Buckeye Cotton Oil Co. v. McMorris

Decision Date21 January 1935
Docket Number31482
Citation158 So. 799,172 Miss. 99
CourtMississippi Supreme Court
PartiesBUCKEYE COTTON OIL CO. v. MCMORRIS

Division A

MASTER AD SERVANT.

In employee's action for eye injury, evidence held to show conclusively that sack of cottonseed meal was loosened from stack and caused to fall by acts of plaintiff and fellow employee in tearing down stacks, and not as result of employer's negligence, entitling employer to peremptory instruction.

There was no evidence of negligence of employer in stacking the sacks of meal, and any presumption of negligence arising under res ipsa loquitur doctrine was overcome by evidence that at time of accident plaintiff and fellow employee were engaged in work which required the tearing down of the stacks and that stacks were torn down by them and that usual way to unstack them was to pull several sacks from the middle of the stack and cause it to fall, thus necessarily leading to conclusion that the sack which fell was loosened and caused to fall by acts of plaintiff and his coworker in tearing down the stacks and not as a result of any negligence in the stacking.

HON. W H. POTTER, Judge.

APPEAL from the circuit court of Hinds county HON. W. H. POTTER Judge.

Action by Smith McMorris against the Buckeye Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment for appellant.

Watkins & Eager, of Jackson, for appellant.

The evidence offered by the appellee in this case wholly failed to show negligence on the part of the appellant, and the court therefore, erroneously refused to instruct the jury to return a verdict for the appellant upon the appellant's motion made at the conclusion of appellee's testimony.

Hope v. Natchez, Columbia & Mobile R. R. Co., 98 Miss. 822, 54 So. 369.

Even if it were true that the happening of the injury created a presumption that there was a defect in the way the sacks of meal had been stacked, the burden would still be upon the plaintiff to show affirmatively that this defect existed as a result of appellant's negligence.

Miss. Cent. R. R. Co. v. Bennett, 111 Miss. 163, 71 So. 310; Von Scoter v. Megginson, 144 Miss. 510, 110 So. 247; Ala. & V. R. R. Co. v. White, 106 Miss. 141, 63 So. 345; Lampton v. Atkins, 129 Miss. 660, 92 So. 638; Mobile & Ohio R. R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Patton v. Texas & Pacific Railroad Co., 179 U.S. 658, 21 S.Ct. 275, 49 L.Ed. 461; 39 C. J. 972, sec. 1200; 39 C. J. 975, sec. 1201; Hand v. Boatner, 130 Miss. 292, 94 So. 162; James v. Yazoo & M. V. R. R. Co., 153 Miss. 776, 121 So. 819.

It has never been the law that the master shall insure the safety of the servant; and he does not have to see that it is absolutely safe. Ordinarily reasonable care and diligence is all that is required.

M. & O. R. R. v. Clay, 125 So. 819, 156 Miss. 463; Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Hooks v. Mills, 101 Miss. 91, 57 So. 545; 3 Labatt, Master & Servant, par. 919; Howard v. R. R. Co., 50 Miss. 178; Kenty v. R. R. Co., 77 Miss. 494; R. R. Co. v. Wooley, 77 Miss. 927; So. R. R. Co. v. McClelland, 80 Miss. 700; Matthews v. R. R. Co., 93 Miss. 325.

Howie & Howie, of Jackson, for appellee.

The liability of the master in the case at bar is propounded upon the theory, which theory was adopted by the jury, that because of the negligence of the master in failing to furnish the appellee a safe place within which to perform his work the injury herein complained of was received by the appellee.

Section 513, Code 1930.

Where an employee was injured in whole or in part by the negligence of the master then the assumption of risk does not apply.

When a servant is injured in any manner as the result of the negligence of the master the doctrine of res ipsa loquitur applies, and it then devolves upon the master by a preponderance of the evidence to show that the injury complained of was not received by his negligence.

Ala. & V. R. R. Co. v. Groome, 97 Miss. 201, 52 So. 703; 45 C. J. 1193, sec. 768; 45 C. J. 1201; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201.

Argued orally by Tom Watkins and W. H. Watkins, Jr., for appellant, and by Joseph Howie, for appellee.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit court of the First judicial district of Hinds county awarding the appellee damages for personal injuries alleged to have been sustained by him as a result of the negligent failure of the appellant to furnish him a reasonably safe place to work.

The declaration alleged that the appellee was employed by the appellant to work under the direction and supervision of a foreman of its plant; that at the time he was injured by being struck in the eye by a cake of cottonseed meal, he was engaged in loading sacks of cottonseed meal onto a truck; and that the injury was the result of the negligent manner in which the sacks of meal were stacked in the wareroom from which they were being removed.

To this declaration the appellant interposed a plea of the general issue, and gave notice thereunder that it would offer evidence to show that the appellee had not been injured in the manner alleged, but if so, that it was not the result of any negligence on the part of the appellant, but was the result solely of the negligence of the appellee or his fellow servant.

After the trial of the cause in the court below and before the stenographic transcript of the evidence had been prepared both the trial judge and the stenographer who took the stenographic notes of the evidence died. Thereafter a purported bill of exceptions was prepared, setting forth all the matters of record in the cause, and the substance of the testimony of each witness. This bill of exceptions was verified by the oath of the two counsel of record who conducted the trial in the court below. Counsel for the appellee did not challenge the validity of this purported bill of exceptions, or the...

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7 cases
  • Wilson & Co., Inc. v. Holmes
    • United States
    • Mississippi Supreme Court
    • 22 November 1937
    ... ... 235, 140 ... S.W. 174; Tatum v. Crabtree, 130 Miss. 462, 94 So ... 449; Buckeye Cotton Oil Co. v. McMorris, 172 Miss. 99, 158 ... The ... overwhelming weight of the ... ...
  • Gow Co., Inc. v. Hunter
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    • Mississippi Supreme Court
    • 11 May 1936
    ... ... 719, 161 So. 298; Superior Oil Co. v. Richmond, 172 ... Miss. 407, 159 So. 850; Buckeye Cotton Oil Co. v ... McMorris, 158 So. 799; Goodyear Yellow Pine Co. v ... Mitchell, 168 Miss ... ...
  • Curry & Turner Const. Co., Inc. v. Bryan
    • United States
    • Mississippi Supreme Court
    • 2 January 1939
    ... ... 786; Harper v ... Public Service Corp. of Miss., 154 So. 206, 170 Miss ... 39; Buckeye Cotton Oil Co. v. McMorris, 158 So. 799, 172 ... Miss. 99 ... At the ... time of the ... ...
  • Crosby Lumber & Manufacturing Co. v. Durham
    • United States
    • Mississippi Supreme Court
    • 28 February 1938
    ...v. Hammack, 148 Miss. 304; Petroleum Iron Works v. Bailey, 124 Miss. 11; Harper v. Public Service Corporation, 170 Miss. 39; Buckeye v. McMorris, 172 Miss. 99. Clay Tucker, of Woodville, for appellee. We, submit that the contract here, in issue is plain and unambiguous, and that evidence, h......
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