Eagle Cotton Oil Co. v. Sollie

• Citation: 185 Miss. 475,187 So. 506
• Decision Date: 27 March 1939
• Docket Number: 33630
• Court: United States State Supreme Court of Mississippi
• Parties: EAGLE COTTON OIL CO. v. SOLLIE

187 So. 506

185 Miss. 475

EAGLE COTTON OIL CO. v. SOLLIE

No. 33630

Supreme Court of Mississippi, Division B

March 27, 1939

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY Judge.

Action by Floyd D. Sollie against the Eagle Cotton Oil Company for injury allegedly caused by failure to furnish safe instrumentality for work. From a judgment on a verdict for plaintiff, defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Jacobson & Snow, of Meridian, for appellant.

Appellant was not negligent in furnishing the kind of appliance involved in this accident. It was the kind of appliance used generally by those operating the same character of mill and business as appellant was engaged in.

Master furnishing equipment in general use by the business of same kind under similar conditions is not negligent, though other equipment might be safer.

Vehicles Woodstock Co. v. Bowles, 128 So. 99, 158 Miss. 346; Hatter v. I. C. R. R., 69 Miss. 642, 13 So. 827; Kent v. Y. & M. V. Ry. Co., 77 Miss. 499, 27 So 620, 78 A. S. R. 534; Jones v. Y. & M. V. Ry. Co., 90 Miss. 547, 43 So. 813; Hammontree v. Cobb Construction Co., 152 So. 279, 168 Miss. 844; Newell Construction Co. v. Flynt, 161 So. 298, 172 Miss. 719; Daniel v Jackson Infirmary, 163 So. 387, 173 Miss. 821.

It has been consistently held by this court that the employer or master is not an insurer of the safety of his employee, and that where the employee seeking recovery does not show negligence on the part of the master proximately causing an injury complained of, no recovery can be had.

Dr Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392; Meridian Grain & Elevator Co. v. Jones, 169 So. 771, 176 Miss. 764.

The employer use reasonable care to furnish his employees a reasonably safe place in which to work, and the employee must use reasonable care for his own safety.

Meridian Grain & Elevator Co. v. Jones, 169 So. 771, 176. Miss. 764; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65, 178 Miss. 791; Brown v. Coley, 152 So. 61, 168 Miss. 778; Gulf State Creosoting Co. v. White, 157 So. 86, 171 Miss. 127.

Master need not furnish newest, best and safest machinery or appliances and place for work, but need only furnish such as are reasonably safe.

Vehicles Woodstock Co. v. Bowles, 158 Miss. 346; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; C. & G. R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Kent v. Y. & M. V. R. R., 27 So. 620, 77 Miss. 494, 78 A. S. R. 534; Seifferman v. Leach, 138 So. 563, 161 Miss. 853.

Duty of master to furnish employee with reasonably safe tool does not require inspection and examination of tool before each separate operation of particular tool.

Gulf States Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; Hope v. Natchez C. & M. R. Co., 54 So. 369, 98 Miss. 822; A. & V. R. R. v. White, 63 So. 345, 106 Miss. 141; City of Tupelo v. Payne, 168 So. 283, 176 Miss. 245.

Employee must show that employer had either actual or constructive notice of unsafe place causing injury.

G. M. & N. v. Brown, 108 So. 503, 143 Miss. 890; M. C. R. R. Co. v. Bennett, 71 So. 310, 111 Miss. 163; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392.

Where master had furnished suitable place for work, suitable equipment, and reasonably safe appliances, then if servant is mature and experienced in character of work being done, obligation to take care of himself as to all obvious dangers is on servant, and duty of master exists only as to non-obvious dangers.

Brown v. Coley, 152 So. 61; Martin v. Beck, 171 So. 14, 177 Miss. 303; Favre v. L. & N. Ry., 178 So. 327; Cobb Bros. Construction Co. v. Campbell, 170 So. 283, 176 Miss. 695; Anderson-Tully Co. v. Goodin, 163 So. 536, 174 Miss. 162.

There can be no doubt Sollie assented to and agreed to keep his eyes open and fix, or have fixed, whatever defects developed. He was the man employed to make repairs. The nailing on of strips was his job, the job of a carpenter or millwright. Mr. Morrison was interested in keeping the mill in ship-shape order, and in seeing that defects were repaired immediately. He knew Sollie was the repair man, so he went to him direct and as Sollie says, on as many as four occasions prior to the accident, told him to be on the watchout for defects. He had these instructions and respected Mr. Morrison's authority. Sollie continued his employment and continued to work as millwright and as carpenter under those instructions. He was doing that character of work when injured, and was doing that work after having been instructed by Mr. Morrison to keep a watchout for defects. These instructions could have meant no more than that Sollie was charged with the duty of watching the machinery and the plant generally with a view to keeping up with whatever defects might develop and repairing them. By stating he respected Mr. Morrison's authority he could have meant nothing, unless he meant as long as he remained in the company's employ he agreed to do whatever Mr. Morrison had instructed him to do.

Hooks v. Mills, 57 So. 545, 101 Miss. 91; E. L. Bruce Co. v. Brogan, 166 So. 350, 175 Miss. 208; Edward Hines Lbr. Co. v. Dickinson, 125 So. 92, 155 Miss. 674; Texas Co. v. Mills, 156 So. 866, 171 Miss. 231; Hegwood v. J. J. Newman Lbr. Co., 132 Miss 487, 96 So. 695; Watermann-Fauke Lbr. Co., v. Miles, 99 So. 759, 135 Miss. 146.

We earnestly insist this is a case where the court should have granted the motion for a directed verdict, and should have granted an instruction to the jury to find for the defendant, and that since the trial court failed to direct a verdict this court will reverse this case and render judgment in favor of the appellant.

Reily & Parker, of Meridian, for appellee.

If the evidence favorable to the plaintiff, accepted as true, makes out a case, the question should be submitted to the jury.

Anderson v. Cumberland Tel. Co., 38 So. 786.

In determinnig what is and what is not negligence, in cases of this kind the jury is usually the judge.

Collins Baking Co. v. Wicker, 142 So. 8.

The dangers incident to ladders and lever power, depends upon the general knowledge and experience of men, and therefore, it is the jury that must decide as to negligence or no negligence. This rule is further extended so as to apply to those cases where reasonable minds might differ as to whether or not the proven facts show negligence.

Evans v. Brown, 106 So. 281; Y. & M. V. R. R. Co. v. Williams, 74 So. 835; Hercules Powder Co. v. Williamson, 110 So. 244.

It is only when the appellant is in position to contend that reasonable impartial men could not differ as to whether or not proper care had been used, that the defendant is entitled to a directed verdict. And under the testimony in this record, the appellant is not in position to defend such position.

City of Greenville v. Laury, 159 So. 121.

The trial judge should direct a verdict in favor of the defendant only when no inference of negligence can justly be drawn from the testimony, and the facts in this case not only justified the jury in finding that the ladder in question was dangerous and calculated to cause injury, but there were competent witnesses who testified positively that such was the case. It must be accepted as true that the cleat on this ladder was in fact insecure and unsafe and did break because of such unsafe condition. There was competent witnesses who testified that the manner of construction was unsafe and sure, in the course of time, to pull loose and be calculated to cause the exact injury sustained by the appellee. And if there is a dangerous condition which should be anticipated and corrected by the exercise of reasonable care, then a failure to exercise such care is negligence, rendering the master liable in damages for any injury proximately resulting therefrom.

City of Greenville v. Laury, 159 So. 121; C. T. & T. Co. v. Woodham, 54 So. 890.

If the danger involved in this action could have been reasonably anticipated as likely to happen, then it was the duty of the appellant to take measures to correct such condition. And the testimony in this case shows that this danger was sure to happen if the ladder was continued in use, the only feature that was uncertain was when the injury would be received.

Hamilton Bros. v. Narciese, 158 So. 467; Gulf Refining Co. v. Williams, 185 So. 234; Ness Creameries v. Barthes, 155 So. 222.

We are unable to see how it could be held that the testimony in this case does not show that the ladder in question, due to the manner of its construction and the use to which it was put, would develop into an unsafe condition, and did become unsafe and was thereby caused to become detached and injure the appellee, and that this condition could have been and should have been anticipated by the appellant and avoided by the exercise of ordinary care. On the testimony in this record, the trial judge was not in error when he refused to direct a verdict for the appellant based upon the contention that no negligence was shown.

But it is contended that the appellant is not chargeable with negligence because this character of ladder was in common use by other mills engaged in a similar business. We deny that this principle of law has any application to the facts in this case, if the facts were undisputed; but the facts in this case would not support this contention if it was a proper case for its application.

Jefferson v. Dinkmann Lbr. Co., 148 So. 237; Eagle Cotton Oil Co. v. Pickett, 166 So. 764; Cotton Mills Product Co. v. Oliver, 121 So. 111.

If the appellant was guilty of negligence in not using ordinary care to avoid a danger that could and would have been...