Charles Weaver & Co. v. Harding

• Decision Date: 02 May 1938
• Docket Number: 33188
• Citation: 180 So. 825,182 Miss. 345
• Parties: CHARLES WEAVER & Co. v. HARDING
• Court: Mississippi Supreme Court

180 So. 825

182 Miss. 345

CHARLES WEAVER & Co. v. HARDING

No. 33188

Supreme Court of Mississippi

May 2, 1938

Division B

Suggestion Of Error Overruled June 13, 1938.

APPEAL from the circuit court, of Adams county, HON. R. E. BENNETT Judge.

Action by Dave Harding against Charles Weaver & Co. to recover for injury sustained when he was thrown from a truck in which he was riding. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and rendered.

Lotterhos & Travis and Vardaman S. Dunn, all of Jackson, for appellant.

Appellee fails to make a case under count one of his declaration. The fellow servant rule applies with respect to appellee and the driver of appellant's truck, from which it follows that the negligence, if any, of the driver is not attributable to appellant.

Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So 787; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279.

Appellee fails to make a case under the second count of his declaration. Most of the charges of negligence in the second count of appellee's declaration may be effectually eliminated at the very outset, for the reason that the facts alleged to support same have no foundation in the record whatsoever. There is no evidence to show that appellee was standing at the time of the accident, but the testimony is uncontradicted that he was, in fact, seated. There is no evidence to show that appellee was caused to trip over the tools and implements stated to be present in the truck body. There is no evidence to show that the truck was equipped with a cab, preventing plaintiff from observing the curves in the road.

We respectfully submit that appellee cannot sustain a recovery on the remaining charges of negligence against appellant for two reasons, namely: first, the facts fail to establish negligence, and, second, there is no casual connection between the alleged negligence of appellant and the accident in question.

The master is not an insurer, but the extent of his duty under the law is to exercise reasonable care to furnish his servant a reasonably safe place in which to work.

Hooks v. Mills, 101 Miss. 91, 57 So. 545; Anderson v. McGrew, 154 Miss. 295, 122 So. 492; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 165 So. 764; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Columbus & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Wilson & Co. v. Holmes, 177 So. 24.

The rule of reasonable care does not require the master to furnish his servant with the best available appliances with which, or places within which, to work, but his duty does not extend beyond reasonable care, as aforesaid.

Kent v. Y. & M. V. R. Co., 77 Miss. 494, 27 So. 620; Hatter v. Ill. Cent. R. R. Co., 69 Miss. 642, 13 So. 827; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229.

Nor does the rule of reasonable care require the master to adopt unreasonable or impracticable means or methods or those which at last will not be effective or, if effective, will be negligible in general results. The test is not danger, but negligence.

Hamontree v. Cobb Const. Co., 168 Miss. 884, 152 So. 279.

In determining what is reasonable care on the part of the master, it is proper to consider that he observes and follows the usual and customary method or system generally employed by prudent men engaged in the same business, and the rule is stated that where he follows such method or system he is not liable unless the unreasonable unsafeness therein is so evident that impracticable persons could not well be in disagreement upon the issue.

Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Hamontree v. Cobb Const. Co., 168 Miss. 884.

The master's duty ceases when he has exercised reasonable care to furnish the servant a reasonably safe place in which to work, and from this point the servant assumes the risk. This rule applies to the complaining servant as well as his fellow employees.

Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.

A wrongdoer is responsible for the consequences of his own wrongful act, but he is not responsible for what others, acting independently of him, and for themselves, did, even though his act may be the occasion of their act.

Bufkin v. Louisville & N. R. Co., 161 Miss. 594, 137 So. 517; Ozen v: Sperier, 150 Miss. 458, 117 So. 117.

The very most that can be said is that the testimony creates a mere suspicion, conjecture or possibility that negligence existed. But something more substantial than suspicion or conjecture of possibility is required to sustain a recovery in the case at bar. This court has so held in at least three recent cases.

New Orleans & N.E. R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Columbus & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

Engle & Laub, of Natchez, for appellant.

The evidence fails to disclose that appellant was guilty of any negligence proximately contributing to or causing the accident. The evidence conclusively establishes that appellant discharged his full duty to the appellee under the law.

Vehicle Woodstock Co. v. Bowles, 128 So. 98, 158 Miss. 342; Brown v. Coley, 152 So. 61; Columbus & G. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Wilson & Co., Inc. v. Holmes, 177 So. 24; Williams v. Lumkin, 169 Miss. 146, 152 So. 842.

The court having granted the peremptory to the first count should have granted the peremptory to the second count, each count, for all practical purposes, being a duplication of the other.

Buckley v. United Gas Public Service Co., 168 So. 462, 176 Miss. 282; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 784; Tallahala Lbr. Co. v. Holliman, 125 Miss. 308, 87 So. 661; Burch v. Southern Bell Telephone & Telegraph Co., 173 So. 300, 178 Miss. 407; Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. & M. V. R. R. v. Cornelius, 131 Miss. 37, 75 So. 90; Roland v. Morphis, 130 So. 906; Marx v. Berry, 168 So. 61; May v. Culpepper, 172 So. 336, 177 Miss. 811.

The appellant was under no obligation that made him an insurer to the extent that he insured the safe transportation of the appellee to and from work.

Oliver v. Miles, 110 So. 666, 144 Miss. 852; Lowenburg v. Cline, 125 Miss. 284, 87 So. 653.

Joseph E. Brown and Luther A. Whittington, both of Natchez, for appellee.

Admitted that the sides of the truck were 23 or 24 inches high, that still leaves the question for the jury under the facts and circumstances in this case as to whether that admitted height was reasonably sufficient to safeguard plaintiff and others riding in that truck from being spilled out and thrown over the sides of the truck in which they were riding. An accepted fact in this case, the fact accepted by the jury as to the happening of the injury to the plaintiff, was that when the truck was brought to a stop by reason of going into a ditch in undertaking to pass another truck at a point where the road was only fifteen feet wide, that three of the men in the truck were thrown out over the sides of this truck and terribly mangled and injured, two of them being killed, and the appellee having his back broken, while at the same time those who were in the truck were thrown about in the truck among the tools of the truck with the result that one received a broken hip, another a broken right arm, and another had his fingers cut off. This we respectfully submit is conclusive proof that the sides of the truck were not sufficiently high to reasonably safeguard those riding therein from being thrown out of the truck. Of the sixteen men in the truck three of them were thrown out and pitched out over the sides of the truck and three men were injured in the truck. It is admitted that the truck body was not equipped with guard rails, hand holders or other things to which appellee and others riding therein might have held on to prevent themselves from being thrown out of the truck.

The direct question as to whether the appellant was guilty of negligence in not providing appellee with a reasonably safe place in which to ride in the truck and a reasonably safe truck in which to be transported, having in mind the tools crowded therein, the number of men placed therein, the speed at which the truck was governed to operate, the character of highway and road over which it was being operated and the use thereof by the public, was squarely presented to the jury. Under the facts in this case that question which the court was in duty bound to submit to the jury and the jury after being thoroughly instructed on this question, and after being instructed over and again that in determining that question they could not take into consideration any negligence of the driver of the truck, the jury found against the contention of the appellant and in favor of the appellee; and the verdict of the jury, therefore, should be affirmed, because in Mississippi all cases of negligence ought to be resolved by the jury and not by the courts.

The preponderance of the evidence in this case is against the contention made by the appellant that the truck in which plaintiff was riding was struck by the Avery truck. The contention, therefore, that the proximate cause of plaintiff's injury was the striking of the truck in which he was riding by another truck must fail. Because the jury in this case definitely found against appellants' contention that plaintiff was injured because the truck in which he was riding was struck by the trailer of the Avery truck and that therefore the proximate cause of appellee's injury was this...