Albert v. Doullut & Ewin, Inc.

• Decision Date: 24 January 1938
• Docket Number: 32987
• Citation: 178 So. 312,180 Miss. 626
• Parties: ALBERT v. DOULLUT & EWIN, INC., et al
• Court: Mississippi Supreme Court

178 So. 312

180 Miss. 626

ALBERT v. DOULLUT & EWIN, INC., et al

No. 32987

Supreme Court of Mississippi

January 24, 1938

Division B

Suggestion Of Error Overruled March 7, 1938.

APPEAL front the circuit court of Lamar county HON. HARVEY MCGEHEE Judge.

Wrongful death action by Parlee Albert administratrix of the estate of Ezell McWilliams, deceased, against Doullut & Ewin, Inc., and others. From a judgment entered on a directed verdict for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

E. F. Coleman, of Purvis, and Adam H. Harper, of New Orleans, La., for appellant.

The law is well settled in Mississippi that where a servant is required to work in a place where dangers arise or recur unexpectedly and unknown to the servant, then the duty rests upon the master to give timely warning to the servant of these dangers.

Edwards v. Lbr. Co., 113 Miss. 378; Y. & M. V. R. R. Co. v. Smith, 150 Miss. 882; Gulf Refining Co. v. Ferrell, 165 Miss. 296; McLamore & McArthur v. Rogers, 169 Miss. 650; Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191; 18 R. C. L., page 573, sec. 80; Fletcher v. Ludington Lbr. Co., 76 So. 592; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577; Tatum v. Crabtree, 130 Miss. 473.

The testimony for the appellant shows or establishes the fact that there was no warning given the deceased, Ezell McWilliams, and this being true then the duty resting upon the appellees was breached by them. This being true the court below should have overruled the motion for a directed verdict and permitted the case to go to the jury, and having refused to do this, the court below committed error.

Testimony that a fact did not occur, given by witnesses, so situated that in the ordinary course of events he would have heard or seen the fact that it occurred is sufficient to warrant a jury in finding that the fact did not occur.

1 Wigmore on Evidence, sec. 664; 23 C. J. 40; Y. & M. V. R. R. Co. v. Lucken, 137 Miss. 572; G. & S. I. R. R. Co. v. Carlson, 137 Miss. 613; Grantham v. G. & S. I. R. R. Co., 138 Miss. 360; G. M. & N. R. R. Co. v. Hudson, 142 Miss. 542; C. & G. R. R. Co. v. Lee, 149 Miss. 543; Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191.

The duty resting upon the master in the case at bar was a non-delegable one, and could not be passed on or delegated to another servant and then permit the master to stand behind the failure of that servant as a defense in the case.

Gulf Refining Co. v. Ferrell, 165 Miss. 296.

It is a non-delegable duty of the master to warn the servant of arising dangers which arise at a time when the servant is busy engaged in the work of the master and the dangers are unknown to the servant but are known to the master, and also the master cannot be relieved by shifting the responsibility to a fellow servant, for the failure of the fellow servant would be the failure of the master.

Gulf Refining Co. v. Ferrell, 165 Miss. 296; Edwards v. Lbr. Co., 113 Miss. 378; Y. & M. V. R. R. Co. v. Smith, 150 Miss. 882; A. & V. R. R. Co. v. Groome, 97 Miss. 201; Murray v. Natchez Drug Co., 100 Miss. 260; Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191; Railroad Co. v. Bailey, 40 Miss. 395; Pord v. Lake Shore, etc., R. R, Co., 124 N.Y. 493, 26 N.E. 1101; Fletcher v. Ludington Lbr. Co., 76 So. 592; 18 R. C. L. 573, sec. 80.

The court below was in error in directing a verdict for the defendant, and taking the case from the jury. The law is well settled in Mississippi that, where there is substantial evidence tending to establish the plaintiff's case, verdict may not be directed for the defendant. This proposition is so well settled we feel that it will require the citation of no authorities, but in support of the proposition, we cite the following cases from the many:

Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55; Newton v. Homochitto Lbr. Co., 162 Miss. 20.

It is the plain duty of the jury to determine all questions of negligence and contributory negligence.

Section 512, Code of 1930.

It is a well settled law in Mississippi that an employee shall not be held to have assumed the risk of his employment where injury or death results in whole or in part from the negligence of the master.

Section 513, Code of 1930; 18 R. C. L. 601, par. 101; 39 C. J., pages 523-525, par. 629; G. & S. I. R. R. Co. v. Bryant, 147 Miss. 421; Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Dinkmann Lbr. Co., 16.7 Miss. 246.

Davis & Davis, of Purvis, for appellees.

The entire record shows that the work being done was of such a nature that whatever danger there was arose out of the doing of the work itself and was transitory. No employee was stationary for any particular length of time, and especially appellant 's intestate, Ezell McWilliams. The evidence shows that he could see and hear, that he had been in the crew for a number of days, that he knew the exact method and manner of doing the work, that he knew that trees were being cut down from time to time, and that his employment required him to go from place to place and that his employment did not permit him to be stationary any length of time at any given point. The condition that existed one moment would be immediately changed, and any danger that arose, grew out of the very nature of the work being done and Ezell McWilliams was fully acquainted with that fact. It was his duty to use due diligence to look out for his own safety. Whatever danger there was connected with his employment grew out of the changing condition of the work as it progresses and was an incident to the work being done and Ezell McWilliams assumed the risk of whatever danger there was incident to his employment.

An exception to the rule requiting the employer to make safe the place where his employees are at work is said to exist where the condition of the place is constantly changing as the work progresses.

18 R. C. L. 595, par. 96; 3 Labatt (2 Ed.), 1177; Cytrone v. O'Rourke Engineering construction Co., 80 N.E. 1092; Cybur Lbr. Co. v. Erkhart, 235, 118 Miss. 401; International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413; Railroad Co. v. Williams, 96 Miss. 373, 53 So. 619.

We submit that the work of appellant's intestate, Ezell McWilliams, was not complex. It cannot be said, in the opinion of counsel for appellees, that the picking up of brush out in the open woods and carrying it and placing it in piles, is in any way complex.

The 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, such rules being only required where, in addition to the place being dangerous, the work of the servants is complex, and the conditions which may arise are uncertain and obscure. Where there are no complexities and where the danger is manifest, no rules are required.

Tatum v. Crabtree, 130 Miss. 426, 94 So. 449; Brown v. Coley, 168 Miss. 778, 152 So. 61; 18. R. C. L. 570, par. 78; G. M. & N. R. R. Co. v. Brown, 143 Miss. 898, 108 So. 503.

The appellee, Doullut & Ewin, Inc., under the law, was not under any non-delegable duty to promulgate rules and to give plaintiff's intestate, Ezell McWilliams, warning of the felling of the tree in question.

39 C. J. 490, par. 603; Chesapeake, etc., R. Co. v. Hennessey, 96 F. 713, 38 C. C. A. 307; Graham v. Detroit, etc., R. Co., 151 Mich. 629, 115 N.W. 993, 25 L. R. A. (N. S.) 326; Mercantile Trust Co. v. Pittsburgh, etc., R. Co., 115 F. 475, 53 C. C. A. 209.

The employees who sawed down the tree in question were the fellow servants of appellant's intestate, Ezell McWilliams. Therefore, the failure to give the warning as alleged in the declaration was the act of a fellow servant, for which Doullut & Ewin is not liable.

Hercules Powder Co. v. Hammock, 145 Miss. 304, 110 So. 676; McMaster v. I. C. R. R. Co., 65 Miss. 264, 4 So. 59; Nelton v. E. E. Jackson Lbr. Co., 133 Ala. 580, 31 So. 848.

Argued orally by E. F. Coleman, for appellant, and by T. W. Davis, Sr. and Jr., for appellees.

OPINION

Anderson, J.

This action was brought in the circuit court of Lamar county by appellant for the wrongful death of Ezell McWilliams; the suit was by appellant, as administratrix of Iris estate, against appellees. At the conclusion of the trial, the court, on appellees' motion, directed a verdict and judgment in their favor. From that judgment this appeal is prosecuted.

On the first of April, 1937, the appellee Doullut & Ewin, Inc., was engaged by contract in the construction of a public highway from the town of Purvis to the city of Hattiesburg in this state. The right of way for the highway was 100 feet wide. It had to be cleared of all trees, brush, and other debris. Appellee employed a large number of men to clear the right of way. They were divided into crews consisting of from 12 to 15, each crew was under the direct supervision and control of a foreman whose duty it was to see that the work was properly done, and to that end supervise and control the work. Each crew was divided so that some would be sawing down the trees standing on the right of way, while others would be chopping the trees already sawed down into lengths, and others would be piling up and burning the brush and other debris. At the time of his, death McWilliams was working these crews under the direct control of appellee O'Neal as foreman. He had been selected, and it was his duty, to pick up and pile the brush and debris for burning, and while so engaged a tree was sawed down by other ...