Central Lumber Co. v. Porter

• Decision Date: 20 April 1925
• Docket Number: 24708
• Citation: 139 Miss. 66,103 So. 506
• Court: Mississippi Supreme Court
• Parties: CENTRAL LUMBER CO. v. PORTER. [*]

103 So. 506

139 Miss. 66

CENTRAL LUMBER CO. v. PORTER. ^[*]

No. 24708

Supreme Court of Mississippi

April 20, 1925

Division B

1. MASTER AND SERVANT. Master held liable for injuries to servant byunsafe team.

In a suit for damages for personal injuries, inflicted by the defendant furnishing to plaintiff unsafe and dangerous teams with which to perform the work, evidence showing that the animal furnished was unsafe and dangerous for the work for which it was used, and that the master had been requested to furnish other teams, and was notified of the dangerous character of the teams furnished, and failed to furnish safe teams, and personal injuries resulted from the use of the unsafe animal in the performance of the work, the master is liable.

2. MASTER AND SERVANT. Servant continuing to use unsafe teams at master's request does not assume risk.

In said case it is the duty of the master to furnish the servant with teams reasonably safe for the purpose intended, and, where the master negligently fails to perform this duty, the servant does not asume the risk of his employment if he continues to use such teams at the request of the master.

3 EVIDENCE. Refusal to permit physician testifying for plaintiff to be cross-examined as to ill will toward defendant held error.

In a case for personal injury, where the character and extent of the injury was a material subject of inquiry, and a physician, who was a witness for the plaintiff, was introduced and testified to injuries of serious character, it was error to refuse the defendant the privilege of asking such physician, on cross-examination, if he did not have ill will towards defendant, and if he had not been discharged from a position with the defendant and had applied for reinstatement and been refused, and if he had not filed a personal suit against the defendant, which questions the court refused to have answered on objection by the plaintiff; it was error, as such testimony would tend to show that the witness was not fair and unbiased.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Lincoln county, HON. E. J. SIMMONS Judge.

Action by D. T. Porter against the Central Lumber Company. From judgment for plaintiff, defendant appeals. Affirmed in part and reversed and remanded in part.

Judgment affirmed in part; reversed and remanded in part.

Brady & Dean, for appellant.

I.

NEGLIGENCE CANNOT BE PREDICATED ON THE CHARACTER OF WORK ANIMALS, SHORT OF VICIOUSNESS. Appellant submits that a wholly abstract principle which places work animals in a class with machinery and places of work is a wholly unsound principle.

The principle so criticized is widely different from that which announces that the owner of tamed or wild animals kept in captivity shall be responsible for all damage caused by such animals, either from improperly confining them or from their escape, and which holds liable the owners of vicious dogs, stallions, bulls, and animals which do not come in the class of either work animals or wild animals. In the first, inherent propensities, in the other innate characteristics, set them apart in one class, designated as vicious. This would include animals neither naturally wild nor normally vicious, which might develop or manifest vicious traits, as a dangerous dog or fighting horse or goring cow. If any analogy lies between work animals and instrumentalities, then such animals would come in the class of "simple tools." This court has passed on no case similar to this, and we respectfully submit that in this case the principle applicable is the statement which we have phrased above.

II.

APPELLEE WAS FURNISHED A REASONABLY SAFE TEAM. Other courts have placed work animals in the class of "instrumentalities." Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Cowan v. Hydraulic Press Brick Co., 222 S.W. Mo.) 924; Miller v. Blood, 112 N.E. (N. Y.) 382. If Mississippi follows this principle, then the facts here show that appellant has come well within it, and under the authority of A. & V. Ry. v. White, 106 Miss 141, 63 So. 345, the peremptory instruction should have been granted.

III.

EVEN IF IT WERE THOUGHT THAT THE "OFF LEAD" OX WAS UNSATISFACTORY, THERE WAS NEVER A REFUSAL TO REPLACE HIM, BUT A PROMISE TO INVESTIGATE, WHICH PROMISE HAD NOT BEEN BREACHED AT THE TIME OF THE ACCIDENT. It is perfectly apparent that appellee's claim that he was denied the use of a satisfactory team and was forced to use the unsuitable team was but a feeble attempt to twist facts to meet legal necessities.

IV.

EVEN IF HE DEEMED THE "OFF LEAD" OX UNSUITABLE, APPELLEE, IN CONTINUING TO WORK HIM, ASSUMED ALL RISK OF WHAT MIGHT HAPPEN TO HIMSELF. If appellee considered that there was danger in using the off lead ox under such circumstances, then his act in doing so was a deliberate assumption of responsibility, whose consequences he cannot now escape. The superior training and knowledge of this foreman cannot be separated from any question of liability here. This principle was recognized in the case of Cowan v. Hydraulic Press Brick Co., 222 S.W. 924.

Appellee was, as set forth in the statement of facts, a man of mature years, with an experience of twenty-five years behind him, an intelligent man, an ambitious man studying books in connection with his particular work. In continuing to use the team of oxen containing the "fractious" ox under the circumstances shown in this record, he did so with full knowledge and full assumption of all risk incident thereto, and is, therefore, denied recovery for the injury complained of. See Arthur v. Merchants Ice & Cold Storage Co., 161 P. 121; Cooper v. Portner Brewing Co., 38 S.E. 91; Arthardt v. Consolidated Coal Co., 165 Ill.App. 504; Bowles v. Indiana R. Co., 62 N.E. 94; Milbu & D. Coal & Miling Co. v. Balla, 104 S.W. (Ind. Terr.) 860; East Jellico Coal Co. v. Steward, 68 S.W. 624. See also: Haneman v. Western Meat Co., 97 P. 695; Hoover v. Empire Coal Co., 149 Ill.App. 258; Gola v. Mo., etc., Coal Co., 180 Ill.App. 96; Johnson v. Wasson Coal Co., 173 Ill.App. 414; Douglass v. Scandia Coal Co., 141 N.W. 960; Green River Coal & Coke Co. v. Phaup, 121 S.W. 651; Wooster v. Bliss, 35 N.Y.S. 514; McGovern v. Fitzpatrick, 131 N.Y.S. 1048; Green & C. Street Pass. R. Co. v. Bresmer, 97 P. 103; Shaw v. Deal, 7 P. Co. Ct. 378; Eshner v. Mineral R. & Min. Co., 28 Pa. S.Ct. 387; Armington v. Providence Ice Co., 82 A. (R. I.) 263; Levesquie v. Janson, 42 N.E. 335.

Furthermore, it appears from Daniel Williams' testimony that appellee deliberately assumed further risk, in that he seized a root, stock or other weapon, and jumped down in front of the oxen, thereby taking the risk of being struck by the plow exactly as he was struck.

V.

The INJURY WAS NOT CAUSED BY THE TENDENCY THE LEAD Ox IS SHOWN TO HAVE POSSESSED. The team at the time appellee was injured was not running away, it was not out of control. John Culver would not admit that it was running at all. It was moving quickly, but the lead ox at the time had hearkened to the voice of his driver and was moving obediently to it.

VI.

The COURT ERRED IN SUSTAINING OBJECTIONS BY APPELLEE TO TESTIMONY OFFERED BY APPELLANT AS TO BIAS OF DR. D. P. BUTLER. Appellant was entitled under section 1923 of the Code of 1906, section 1583, Hemingway's Code, to examine him touching his interest in the case, and his prejudice against appellant company is such an interest as the statute contemplates. See I. C. R. R. Co. v. Haynes, 64 Miss. 604, 1 So. 765; Mackmasters v. State, 81 Miss. 374, 33 So. 2; Newcomb v. State, 37 Miss. 383; McClelland v. State, 54 So. 251; Magness v. State, 106 Miss. 195, 63 So. 352.

J. W. Cassedy and Naul & Yawn, for appellee.

Appellant alleges that the trial court should have given the peremptory instruction asked for, First: Because negligence cannot be predicated of the character of work animals short of viciousness. There is no reason why the law should not apply to animals as well as any other instrumentality. Under the law the master is bound to provide his employees with reasonably safe tools, appliances, machinery and a place in which to work and if a team is unsafe or any portion of the team makes the appliance unsafe and dangerous, whether any animal in the team was vicious or not would certainly make no difference for the reason it is the duty of the company under the law to provide its employees reasonably safe instrumentalities and a reasonably safe place in which to work, regardless of whether or not it is an animal or some other instrumentality. The cases cited by the appellant declares against the rule here invoked. Miller v. Blood, 112 N.E. (N. Y.), 383-84.

Second: Because the plaintiff was furnished a reasonably safe team we submit that the plaintiff testified that the team was unsafe, working in the place where they were, and he notified the general superintendent of the company that this team was dangerous. A number of other witnesses testified that the lead ox was fiery and liable to run around at any time when around or surrounded by several persons.

We contend this makes no difference for the reason the master is required under the law to furnish its employees reasonably safe appliances and is liable for damages if they knew or could have known by reasonable care, and the attention of the superintendent and the foreman of the team was called to the unsafe team, and the superintendent promised and agreed that he would inquire into the matter, and the foreman of the team told the plaintiff, appellee here, that he had no other team to put in the place of the one complained of.

"Even if he deemed the off lead ox unsuitable, appellee in continuing to work him, assumed all risk, of what might happen to him." In reply to this, section 504 of...