Anderson-Tully Co. v. Goodin

• Decision Date: 21 October 1935
• Docket Number: 31833
• Citation: 174 Miss. 162,163 So. 536
• Court: Mississippi Supreme Court
• Parties: ANDERSON-TULLY CO. v. GOODIN

163 So. 536

174 Miss. 162

ANDERSON-TULLY CO. v. GOODIN

No. 31833

Supreme Court of Mississippi

October 21, 1935

Division A

1. MASTER AND SERVANT.

Employer would not be liable for injury sustained by employee in sawmill while applying resin to moving belt even though applied by safest method, since injury was ordinary risk of such employment.

2. MASTER AND SERVANT.

In action for injury sustained by employee in sawmill, while holding lump of resin against moving belt, employer held not liable as matter of law where resin might have been safely sprinkled on belt.

HON. E L. BRIEN, Judge.

APPEAL from the circuit court of Warren county HON. E. L. BRIEN, Judge.

Action by Grant Goodin against the Anderson-Tully Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Brunini & Hirsch, of Vicksburg, for appellant.

The law is that the master is as much entitled to expect that a servant will exercise reasonable care in the use and operation of a tool or appliance in the normal manner to avoid injury as the servant is entitled to expect that the master will use reasonable care to furnish him a reasonably safe tool or appliance.

39 C J. 824, sec. 1038.

When the law speaks of reasonable safety in a tool or appliance, or in a place to work, it means one which can be safely employed when the servant takes reasonable care in its normal use or operation. If this were not so nearly all modern labor-saving and time-saving devices would be condemned; and danger, not practicalities, would become the controlling test, which is not the law.

Seifferman v. Leach, 161 Miss. 853, 858, 138 So. 563; Brown v. Coley, 168 Miss. 778, 783, 152 So. 61; Hammontree v. Cobb Const. Co., 168 Miss. 844, 854, 152 So. 279; Newell Contracting Co. v. Flynt, 161 So. 298.

Howie & Howie, of Jackson, for appellee.

It is not the duty of an employee to inspect machinery operated by him to see whether it is safe and he does not assume the risk of the master's negligence. It is the duty of the master to furnish him with a safe place to work and safe appliances.

Planters Oil Mill v. Wiley, 154 Miss. 113.

In this case it was not the duty of Goodin to inspect the place where he worked to determine whether or not it was a dangerous place. It was the duty of Anderson-Tully Company to supply him with a safe place to work, which under the evidence it was admitted it was not safe.

Edwards v. Haynes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378.

It is elementary law that it is a nondelegable duty of the master to furnish the servant with a reasonably safe place in which to work, and that it is his further duty to maintain the place as a reasonably safe one.

Benton v. Finkbine Lbr. Co., 79 So. 346, 118 Miss. 558; Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80.

OPINION

Smith, C. J.

This is an appeal from a judgment for damages recovered by the appellee for a personal injury alleged to have been sustained by him because of the negligence of the appellant.

One of the assignments of error is that the court below refused to direct the jury to, return a verdict for the appellant.

The appellant is engaged in the business of sawing and manufacturing lumber, and the appellee was employed by it to assist in the operation of its machinery for sawing logs into lumber. The saw was situated on the second floor of the appellant's plant, and the logs were carried to that floor by a machine conveyor, from which they were transferred to another conveyor which took them to a carriage by which they were conveyed to and brought into contact with the saw. The power was communicated to these conveyors by a pulley revolved by an endless belt running over a wheel attached to the pulley. This pulley was situated on the ground floor. One of the appellee's duties was to scale the logs when they arrived at the second floor, transfer them to, the conveyor which carried them to the saw carrier, which conveyor he operated by means of levers. On the occasion in question the belt around the pulley wheel began to slip, whereupon the appellee went to the ground floor, and while putting resin or tar on the belt to prevent it from slipping his arm was pulled between the belt and pulley, and he was badly injured.

The appellee's complaint is that the appellant negligently failed to furnish him with a safe place wherein to do his work. The belt was several feet above the ground and could not be reached therefrom. In his declaration the appellee says "that at a former time the said defendant mill company had provided a ladder for the plaintiff or anyone else applying the resin to the belt to climb up so as to reach the belt, but this ladder has been permitted to be taken away and not be replaced, so that it became necessary for the plaintiff to climb upon the frame work and apply the resin without a ladder, that this arrangement without the ladder made it extremely dangerous for the plaintiff or anyone else to apply the resin as it was necessary, and as it was the duty of the plaintiff to do, under the circumstances as above alleged." The framework referred to therein was a trough partially inclosing the log conveyor, which was about four feet from the ground, and by standing on which one would be enabled to reach the belt and apply resin thereto. The ladder referred to was used generally about the plant, and when it was convenient of access the appellee used it to stand on while applying the resin, but when it was not accessible he had been accustomed to apply the resin by climbing up to and standing on the conveyor trough.

On the occasion here in question the appellee made no attempt to ascertain whether the ladder was accessible, but used the trough as a place on which to stand. While standing on the trough, the appellee "caught hold of a place" with his left hand in order to balance himself, and held a lump of resin against the belt about one foot from the pulley wheel, the friction thereby resulting causing the resin to melt and be taken up by the belt. What caused his arm to be drawn under the pulley wheel is not very clear from the evidence. The appellee said that the two ends of the belt were laced together, "and it (referring, it seems, to the lump of resin) must have hit the lacing and when the belt flew up like that that lacing there slapped my arm into that."

"Q. Between the belt and pulley? A. Yes, sir."

In another place, when asked what caused his arm to be drawn into the pulley, he answered, "Slack in the belt."

The appellee had been in the service of the appellant for several months. According to his evidence, when he was employed, the appellant's foreman told him to report to a man by the name of Williams, who was then discharging the duties which the appellee was employed to discharge, and that Williams...