Cybur Lumber Co. v. Erkhart

Decision Date08 July 1917
Docket Number20170
Citation79 So. 235,118 Miss. 401
CourtMississippi Supreme Court

APPEAL from the circuit court of George county, HON. JAS. H NEVILLE, Judge.

Suit by Corbet Erkhart against the Cyburn Lumber Company and another. From a judgment for plaintiff, the named defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Gex &amp Waller and J. C. Henriques, for appellant.

We cite the following authorities in substantiation of our contention that the master is not required to guard against the dangers which necessarily arise in the progress of the work which is changing and shifting in its character or which are created by the workmen themselves in the prosecution of that work. Bennett v. Crystal Carbonated Lime Co., 124 S.W 608; Gunszfsky v. Peoples Gas L. & C. Co., 145 Ill. 255; Simpson v. So. Ry. Co., 69 S.E. 683; Askdraft v. Roberts & Schaeffer, 155 Ill.App. 88; Morgan v. Wabash R. Co., 158 Ill.App. 344; Mullin v. Genesee Electric Light Co., 95 N.E. 689; Nylund v. Duluth & N.W. Ry. Co., 143 N.W. 739; Lehy Cement Co. v. Bass, 103 N.E. 483, (Ind.); Sohold v. Warden Allen Co., 144 N.W. 650; St. Louis I. M. & S. Ry Co. v. Baker, 163 S.W. 152; Bertolami v. U. S. Engineering & Con. C., 105 N. Y. (S. P.) 90; Shields v. Bergendahl-Bass Eng. & Const. Co., 187 Ill.App. 5; Horton & Horton v. Hartley, 170 S.W. 1046 (Tex.); Losassova v. Jones Bros. Co., 93 Agl. 266 (Vermont); Utica Hydraulic Cement Co. v. Whalen, 117 Ill.App. 23; Bradley v. Chicago, etc., Ry. Co., 138 Mo. 293, 39 S.W. 763; Zeingmeyer v. Charles Goerta Lime & Cement Co., 88 S.W. 139, 133 Mo.App. 330; Mehan v. St. Louis, etc., R. R. Co., 90 S.W. 102, 114 Mo.App. 396; Livingston v. Saginaw Place Glass Co., 109 N.W. 431, 146 Mich. 236; Wolters v. Summerfield Co., 140 N.W. 388, (Iowa); Jacopac v. Newport Mining Co., 140 N.W. 1060, 153 Wis. 176; Pern v. Wussow, 129 N.W. 622, 146 Wis. 489; Knudsen v. LaCrosse, 130 N.W. 519, 145 Wis. 394; Heatley v. Fuller Co., 166 Ill.App. 85; Piepho v. Merchants L. & Tr. Co., 168 Ill.App. 511; Dunn v. Great Lakes Dredge & Dock Co., 126 S.W. 833; Langbrne v. Simongton, 66 So. 85; Whitson v. Am. Bridge Co. of N. Y., 166 S.W. 814; Lowrie v. Oxendine et al., 69 S.E. 131; Rumbley v. So. R. Co., 69 S.E. 416; Mercer v. Lloyd Transfer Co., 110 P. 389; Wallsend Coal & Coke Co. v. Shields, 167 S.W. 918; Dasher v. Hocking Mining Co., 212 F. 626; American Milling Co. v. Bell, 141 S.W. 1191; Edgar v. Brooklyn Heights R. Co. et al., 131 N.Y.S. 286; Caciapore v. Transit Const. Co., 132 N.Y.S. 572; Producers Oil Co. v. Bush, 155 S.W. 1032; Louis v. Gehlen, 122 N.Y.S. 89; Lantry Sharpe Cont. Co. v. McCracklin, 134 S.W. 363; Morgan Const. Co. v. Frank, 148 F. 964; Collingan v. City of N. Y., 140 N.Y.S. 271; Cully v. Northern Pac. Ry. Co., 77 P. 202.

Mize & Mize and O. Moss, for appellee.

The circuit court of appeals in reversing the judgment of Corbet Erkheart for five thousand dollars against the Cyburn Lumber Company (151 C. C. A. p. 601) held two things: 1. That the foreman Norman Clarke was as to his general duties a fellow-servant (Record, p. 18, copy opinion). We need not discuss that phase of the case for the purpose of this brief. 2. That, so far as the duty of the master to furnish Corbet Erkhert a reasonably safe place in which to work is concerned, Norman Clarke was a vice principal, yet on this particular occasion, even though he was a vice principal as to furnishing him with a reasonably safe place in which to work, Erkhert could not recover because he was furnished a reasonably safe place in which to begin work, and to use the language the court in said opinion, found at page 23 of record, adopting the doctrine of cited cases holding this, "where the master has used reasonable diligence to provide a reasonably safe place for the servant to perform his work, and in the prosecution of that work changes are produced in the conditions of the place where the servant is required to work and these conditions are in the performance of the work for which the servant is employed, and only temporary, the rule does not require the master to keep the place reasonably safe at all times under such changing conditions, and the rule has no application where the master does not make or create the conditions, but they are created by the progress of the work and the men engaged in it."

But this is not the doctrine of the Mississippi court and the record that the court had before it does not bear out the facts stated by the court on which this doctrine was announced.

In the case of Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, the court at page 301 uses the following language: "It was not only the duty of the appellant to furnish the appellee with a reasonably safe place in which to work when he started at his work, but this was a continuing duty. " Sante Fe R. R. Co. v. Holmes U. S. Sup. Ct., 50 Law Ed. 1094, 1097; Kreigh v. Westinghouse Church, Kerr & Co., U. S. S.Ct. 53 Law. Ed. 985; Annie Hough v. T. & P. R. R. Co., 100 U. S. S.Ct. 25 Law Ed. 615, the court at p. 616, left column; Fort v. Railroad, 110 Mass. 241, and 4 Thompson on Negligence, sec. 4926.

With the foregoing modification made by said agreement, the record is the same as in the circuit court of appeals. So the record in this court is that appellee, early on the morning of his injury went out into the woods from the skidder to tong logs; that, whenever he tonged a log the log was hauled into the skidder and tongs sent back out in the woods to appellee by what is known as a re-haul;" that, after he had been out in the woods a short time, this bay tree was pulled down by the foreman and Gibson and Barley, and fell along the guy line; that appellee, out in the woods, knew nothing of this tree being broken down as aforesaid, and when he came in to the skidder, several hours after the tree had been broken, he was ordered to help in taking down the skidder by the foreman and no notice was given him of the proximity of the broken tree to the guy line, an altogether different record from what the circuit court of appeals found the record to be, presenting clearly a question for the jury to determine whether or not it was negligence on the part of appellant to permit said broken tree to remain in the position it did for said length of time.

Now, even conceding that Clyde Gibson was a fellow-servant when he negligently ordered appellee to go to the guy line and give him more slack, yet if appellant was negligent in furnishing appellee a reasonably safe place in which to work which is, as shown heretofore, a continuing duty, the appellant would still be liable; for when the negligence of the master and the negligence of a fellow-servant combine to injure a servant, the master is still liable. Kreigh v. Westinghouse, Church, Kerr & Co., U. S. S.Ct. 53, Law Ed. 984.

The Comentez case cited by appellant was a case growing out of contract, on some notes, where judgment was joint and several and was an entirety and could not be reversed as to one without being reversed as to all. But this is not true in a case of joint tortfeasors, which is the case here.

We respectfully submit that this case should be affirmed.

STEVENS, J. ETHRIDGE, J. (dissenting).



Appellee, plaintiff in the court below, instituted this suit to recover damages for alleged personal injuries sustained by him while employed by appellant, the Cybur Lumber Company, a corporation owning and operating sawmills and a logging railroad. Plaintiff was employed as a log "tong" man, one of a crew engaged in operating a "ground" or "possum dog" skidder placed in the woods and used for the purpose of pulling logs from the forest and bunching the sawlogs in convenient places to be loaded upon wagons by the team crew and conveyed to the logging railroad.

At the time plaintiff was injured the crew consisted of Norman Clarke, the foreman of this particular crew, Clyde Gibson, G. T. Batley, and appellee, Erkhart. The skidder could be moved from place to place by means of cable and slides resting on the ground, and upon being put up was operated under its own steam, and a drum, around which there was a steel cable, would draw in the logs. There were tongs attached to the ends of the cable to be fastened around the logs, and it was the duty of plaintiff to apply the tongs to the log, and the flagman would thereupon signal the drum man, who would start the machinery and pull the log to its proper place. The cable ran through a pulley attached to a tree some fifteen or twenty feet from the ground, and to offset the strain upon the tree guy wires or lines were run to and attached to other trees some thirty or forty feet away. The skidder could draw in logs within a radius of nine hundred feet from all sides, and all the testimony tends to show that the logs being pulled in would encounter obstructions and that the operations were more or less dangerous.

On the occasion complained of plaintiff attached his cable to a log which lay on the "off side" of a small bay tree, and in pulling in this log the cable pulled against the bay tree and broke the trunk of the tree some ten feet from the ground, and the top of the bay tree thereupon fell over on the ground, but the trunk still rested upon the stump.

There is testimony tending to show that it was the duty of the plaintiff to assist in setting up and taking down the skidder as the operations changed from place to place; that on the day of the accident the crew foreman, Norman Clarke, directed that the apparatus be dismantled for the purpose of moving to another place. Batley and Gibson were engaged in unfastening the guy line that ran along near the broken bay tree; Batley undertaking to unfasten the guy line at the...

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