City of Tupelo v. Payne

• Decision Date: 25 May 1936
• Docket Number: 32243
• Citation: 176 Miss. 245,168 So. 283
• Court: Mississippi Supreme Court
• Parties: CITY OF TUPELO v. PAYNE

168 So. 283

176 Miss. 245

CITY OF TUPELO v. PAYNE

No. 32243

Supreme Court of Mississippi

May 25, 1936

Division A

Suggestion Of Error Overruled September 21, 1936.

APPEAL from circuit court of Lee county HON. THOS. H. JOHNSTON Judge.

Action by L. M. Payne against the City of Tupelo. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Blair & Anderson, of Tupelo, for appellant.

It is the contention of appellant that in view of the fact that appellee was injured in a building that was being constructed and its dangers and hazards constantly changing, the rule that the master was required to provide a reasonably safe place to work for the servants did not apply.

Bolton, for the City of Tupelo, had charge of Payne and other laborers. R. C. Mabry was foreman of the carpenters in the swimming pool building. He did not know that the joist or studding was in a dangerous condition nor did Merritt know it.

N. O. & N. E. R. R. Co. v. Williams, 96 Miss. 373, 53 So. 619.

The true rule is that the master is not required to furnish a safe place to work where the prosecution of the work itself makes the place and creates a danger.

International Ship Bldg. Co. v. Carter, 121 Miss. 103, 83 So. 413; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503.

It seems to be practically a universal rule that where a servant is employed in work of such nature that its progress is constantly changing conditions as risks increase or diminution of safety as hazards, then the rule requiring the master to use ordinary care to provide a safe place for his servants' work is not applicable.

3 Labatt on Master and Servant, sec. 1176, p. 3140; Armour v. Hahn, 111 U.S. 313; Lumber Co. v. Mills, 135 Miss. 146; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615; Citeron v. O'Rouke Co., 188 N.Y. 339, 80 N.E. 1092; Walters v. Summerfield, 160 Iowa 127, 140 N.W. 388; Meehan v. St. Louis R. R. Co., 114 Mo.App. 396; Lassasso v. Jones Co., 88 Vt. 526, 93 A. 266; Shields v. Bergendahl Co., 187 Ill.App. 5; Horton v. Hartley, 170 S.W. 1046; Callen v. Bull, 113 Cal. 593, 45 P. 1017; Miller v. Moran Co., 39 Wash. 631, 81 P. 1080.

Appellee's last instruction omitted the qualification that the employer was required to use only reasonable care to furnish a reasonably safe place to work.

The first instruction granted appellee omitted the qualification that the city of Tupelo was required to use only reasonable care to furnish a reasonably safe place to work.

McComb Box Co. v. Duck, 164 So. 406.

Noel Monaghan, of Tupelo, for appellee.

It appears plain to us that the appellee, Payne, was not in the position of being a regular carpenter, or a man working in the building, and that the city of Tupelo, the appellant, was liable to him unless it furnished him a reasonably safe place to work, or exercised due and ordinary care to see that the place was a safe place in which to work, and this we think they failed to do for the reason that the accident happened as it did.

N. O. & N. E. R. R. Co. v. Williams, 96 Miss. 373, 53 So. 619.

In the present case, we think it was certainly the duty of the city of Tupelo to exercise reasonable and ordinary care to see that Payne was furnished a safe place in which to work, and this we submit they failed to do.

Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191, 17 So. 214; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Benton v. Finkbine Lbr. Co., 118 Miss. 558, 79 So. 346; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Belzoni Hardwood Lbr. Co. v. Langford, 127 Miss. 234, 89 So. 919; Y. & M. V. R. R. Co. v. Smith, 117 So. 339; Patrick Lucey v. Stock-Gibbs Lbr. Co., 23 Idaho 628, 131 P. 897, 46 L. R. A. (N. S.) 86.

This case is entirely different from the case of McComb Box Company v. Duck, 164 So. 406, for the reason that in that case the evidence was strongly conflicting, on the issue of liability, whereas, in this case, there is no conflicting evidence whatsoever.

OPINION

McGowen, J.

This is an appeal from a judgment of the circuit court of Lee county in which the appellee, L. M. Payne, procured judgment for one thousand five hundred dollars against the city of Tupelo for alleged personal injuries.

On May 18, 1935, the city of Tupelo was engaged in constructing a swimming pool and three-room building which contained lockers, toilets, and dressing rooms. This building consisted of one room to the north, one in the middle, and one on the south side. At the time that appellee was injured, the building in question was being constructed by carpenters, cement workers, plumbers, and electricians. Payne described himself as a "roustabout," and performed any work assigned to him by the foreman; he helped dig ditches, assisted the carpenters by handing them lumber and by moving lumber from point to point in the house that was being constructed. He was a direct employee of the ERA, a government agency, which had instructed him to report to Bolton, a foreman of the city of Tupelo, for work under his orders. On the day appellee was injured, the partition wall between the north and the middle room had not been constructed, but the studding had been put in place by the carpenters. Lumber was stacked on the south side of the north room against these studdings, and Payne was ordered by his foreman to go in and assist in removing this lumber, so that the carpenters could complete their work. About an hour before the appellee began this particular work of removing the lumber, one of the carpenters had knocked one of the studdings loose at the top so that he could complete ceiling this room; the joist or studding did not fall, evidently being supported by the stack of lumber against it. When the carpenter finished the ceiling, he went to another part of the building, where he continued his work.

After Payne, assisted by another employee, had removed a part of the lumber, this studding that had been knocked loose at the top fell and injured appellee's head to some extent, and one of his hands rather severely. Payne was directed by a different foreman than the one immediately in charge of the carpentry work. The injury occurred while Payne was assisting the carpenters and others in the construction of a new building.

By his declaration and evidence the appellee sought to recover upon the principle of law that it is the nondelegable duty of a master to exercise reasonable care to furnish the servant a reasonably safe place in which to work. At the conclusion of all the evidence, the appellant requested a peremptory instruction, which was refused by the court.

Of the assignments of error here argued we will consider only one--the refusal of the peremptory instruction. In his effort to bring the case within the rule of a safe place to work, the appellee argues that, because he was not a carpenter and because he...