Adams v. Hicks

• Decision Date: 31 January 1938
• Docket Number: 32919
• Citation: 178 So. 484,181 Miss. 165
• Court: Mississippi Supreme Court
• Parties: ADAMS v. HICKS

178 So. 484

181 Miss. 165

ADAMS v. HICKS

No. 32919

Supreme Court of Mississippi

January 31, 1938

Division A

1. MASTER AND SERVANT.

In employee's action against stockyards proprietor for injuries sustained when bulls, which he was driving to auction pen, were frightened by horses released nearby and ran over employee, evidence was sufficient for jury to find that proprietor did not exercise reasonable care to provide a reasonably safe place to work, by failing to provide locks for doors so that horses could not be released to mingle with bulls.

2. APPEAL AND EBROR.

The Supreme Court is not required to prescribe a certain method whereby an operation can be made reasonably safe for employees, but the court must declare that when facts warrant finding that employer has not exercised reasonable care to create a reasonably safe place for a human being to work negligence is established.

3. MASTER AND SERVANT.

A master has a nondelegable duty to exercise reasonable care to furnish a reasonably safe place for his servant to work.

4. MASTER AND SERVANT.

Where stockyards proprietor negligently failed to guard against release of horses into alleyway through which employee was driving bulls to auction pen, proprietor's negligence continued when bulls were frightened by released horses and ran over employee, even though proprietor might reasonably have anticipated that horses might be released, and proprietor was not relieved of liability to employee for injuries on ground that release of horses was the "sole proximate cause" thereof.

HON. A G. BUSBY, Judge.

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY Judge.

Action for damages for personal injuries by J. M. Hicks against M R. Adams. M. R. Adams having died while the cause was pending, it was revived in the name of Redford S. Adams, his administrator, and from a judgment for plaintiff, the administrator appeals. Affirmed.

Affirmed.

Gilbert & Cameron, of Meridian, for appellant.

There were no hidden dangers here; there were no dangers from which the employee could not escape by vigilance and by getting out of the way; there were no dangers here that any experienced man in handling animals could not know or anticipate; there were no dangers that any man who undertakes to handle animals could not have anticipated.

Jones v. Railroad Co., 90 Miss. 547.

It will be noted that in the case at bar there was no complaint made to Mr. Adams to make any repairs of any existing defect; to make repairs on the bolts to the pens or remedy any other defects; nor were there any charges of any defect on any of the equipment, appliances, or ways in the stockyards but the only charge was a demand for safer appliances, that is, substitute locks for the sliding bolts, and the Jones case, supra, held that it was not the duty of the master to use the safest appliances, even if the new ones were feasible.

Vehicle Woodstock Co. v. Bowles, 158 Miss. 347.

As to the charge that there was insufficient help, it is sufficient to say that there is no proof as to the number of employees in the alley nor any proof as to what additional help would have been necessary nor what their duties would have been nor what they could have done.

As to the suggestion in question to witnesses that there was no warning given when the horses left the pen, it is sufficient to say that no one knew who turned them out, no proof that employees did it, and besides, Mr. Hicks could have seen the horses as soon as any other employer as he was facing the same direction; the horses did not come from his rear and run him down, but came facing him and he could and should have seen them as quickly as a watchman.

Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279.

If Hicks had been working with his back to the horses we would have a different situation, for then the danger would have been hidden and the situation like that in:

Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Y. & M. V. R. R. v. Smith, 150 Miss. 882, 117 So. 339.

Whatever the danger it was open and obvious; there was no sudden breaking out of horses upon him; they had to travel a long distance before reaching him, always facing him, never running upon him unawares from the rear.

There is no contention that Mr. Adams undertook to warn him of approaching horses face to face with him as the company failed to do as agreed with Ferrell who was run into from behind, in the case of Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476.

The horses were not turned out by any foreman, or even employee, and Hicks was not in the predicament of Norton in Norton v. Standard Oil Co., 171 Miss. 758, 171 So. 691.

There was nothing complex about the business; there is no charge that rules should have been promulgated or that different rules were necessary or usual in the prosecution of the business.

Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.

There was no rule requiring him to be and remain in a position of known danger against which he could not protect himself as was Perritt in Long Bell v. Perritt, 172 So. 747.

The rules of law in respect to the obligation of the master to adopt and put into operation an adequate method or system for the safety of his servants are, in all substantial particulars, the same as those dealing with his obligation as to the promulgation and enforcement of rules and regulations for the maintenance of a safe method or system. And that obligation has been expressly defined by this court in Tatum v. Crabtree, 130 Miss. 462, 94 So. 449, as follows: "A master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the work about which such servants are engaged is dangerous to life or limb; it is only where, in addition to being dangerous, the work of the servants is also complex, and the conditions which may arise are uncertain and obscure. If the work is simple in character and free from complexities, the master is under no obligation to adopt rules. In other words, where the danger is apparent to all, the duty of the servants to avoid such danger is manifest, no rules are required."

Brown v. Coley, 168 Miss. 778; Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279; Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906.

If the master is not an insurer of the safety of the places, appliances, and machinery or employees, then how can he be held liable for the acts of third persons over whom Hicks had as much control or more than Adams had back in his office?

We respectfully submit that there was no issue for the jury and the court erred in refusing a peremptory instruction for the appellant and that the case should be reversed and rendered.

M. V. B. Miller, of Meridian, for appellee.

Appellee's case is this: that this practice of turning horses into the runway when cattle were being driven on same made it a place that was not reasonably safe to work in, and that the master failed in his duty to exercise reasonable care to make the place reasonably safe. Appellant's witness admitted that this practice made the place a place that was not reasonably safe. Therefore, the only issue left in this case was whether reasonable care would have made it reasonably safe.

As was held in the case of Anderson v. McGrew, 122 So. 492, decided by our court, if the master exercises reasonable care to make the place reasonably safe, he has performed his full duty, and the servant cannot complain that he would have preferred that the master have done something else than what the master did do in exercising reasonable care.

In the McGrew case, supra, a guard had been removed from a capping machine. The master in the place of it furnished the servant gloves, which the evidence showed would have afforded the servant as much or more protection than the guard that had been removed. Our court held that in furnishing the gloves the master performed his full duty.

In the case at bar, appellee was a laborer, with the duty of driving the cattle to and from the auction ring, and the further duty of unlocking and checking out at the northern exit of the stockyard stock that had been bought. He was not charged with any duty toward devising methods, or plans, ways, or means, or the system of the work. That was the nondelegable duty of the master.

It became a question for the jury to decide whether the master had exercised reasonable care to keep the runway where appellee Hicks was performing his duty reasonably safe.

Finkbine Lbr. Co. v. Cunningham, 57 So. 916, 101 Miss. 292.

In the case of Murray v. Natchez Drug Co., 56 So. 330, 100 Miss. 260, a case in which lighting gas, not wild horses, was permitted to escape in the laboratory of the Natchez Drug Company. No reasonable effort was made to protect file employees there from dangers that would result in an explosion of this gas. An explosion occurred resulting in a number of deaths. The trial court granted a peremptory instruction in this case. It was reversed and held by this court to be a case for the jury because the master had failed to exercise reasonable care.

Miss. Cotton Oil Mills Co. v. Ellis, 17 So. 214, 72 Miss. 191; Norton v. Standard Oil Co., 171 So. 691; McLemore & McArthur v. Rodgers, 152 So. 883; Lee County Gin Co. v. Middlebrooks, 137 So. 108.

In the case of Wilbe Lbr. Co. v. Calhoun, 140 So. 680 wherein plaintiff recovered a judgment which was affirmed on appeal, the facts briefly were these: The defendant operated a planing mill. Plaintiff was his employee and operated a ripsaw. It kicked a piece of timber back which struck appellee. The saw was unguarded. There was evidence also that a fellow servant contributed to the plaintiff's injury in the manner in...