Aponaug Mfg. Co. v. Hammond

• Decision Date: 20 March 1939
• Docket Number: 33609
• Citation: 185 Miss. 198,187 So. 227
• Court: Mississippi Supreme Court
• Parties: APONAUG MFG. CO. v. HAMMOND

187 So. 227

185 Miss. 198

APONAUG MFG. CO. v. HAMMOND

No. 33609

Supreme Court of Mississippi, Division A

March 20, 1939

APPEAL from the circuit court of Yazoo county HON. J. P. ALEXANDER Judge.

Personal injury action by J. E. Hammond against the Aponaug Manufacturing Company. From an adverse judgment, defendant appeals. Reversed and judgment rendered for defendant.

Reversed and judgment here for appellant.

Bozeman Cameron & Bozeman, of Meridian, and L. J. Wise, of Yazoo City, for appellant.

It is well settled that if the master provide a safe means or method for doing certain work, and the servant elects to use different and dangerous methods, he cannot recover, for the reason that such acts become the negligence of the servant and not that of the master.

Brown v. Coley, 168 Miss. 778, 152 So. 61; Stokes v. Adams-Newell Co., 151 Miss. 711, 118 So. 441; Martin v. Beck, 177 Miss. 303, 171 So. 14.

The mere fact that an unusual way was occasionally used by employees for convenience, as a means of egress and ingress, will not convert it into a passage way, and where an employee sustains injuries while unnecessarily taking a dangerous route instead of a safe route, he cannot contend that it was the duty of the employer to keep the route free from obstructions.

39 C. J. 349; Ovett Co. v. Adams, 109 Miss. 790, 69 So. 499; Buckeye Co. v. Saffold, 125 Miss. 407, 87 So. 893; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, 108 So. 467; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Eastman-Gardiner Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61; Hammontree v. Cobb, 168 Miss. 844, 152 So. 279; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Newell Constr. Co. v. Flynt, 172 Miss. 719, 161 So. 298; Anderson-Tulley Co. v. Goodin, 174 Miss. 163, 163 So. 536; Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Favre v. L. & N. R. R. Co., 180 Miss. 843, 178 So. 327; Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721; Martin v. Beck, 177 Miss. 303, 171 So. 14.

Even if the court should conclude that Hammond was "required" to use this space occupied by the rail, we submit that plaintiff's case would fall, for the independent reason that there is no showing that the master was negligent in any way to cause any unsafe place.

Actionable fault on the part of a defendant must be predicated on action or non-action, accompanied by knowledge, actual or implied, of the facts which make the result of his conduct not only a probable result, but a result also which he should, in view of those facts, have reasonably anticipated.

Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Graham v. Brummett, 181 So. 721; Gulf Co. v. Williams, 185 So. 234.

A master can presume that the servant will exercise reasonable care, having in mind all of the conditions under which he has to perform his duties.

Brown v. Coley, 168 Miss. 778; Favre v. L. & N. R. R., 180 Miss. 843, 178 So. 327; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Newell Constr. Co. v. Flynt, 172 Miss. 719, 161 So. 298.

It is, of course, elementary that, in order to fix liability on the master, the unsafeness of the place must be known to the master, either actually or constructively.

Hope v. Railroad Co., 98 Miss. 822, 54 So. 369; Lampton v. Adkins, 129 Miss. 660, 92 So. 638; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, 108 So. 467; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; 39 C. J. 606; 18 R. C. L. 736; Deviny v. Planters Oil Mill, 33 So. 492; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.

Aside from plaintiff's recognition of the fact, under the "dual capacity" rule so well recognized in this state, Davis, when he was performing this manual labor, had none of the attributes of a master or a vice principal, but was only a servant, a fellow servant of the plaintiff.

Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Barron v. Bass, 167 Miss. 786, 150 So. 202; Harper v. Public Service Corp., 170 Miss. 39, 154 So. 266; Buckley v. United Gas Co., 176 Miss. 282, 168 So. 462.

Barbour & Henry, of Yazoo City, for appellee.

The way traveled by the appellee was the usual and accustomed one, and there was no reason for him to depart therefrom after the welding of the rail had been completed. In other words, he was not departing from his safe way and voluntarily using an obviously unsafe one. It is manifest his duties required him to move about over the entire floor of the engine room to perform the numerous duties required of him. He was not confined to any limited area, but could use that part of the floor consistent with convenience, in view of the number of times he had to move about, and with all the parts of the room apparently safe. It is undisputed that he did not know the place that he usually walked over, and which he temporarily abandoned during the welding process, had been rendered unsafe by the act of the appellant's representative, Davis, its master mechanic and foreman and superior officer of the appellee.

Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721; Hardy v. Turner-Farber-Love Co., 136 Miss. 355.

The rule contended for by appellant is not an absolute and fixed one that a servant who happens to select a way which has been rendered unsafe by the master's negligence is precluded from recovery, because there was a way, even known to him which was absolutely safe. It is only when the way selected by him is manifestly unsafe. Again the rule is not applicable if any act of the master excuses or justifies of the less safe way. For instance, if the master acquiesces in the use of the less safe way, knowing the servant was using that way.

Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80; Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721.

The court will bear in mind that Davis undisputedly had completed the work and was rubbing his eyes, resting them from the glare of the torch. He admitted he used the gear blanks, but denied he left any of them on the floor. If they were left there as the jury has found the fact to be, it was the act of the master, through its vice-principal and representative, in charge of the premises. In other words, the master, himself, had rendered the place unsafe, and no question of notice, actual or constructive (by lapse of time) is involved.

The testimony of appellee that he momentarily forgot the rail was there is entirely consistent, and does not preclude recovery, as the gear blank was not readily noticeable, and the place was not obviously dangerous. The fact that momentarily the appellee was unmindful of the rail's presence, would at most constitute contributory negligence. In view of the fact that the presence of the rail was not the proximate cause of the fall, but the gear blank, the presence of which was unknown to appellee, then his forgetfulness was not the proximate cause of his injury. Aside from this with the undisputed fact in the record that appellee did not know the gear blank was there, it was at most a question for the jury to determine the contributory negligence of appellee. This was submitted to the jury by appellant's instruction and manifestly the jury applied it, by awarding $ 2000 for the serious permanent injury inflicted.

Stricklin v. Harvey, 179! So. 345; Railroad v. Slaughter, 92 Miss. 289; Lbr. Co. v. Fairchild, 155 Miss. 271; City of Meridian v. McBeth, 80 Miss. 485.

In Magers v. R. R. Co., 165 So. 416, this court held, "if the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw, nor should have foreseen, the extent of the harm or the manner in which it occurred should not prevent him from being liable.

Veney v. Samuels, 142 Miss. 476; Ragland v. Lbr. Co., 117 Miss. 602.

We respectfully submit that the case of Barron Motor Co. v. Bass, 167 Miss. 786, in which the opinion was written by Justice GRIFFITH is conclusive against the appellant. In the Barron case the plaintiff went to the welding room of the defendant which was in charge of a foreman, who was held by this court under facts identical with those in the case at bar to be a vice-principal, or representative of the master. A drawing knife had been placed on the welding table by the foreman, and the plaintiff while about his work at the table was injured when his hand came in contact with it. The court held the relation of fellow servant did not exist, and there had been a violation of the duty of the master to exercise reasonable care to keep the place where plaintiff was required to work in a reasonably safe condition. In other words, the master, through the act of its vice-principal, had rendered the place unsafe.

Curry & Turner Construction Co. v. Bryan, 185 So. 256.

Argued orally by Ben H. Cameron, for appellant, and by J. F. Barbour, for appellee.

OPINION

Smith, C. J.

The appellee recovered a judgment against the appellant, his employer, for a personal injury alleged to have been caused him by the negligent failure of the appellant to furnish him with a safe place in which to work. One of the assignments of error is that the court below refused the appellant's request for a directed verdict.

The appellant owned and operated a textile manufacturing plant. The room of this plant, in which the appellee was at work when his injury occurred, is about thirty-six by forty feet in size, and below it is a boiler room, which is reached by a stairway at the northwest corner thereof extending down about seven feet. At the south end of this room is a bench on which are covered rollers. A short distance north of this bench is a burning down machine. To the west of this machine a short distance from the western wall of the room is an electric generator, and a short...