C. & R. Lumber Co. v. Crane

• Decision Date: 24 March 1924
• Docket Number: 23904
• Citation: 99 So. 753,135 Miss. 303
• Parties: C. & R. LUMBER CO. v. CRANE. [*]
• Court: Mississippi Supreme Court

99 So. 753

135 Miss. 303

C. & R. LUMBER CO. v. CRANE. ^[*]

No. 23904

Supreme Court of Mississippi

March 24, 1924

Division B

Suggestion of Error Overruled May 12, 1924.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by Arthur Crane against the C. & R. Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

Deavours & Hilbun, for appellant.

I. Did appellant fail to provide a safe place for appellee to work?

Under the peculiar facts of this case we submit that there was no negligence in this respect. Taking into consideration the nature of the work that appellee was employed to do, he had a reasonably safe place in which to work. The very work at which he was employed was of such a nature that its progress was constantly changing the conditions as regards an increase or diminution of safety. The hazards of the work, arising as the work proceeded, and as he rode from place to place over the woods, were the ordinary dangers of the employment. And when he accepted employment in this kind of work, he necessarily assumed the ordinary dangers of the employment.

This court, in Cybur Lumber Company v. Erkhart, 79 So. 235, has, it seems to us, forever settled this proposition against appellee. 3 Labatt on Master and Servant (2 Ed.), par. 1177; 18 R. C. L., par. 96; Citrone v. O'Rouke Engineering Construction Company, 188 N.Y. 339, 80 N.E. 1092, 19 L. R. A. (N. S.) 340, and note. The danger to the servant in this case is manifestly a transitory peril which the master could not foresee or provide against.

II. Did appellant direct appellee into a place of known danger, thereby causing him injury?

We submit that under the circumstances of this case that appellee was not ordered into a place of danger. The very nature of the business he was employed to do, made it necessary for appellee to ride around stumps, trees, tree tops and limbs. He could in no other way perform the duties of his employment. There was nothing unusual in this situation--nothing unusual about the ordinary tree top lying in the woods. In fact appellee testified that while he was watching his way, he did not see the tree top until he ran into it and was injured. If appellee who was riding along, watching his way, could not see the tree top and did not see the danger in riding along, how can it be contended that under the circumstances there was negligence in failing to provide a safe place for him to work?

Conceding for the sake of argument only, that the place was unsafe, we submit that there is no evidence in the record to show that appellant had either actual or constructive notice of such danger. The rule in determining whether an order is negligent, under the circumstances, is stated in 4 Labatt's Master and Servant (2 Ed.), sections 1361, 3918.

If appellee who was on his horse riding in the direction of the tree top, looking in that direction, as he testified, could not and did not see the tree top and the limb that he claims caused his injury, how can it be contended that this foreman who was one hundred and fifty feet away could have seen or had notice of the alleged danger? We therefore submit that appellee has wholly failed to prove the most vital element in his attempt to show negligence. And therefore he cannot recover on the ground that he was ordered by appellant into a place of known danger.

F. B. Collins, for appellee.

This case was bottomed on the theory that defendant's foreman directed plaintiff into an unsafe place, and he was thereby injured. Appellant argues at great length the question as to whether defendant owed plaintiff the duty to furnish him a safe place to work, and the fact that the progress of the work was constantly changing the conditions as regards to the increase or diminution of safety.

This case is different in two respects from the cases cited and the principle argued by appellant. First: The nature of the work did not change the safety of the place, for plaintiff was not working on a place, but was furnished a different way each time, or at different times, and had nothing to do with making it safe or dangerous. Second: Plaintiff did not have time to pick out his way, but was depending altogether upon his foreman to select him a route and fix the way. This was a part of the duty of the foreman and no part of the duty of the plaintiff.

The case of Cybur Lumber Company v. Erkhart, 79 So. 235, relied upon by appellant to sustain his contention in this case is different in facts from the case at bar in two very important respects, viz: First: In the case at bar the plaintiff relied upon the foreman of defendant to perform his duty in selecting him a place to ride, and had a right to assume that he would perform that duty. This fact does not appear in the Cybur Lumber Company case. Second: The foreman of defendant ordered plaintiff into the place that he had selected, and having selected the place it was his duty to see that it was a safe place, and was charged with the knowledge of its dangers.

The facts of this case disclose that the foreman of the crew with which appellee was working directly and expressly ordered plaintiff to go through this place of danger and the place where he was injured. Why did the master undertake to select the way if it was not for the purpose of protecting the servant from just such dangers as he encountered in the case at bar? If the servant understands that the master is looking out for a place all the time for him to travel and over which he does his work he certainly is relieved of the duty of selecting his own way, and he is certainly warranted in relying upon the superior knowledge of the master in making the selection, and this is true notwithstanding the fact that the way over which plaintiff must travel is seldom the identical way. If the master did not have the knowledge in this case of the danger in this way he should have had because it was his duty to know this before he ordered plaintiff to go in this way. To be ignorant was to be negligent.

Jeff Collins, also for appellee.

Counsel for appellant contends that because the foreman did not have actual knowledge that this was a dangerous place over which for appellee to travel as he was traveling, the appellant, therefore, is not liable. But this is not the rule of law applicable to this kind of case. 26 Cyc., pages 1142 and 1164 lays down the correct rule.

The author here cites a number of authorities in support of this rule. Hence it is our contention that it was the duty of appellant or its foreman, before directing appellee over this particular route, to see that it was a reasonably safe route over which for appellee to travel in the manner in which he was directed to travel. It seems to us that it would be equivalent to hold that a master owed his servant no duty whatever, while operating a skidder in pulling logs to its railroad track, to hold that appellant was not liable under the facts in this case.

OPINION

ETHRIDGE,...