Cecil Lumber Co. v. Mcleod

• Decision Date: 14 June 1920
• Docket Number: 21094
• Citation: 85 So. 78,122 Miss. 767
• Court: Mississippi Supreme Court
• Parties: CECIL LUMBER CO. v. MCLEOD

85 So. 78

122 Miss. 767

CECIL LUMBER CO. v. MCLEOD

No. 21094

Supreme Court of Mississippi

June 14, 1920

March 1920

1. MASTER AND SERVANT. Leaving cogwheels exposed held negligence.

The master is guilty of negligence in failing to furnish the employee with a reasonably safe place in which to work where the revolving gear or cogwheels were left uninclosed and exposed at the roller bed, where the employee in performing his work was compelled to lean his body over the roller bed and was injured by the exposed cogwheel.

2. MASTER AND SERVANT. Negligence in hiring incompetent servant defined.

The master is guilty of culpable negligence where he knowingly employes an incompetent servant and places him in control of dangerous machinery and a coemployee is injured by the failure of the incompetent servant to stop the machinery when called upon by the coemployee in peril.

3. MASTER AND SERVANT. Hiring deaf servant held negligence.

Where the servant is incompetent on account of deafness, and it is his duty to start and stop dangerous machinery where his fellow employees are at work, and on account of such deafness he fails to act, which failure caused or contributed to the injury of the coemployee, the master is guilty of negligence in knowingly hiring and retaining such incompetent servant.

4. MASTER AND SERVANT. Hiring incompetent servant unable to prevent injury held negligence.

Employees in control of dangerous machinery, whose duty it is to start and stop it, owe a duty to their fellow employees working in close proximity with the same machinery to prevent injury to such coemployees when their perilous position is known to the employee in control and who has the opportunity to act; the master is guilty of negligence in konwingly employing an incompetent servant who is unable to act when a fellow servant is imperiled and injured, where such peril would have been know to a competent person.

5 TRIAL. Statute relating to cure of erroneous instruction by failure to ask further instructions does not apply to instructions granted by court.

Though an instruction is technically erroneous and should not have been given, the error is not cured by appellant's failure to have the court instruct the jury to disregard a faulty count under Code 1906, section 777 (Hemingway's Code section 560), as the statute has no application as to erroneous instruction granted by the court.

6. APPEAL AND ERROR. Erroneous instruction held harmless.

The granting of an erroneous instruction for plaintiff was harmless, where it clearly appeared that no testimony was offered to the jury in support of the counts of the declaration to which it related, and it was reasonable to say that the jury was not misled or confused, within Supreme Court Rule 11 (72 S. vii), especially where the real issues were ppresented by other counts covered by instructions given.

HON. W J. CRANFORD, Special Judge.

APPEAL from circuit court of Pearl River County, HON. W. J CRANFORD, Special Judge.

Action by James McLeod against the Cecil Lumber Company. Judgment for plaintiff, and defendant appeals, Affirmed.

Judgment affirmed.

McDonald & Marshall, for appellant.

It is submitted by the appellant that the granting of the first two instructions requested by the appellee in the court below so clearly constituted reversible error under the facts of this case and the previous decisions of this court, that the matter is not susceptible of serious debate.

While there was no evidence at all introduced below in substantiation of the charges of negligence of appellant embodied in the second count of appellee's declaration, and the only evidence that was introduced in the trial at all bearing upon the point, flatly negatived the charges of appellant's negligence as a proximate cause of the accident embodied in the third count of appellee's declaration, the learned court in these instructions, with emphasis, charged the jury that if the jury believed that the appellant "was guilty of any negligence as charged in the declaration which contributed in whole or in part to the plaintiff's injury . . . it is the sworn duty of the jury to find for the plaintiff and assess his damages . ."

In other words, if the jury believed from the evidence, according to these instructions, that appellant had negligently "left one end of said shaft unsupported, which caused said shaft to play, or wobble while in motion" and this negligence caused, or contributed to the causes of the injury, it was the sworn duty of the jury to find for the plaintiff." And there was not a scintilla of proof to warrant the jury in finding that one end of the said shaft was unsupported, or that said shaft "played" or wobbled while in motion; or that said shaft had any part in the proximate causes of the injury to the appellee. According to these instructions, the jury was emphatically charged by the learned court that is was "the sworn duty of the jury to find for the plaintiff and assess his damages" if the jury believed that "said lever, on account of its defective condition, would not catch and hold, and could not be made to do so and such condition of the lever proximately caused or contributed to the causes of the accident." And all the testimony introduced below manifested that the lever functioned perfectly, and that its condition was not an element in the proximate causes of the accident.

Tomes of authority may be cited in condemnation of these instructions, but we feel that we need burden the court no further than to refer the court to case of J. J. Newman Lumber Company v. Adolph Dantzler, 117 Miss. 31, 64 So. 931.

Even in a case where the evidence sustains all the allegations of negligence contained in the declaration, and where the jury could easily refer to the declaration and ascertain therefrom the ground of action alleged, this court in the case of Southern Railway Company v. Ganong, 55 So. 355, said of the practice of drawing instructions in this manner: "By these instructions the jury was directed, in substance, to return a verdict in favor of appellee, if the evidence showed she was injured in the manner set out in the declaration. This was error. The jury was entitled to have the law of the case, as given by the court, written out in full in the instructions, To require the jury to resort to the pleadings in the case, to patch up and piece out the instructions, is calculated to confuse and mislead them. In many cases the pleading set out the cause of action and the defense thereto with such prolixity that it would be exceedingly difficult for the jury, by reference to them to extract therefrom the allegations sought to be incorporated in the instructions; in fact, cases arise where one learned in the law would, have much difficulty in so doing. It is manifest that in such cases instructions so drawn, would be most prejudicial to rights of the opposite party."

The third instruction granted by the learned court below at the request of the appellee is, we submit, misleading and fatally erroneous. The appellee's action is not pitched upon the theory that appellant furnished him with an unsafe place in which to perform his work, but upon the theory that his injury was proximately caused by a negligent failure of appellee to guard certain machinery with which the appellee was employed to work. As the court will please observe, in this instruction the court announces the abstract principle that the employer is required to furnish the employee with a reasonably safe place in which to work, and then departing from the announcement of abstract law, the learned court proceeds to instruct the jury to find for the appellee if the jury believe that the appellee's injury was proximately caused by a negligent exposure of the cog wheels. The instruction, asserting an abstract proposition of law upon which the action itself is not based, is misleading and erroneous especially as it is drawn. New Orleans & Northeastern Railroad Company v. Dorsey Williams, 96 Miss. 375, 53 So. 691; George W. Fairfield v. Louisville & Nashville Railroad Company, 94 Miss. 887, 48 So. 513; McLeod Lumber Company v. Anderson Mercantile Company, 105 Miss. 498, 62 So. 274. An instruction must follow the theory of the action.

We submit to the court this instruction, as granted, is altogether confusing and misleading, and that for the prejudice necessarily caused appellant by its being given the jury, the judgment appealed from should be reversed. The fourth instruction given to the jury by the learned trial court at the request of the appellee appears upon page 165 of the transcript of the record. It is earnestly submitted by the appellant that the giving of this instruction constituted gravely material error, and substantially prejudiced the appellant's right to a trial of the cause according to the law of Mississippi.

As the court will note from its perusal of this instruction, the trial court therein tells the jury that "it is the sworn duty of the jury." (Throughout, the instruction granted for the appellee hold before the juror's eyes an implied threat of everlasting punishment as a penalty for returning any verdict for the appellant.) If the jury should believe from the evidence that Ollie Jones, the lever operator, was deaf, and did not hear the appellee call out when involved in the gears on account of his deafness, and that the said Ollie Jones, because of said deafness, was not a competent employee to operate the lever, and that the appellant knew of his incompetence, or "by the exercise of the care and caution required of it," should have known of his incompetence; and that the accident was due in whole or in part to the incompetence of said lever operator. That was all.

The instruction entirely eliminates...