Cobb Bros. Const. Co., Inc. v. Campbell

• Decision Date: 02 November 1934
• Docket Number: 32312
• Citation: 176 Miss. 695,170 So. 283
• Court: Mississippi Supreme Court
• Parties: COBB BROS. CONST. Co., INC., v. CAMPBELL

170 So. 283

176 Miss. 695

COBB BROS. CONST. Co., INC., v. CAMPBELL

No. 32312

Supreme Court of Mississippi

November 2, 1934

Division A

Suggestion Of Error Overruled November 30, 1936.

APPEAL from circuit court of Lamar County, HON. HARVEY MCGEHEE Judge.

Action by C. L. Campbell against Cobb Brothers Construction Company Incorporated. From a judgment for plaintiff, defendant appeals. Reversed, and judgment for defendant.

Reversed, and judgment here for appellant.

Davis & Davis, of Purvis, for appellant.

The charge of compulsion was not established by the testimony so that the case then rests upon whether or not there was negligence on the part of appellant in not furnishing additional help and more than two men to lift a ninety-eight pound sack of cement across a shallow ditch and over a five inch rail and on to the embankment beyond.

G. & M. V. R. R. Co. v. Nutt, 120 Miss. 93, 81 So. 642; Truly v. J. E. North Lbr. Co., 83 Miss. 430, 36 So. 4.

The rule is well settled that a man is the best judge of his own strength and ability to do the work assigned by the master to be performed.

39 C. J. 800, par. 1005; Knorpp v. Wagner, 93 S.W. 961; International Cotton Mills v. Webb, 96 S.E. 16; Stenvog v. Minnesota Transfer Co., 108 Minn. 199, 121 N.W. 903, 25 L. R. A. (N. S.) 362, 17 Ann. Cas. 240.

In the case at bar the master, through the foreman, directed the appellee to take the wheelbarrow and get the cement and bring it to the mixing box. He gave no direction to him as to how he should do it but, according to appellee's own testimony, all he said was, you do what I ordered you to do or get off of the job. Appellee testified that the foreman was not present at the railroad crossing. That he, the appellee, could have taken off the cement sack by sack and carried it across. That he could have required his co-laborer to have taken one end of it and he the other and carried it across, all of which could have been done in perfect safety. This, however, he did not do. He chose to carry the wheelbarrow and cement across in the manner described, that is by appellee taking the wheel of the wheelbarrow and his co-laborer the handles and lifting it over the ditch and the railroad track. In performing his duties in the way thus selected by him, he claims to have received his injury by over-lifting and straining himself.

It is a well settled rule that where an employee is ordered to perform certain work but is not given any direction as to the manner of performing it, and he is injured because he chooses a dangerous manner of executing the order, although there is a way to execute the order without any danger to himself, he assumes the risk incident to the work.

Southern R. R. Co. v. Logan, 138 F. 725; Jenney Electric Light Co. v. Murphy, 115 Ind. 566, 18 N.E. 30; Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231.

E. F. Coleman, of Purvis, for appellee.

The case at bar rests upon the proposition that appellee was compelled to do what he did do in order to hold his job; that is, the appellee in lifting the wheelbarrow across the railroad track, heavily loaded as it was, was done under orders of the foreman coupled with the threat that if he did not do as he was directed to get off the job and go home, meaning that he would lose his job.

It is a well settled proposition of law in this state that it is the duty of the master to furnish and maintain a sufficient number of men to do the work assigned. And that where the work is of such a nature as to require men to do the work then the men engaged in the work are classed in the same category as appliances and the master owes the duty to furnish a sufficient number of men to do the work.

Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 167 Miss. 246, 148 So. 237.

Where the master employs servants to act in concert in the performance of their duty, it is the non-delegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; if the master fails to do so, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury.

Natural Gas Engineering Corp. v. Bazor, 137 So. 788.

It is also a well settled proposition of law in this state that where the master commands the servant to do work, coupled with the warning that if he does not do it he will be discharged, obedience by the servant is not voluntary, it is compulsory, and the overexertion causing the injury is compulsory overexertion. A servant is not free to act when disobedience to his master means the loss of his job.

Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792; Jefferson v. Denkmann Lbr. Co., 167 Miss. 152, 148 So. 237.

It is a well settled principle of law in this state that an employee shall not be held to have assumed the risk of his employment where injury or death results in whole or in part from the negligence of the master.

Gulf & Ship Island R. R. Co. v. Bryant, 147 Miss. 421, 112 So. 451; Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 167 Miss. 152, 148 So. 237; 39 C. J., pages 523, 525, para. 629; 18 R. C. L. 601, para. 101.

It is a well established rule of law in this state that where evidence is conflicting on an issue, it is proper to submit it to the jury for its decision.

Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811; Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Newton v. Homochitto Lbr. Co., 162 Miss. 20.

It is also well settled in this state that where there is substantial evidence tending to establish the plaintiff's case, verdict may not be directed for the defendant.

Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Newton v. Homochitto Lbr. Co., 162 Miss. 20; Hutchinson v. Gaston, 128 Miss. 487, 91 So. 193; L. & N. R. R. Co. v. Jones, 134 Miss. 58, 98 So. 230; Gunter v. Y. & M. V. R. R. Co., 145 Miss. 475, 111 So. 105.

This court has repeatedly held that a verdict of the jury based upon conflicting evidence is conclusive.

Thompson v. Poe, 104 Miss. 586, 61 So. 656; W. O. W. v. McDonald, 109 Miss. 167, 68 So. 74; Mardis v. Y. & M. V. R. Co., 115 Miss. 734, 76 So. 640; Estes v. Jones, 119 Miss. 142, 80 So. 526; Williams Yellow Pine Co. v. Henley, 155 Miss. 893; Miss. Central R. R. Co. v. Roberts, 173 Miss. 487.

Argued orally by T. W. Davis, Sr., for appellant, and by E. F. Coleman, for appellee.

OPINION

Smith, C. J.

The appellee recovered a judgment in the court below against the appellant for an injury to his person alleged to have been caused by the appellant's negligence. One of the assignments of error challenges the overruling of the appellant's request for a directed verdict.

Highway No. 11 crosses the New Orleans & Northeastern Railroad track. The highway was being depressed so as to pass under the railroad track and was also being paved, the work being done by the appellant. The appellee was one of its employees. Cement used in this construction work was stored a short distance from the mixer, but the railroad track passed between the two places. The declaration contains two counts with only one of which we are here concerned, and which alleges that the appellant was negligent in failing to furnish a sufficient number of persons to do the work in which the appellee was engaged. The declaration alleges that "the defendant had in its employ a foreman by...