Batson Hatten Lumber Co. v. Thames

• Decision Date: 21 March 1927
• Docket Number: 26360
• Citation: 114 So. 25,147 Miss. 794
• Court: Mississippi Supreme Court
• Parties: BATSON HATTEN LUMBER CO. v. THAMES. [*]

114 So. 25

147 Miss. 794

BATSON HATTEN LUMBER CO. v. THAMES. ^[*]

No. 26360

Supreme Court of Mississippi

March 21, 1927

Division A

MASTER AND SERVANT. Employee's voluntary attempt to move defective truck without assistance, held proximate cause of injury.

Employee's voluntary act in attempting to move a truck from one track to another, difficult because of flat wheel and the second track being higher than the first, without the aid of all the members of the crew assigned therefor exerting an extraordinary and unusual amount of strength in so doing held' the proximate cause of his injury by rupture.

Suggestion of Error Overruled Oct. 10, 1927.

APPEAL from circuit court of Harrison county.

HON. W A. WHITE, Judge.

Action by J. E. Thames against the Batson Hatten Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

See also, 108 So. 181.

Judgment reversed.

Ford, White, Graham & Gautier, for appellant.

The court erred in refusing appellant peremptory instructions on each of the counts in the declaration. Appellee attempts to recover in this case, on the theory that the master did not furnish enough men; his testimony is, that he had an insufficient crew, in that he only had three men, other than himself, engaged in the handling of the truck of lumber at the time he was hurt. He bottoms his case on the fact that a part of the men did not work, but he nowhere complains to the master and nowhere had made any showing that the master knew or ought to have known in the exercise of ordinary care, that any man or any part of the men engaged in this work would decline, or did decline to render assistance, therefore, the master was not negligent in the retention of these men in its employ. We find the facts on this point the same as was passed on by this court in the case of Ingram-Day Lbr. Co. v. Joh, 107 Miss. 43, 64 So. 934.

Appellees testimony and the testimony of his witnesses, show beyond question that a reasonable number of men were furnished. G. M. & N. Railroad v. Nutt, 81 So. 642. There, the court held that this contention had no merit, that it did not appear that two men could not easily carry the ties in question.

We anticipate that appellee will say that there was a flat wheel on the truck, that this was negligence on the part of the master and therefore, negligence being shown, the matter should be submitted to the jury. To this, we submit first, that the flat wheel was in no way the proximate cause of any claimed injury to appellee, no more so than if the master had sent the appellee in charge of an automobile, furnished with jack to use in raising (in the event of a flat tire); while using said automobile, employee had a flat tire; instead of using the jack provided to safely elevate the car to remove and repair the tire, he elects to lift the car literally by hand and injures himself. It could never be said that the master was negligent, because he furnished him a safe way, a safe jack to use in the event of this contingency.

It is further shown that the master, going further than is required, taking extra precautions against any emergency that might arise, supplied its men with a pinch bar to prize with, to make the work safe in every event, the appellee knew this and knew how to use it, but declined to accept the safe course and therefore, cannot now be heard to say that the master did not use that degree of care required by it by the law. As applicable to this question shown by the record in this case, we respectfully refer to Ovett Land & Lbr. Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Rose v. Pace, 109 So. 661.

As to the appellee's further contention, that the master was negligent in permitting the truck to be one-half inch out of line, we submit that there are no substantial facts to admit of argument; in fact, his testimony is that the track being out of line did not cause his injury. At most he only says that it might have made it worse and this allegation is met with the condition with reference to the using of the pinch bar the safe way, to the same extent as is shown as to the flat wheel.

This case is one where the defect developed in the course of the use of the instrumentality, with him having the first opportunity to discover and in fact discovering the defect. The master not knowing and having no opportunity of knowing thereof, and is controlled by the rule laid down in Alabama & Vicksburg Railway v. White, 106 Miss. 141, 63 So. 345; Mississippi Central Railroad v. Bennett, 111 Miss. 163, 71 So. 310; Ten Mile Lumber Co. v. Garner, 117 Miss. 814, 78 So. 776; Lampton v. Adkins, 92 So. 638.

There is nothing in any notice given by appellee to anyone to cause the master to anticipate such course of action and if the master could not so anticipate the injury, in the exercise of that degree of care of an ordinarily prudent person, which the record shows that the master did exercise in this case, then there can be no negligence imputed to the master. There being no negligence on the part of the master, the appellee necessarily, in doing as he did in the present case, assumes the risk ordinarily incident to his employment and his undertaking the work in the manner he did, and therefore falls within the rule laid down by this court in Natchez Cotton Oil Mill Co. v. McLaid, 33 So. 723; Y. & M. V. Railway v. Hullun, 119 Miss. 229, 80 So. 645; J. J. Newman Lbr. Co. v. Dantzler, 107 Miss. 31, 64 So. 931; Great Southern Lbr. Co. v. May, 102 So. 854.

J. C. Mize, for appellee.

Counsel contend that the appellant was entitled to a peremptory instruction on the ground that he was not acting in the scope of his employment. Appellant's contentions are shown to be without merit by a mere reference to the facts of the case.

The record shows without dispute that Davis was general yard foreman, and that Blackwell was foreman of the dry kiln, and that appellee was under Davis' orders, and that on the very day appellee was injured, Davis directed him to do this work, and that this duty was enumerated in the requirements of him when Davis hired him. See also Davis' testimony that he had directed Thames that morning to go and help Blackwell fill the kiln, that Thames was under his orders, etc.

So, the contentions of the appellant on this phase of the case are settled by the opinion of the court on the former appeal in this case 108, 182. The next contention of appellant is that there was no evidence supporting the declaration. The evidence clearly shows that the appellant was negligent.

Appellant contends that it was entitled to a peremptory instruction on the ground that a pinch bar furnished by the master was not utilized. In this, counsel is in error. The testimony does not show that the master furnished a pinch bar or that it was proper to use one; it just shows that the men would resort to a pinch bar to get a fouled car over on to this out-of-line transfer track, and it would not have been necessary to use a pinch-bar if the wheels and track had been in the proper condition and a sufficient number of men had been furnished by the appellant to move this heavy car of lumber.

We therefore say that there is no question but what the peremptory instruction requested by appellant was properly refused.

Ford, White, Graham & Gautier, in reply for appellant.

The first assignment of error challenges the correctness of the ruling of the court below in refusing a peremptory instruction for appellant. On the facts stated by appellee there is no liability. There can be no liability on the part of a master except for some negligence which proximately contributed to the injury of a servant. What, then, was the proximate cause of appellee's injury? What negligence on the part of the master that even remotely caused his injury? The injury was caused solely by his own folly in trying to move the car without calling for more help which was at hand and without making use of the pinch bar which his master had furnished him for that purpose. There was no question of fact as to what was the proximate cause of the injury in this case; no question for the jury to pass upon; but the proximate cause of the injury stands out so closely that the court should have directed a verdict for appellant. Melton v. R. R. Co., 254 S.W. 510; Hunter v. Busy Bee Co., 271...