to seek sanctuary beneath the heater whereat it overexposed itself and its impregnated coat, and returned in haste and flames to its original hideout. Even though such be a fact, it is not a controlling fact, and serves chiefly to ratify the conclusion that the room was permeated with gasolene vapors. Negligence would be predicated of the juxtaposition of the gasolene and the open flame. Under similar circumstances, the particular detonating agency, whether, as here, an animate version of the classic lighted squib, or as in Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193, a bolt of lightning, was incidental except as illustrating the range of foreseeability. 38 Am.Jur., Negligence, Secs. 60, 62, 65. Richards v. Kansas Electric Power Co., 126 Kan. 521, 268 P. 847; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163. Compare Cumberland Tel. & Tel. Company v. Woodham, 99 Miss. 318, 54 So. 890.

It is argued that the deceased disobeyed instructions in using gasolene. Without discussing the efficacy of such contention as a complete bar, the record fails to show that any such orders were ever given the deceased. The insistent and consistent testimony of defendants' witnesses that there were repeated admonitions to employees not to use gasolene is more relevant to the foreseeability, even expectancy, of defendant that resort would be made to this cleaning agency, than to the fact of disobedience, since there is no showing that deceased himself was warned.

Negligence and disobedience of a servant are not excluded from the outreach of a master's duty to foresee probable conduct. The duty of the master is not met by the adoption of rules for safety, but includes a duty reasonably to enforce them. Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Loper v. Yazoo & M. V. R. Company, 166 Miss. 79, 145 So. 743; Albert v. Doullut & Ewin, 180 Miss. 626, 178 So. 312; Southern Package Corporation v. Mitchell, 5 Cir., 109 F.2d 609.

We do not set out the instructions complained of as given or refused. Those refused the defendant either were peremptory in character or invoked the doctrine of assumption of risk. An instruction for plaintiff which postulates the issue of negligence vel non upon acts set forth in the declaration and supported by the testimony is proper. McDonough Motor Express, Inc., v. Spiers, 180 Miss. 78, 176 So. 723, 725, 177 So. 655. It is not to be condemned as unduly emphasizing testimony nor as comment upon the weight of evidence, but is to be commended as '[informing] the jury what was necessary to make out the case stated in the declaration.' Other instructions requested by defendant and refused excluded the concept of the master's duty as nondelegable.

We have examined the other assignments and found in them no reversible error.

Affirmed.