Eagle Cotton Oil Co. v. Pickett

• Decision Date: 30 March 1936
• Docket Number: 32015
• Citation: 175 Miss. 577,166 So. 764
• Court: Mississippi Supreme Court
• Parties: EAGLE COTTON OIL CO. v. PICKETT

166 So. 764

175 Miss. 577

EAGLE COTTON OIL CO. v. PICKETT

No. 32015

Supreme Court of Mississippi

March 30, 1936

Division A

1. MASTER AND SERVANT.

Whether employer used reasonable care in adopting method of performing work of preparing substance for fertilizer base and in providing safe place for employees to work for jury.

2. MASTER AND SERVANT.

Instruction that master had nondelegable duty before directing work to be done to see that place of work was in reasonably safe condition held erroneous as imposing absolute duty to provide reasonably safe place to work, while master is only required to exercise reasonable care to provide reasonably safe place to work.

3. TRIAL.

Instruction that employee did not assume risk of being injured as result of employer's negligence, consisting of failure to furnish reasonably safe place to work, failure to properly supervise the work, and employment of defective system of carrying on the work, held erroneous as assuming that master had employed defective system of doing work, and failed to furnish reasonably safe place to work.

4. MASTER AND SERVANT.

Instructions informing jury that one of primary duties of master was to prescribe reasonable and proper rules and regulations for performance of work and to properly supervise same held erroneous where evidence showed work was not complex and only uncertainty was as to when danger might arise.

5. MASTER AND SERVANT.

Master is required to promulgate rules governing performance of servant's duties only when, in addition to being dangerous, work of servant is complex and conditions which may arise are uncertain.

6 TRIAL.

Instruction that jury should find for injured employee if they believed that reasonably prudent person would have known that employee at time of injury was in perilous position, and that employee was unmindful for the moment of danger of his work, and that employer had not guarded against injury to employee except by previous warning, held erroneous as argumentative and making momentary forgetfulness basis of liability.

7. MASTER AND SERVANT.

Master is only required to exercise reasonable care for safety of servants, and when he has done so, he is not liable for injuries caused by momentary forgetfulness of ordinary hazards of employment.

8. MASTER AND SERVANT.

Instructions directing verdict for employee if jury should find that employer was guilty of any negligence which contributed to employee's injury held erroneous as permitting recovery based upon any negligence whether charged in declaration or not.

HON. A G. BUSBY, Judge.

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

Action by Morris Pickett against the Eagle Cotton Oil Company. From an adverse judgment, the defendant appeals. Reversed and remanded.

Reversed and remanded.

Gilbert & Cameron, of Meridian, for appellant.

It is elementary law that the employer is not an insurer of the safety of the employee and that the employer does not have to supervise the details of the work.

39 C. J. 451, footnote 58; Brown v. Coley, 168 Miss. 778, 152 So. 61.

The case at bar cannot be distinguished either on its facts or principles from the case of Buckeye Cotton Oil Co. v McMorris, 172 Miss. 99, 158 So 799.

39 C. J. 714, sec. 918, footnote 84; Christienson v. R. R. Co., 27 Utah 132, 101 A. S. R. 945; Dobbins v. Oil Co., 133 Miss. 248; Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 561; Hammontree v. Cobb, 168 Miss. 844, 152 So. 279; Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Lambert v. R. R. Co., 152 Miss. 450, 120 177; Lumber Co. v. Joh, 107 Miss. 43, 64 So. 934; Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Newell v. Flynt, 172 Miss. 719, 161 So. 298; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.

The work was being done in the method in general use, in fact could not have been done any other way.

Newell v. Flynt, 172 Miss. 719; Hammontree v. Cobb, 168 Miss. 844.

It must be a case of extra hazard, and where by the very nature of their work and of the situation in which they are placed, the workers cannot reasonably and fully take care of themselves that in respect to open and obvious danger an industry or work is to be loaded with expense and incumbrance of numerous watchmen or even with any watchman at all.

Lambert v. R. R. Co., 152 Miss. 450, 120 So. 177.

We earnestly submit that the court should have given a peremptory instruction for appellant and not having done so that this case should be reversed and judgment rendered here for the appellant.

An instruction granted the plaintiff required the defendant to see to it that the place was safe before the work was begun and that this was non-delegable, thus violating all the rules requiring only that the master use reasonable care in that regard, and then left it to the jury to determine whether it was negligence or not, and also peremptorily charged the jury that this was true no matter how long the system had been employed and eliminated the usual and customary methods in general use.

R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

Momentary forgetfulness does not create liability; it may in emergency excuse negligence. If this were not true then the ordinary hazards of employment would be converted into negligent hazards by the employee's state of mind.

39 C. J., page 736, sec. 934, page 839, sec. 1052.

The instructions for plaintiff and defendant were in hopeless conflict. No instruction for defendant cured the errors.

R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

Willimson & Clayton, of Meridian, for appellee.

If appellee was not entitled to a peremptory instruction and if the court committed error in granting any one or more of instructions requested by appellee, such error, if any, was harmless and was surely cured by the other fourteen instructions requested by appellee and given by the court.

Regarding the fact that the master was required to guard against injury that a reasonably prudent person could have foreseen as likely to occur and holding that officer exercising supervision of employee should have foreseen or reasonably anticipated the injury to servant, see Hamilton Bros. Co. v. Narciese, 158 So 467.

Section 513, Code of 1930; Cybur Lbr. Co. v. Erkhart, 79 So. 235.

Where an employee adopts a method of doing his work which involves risks and danger greater than the nature of the work called for, he should take correspondingly appropriate precautions to guard against the increased danger and risks. So, too, if a master directs a servant to do certain work in a manner not reasonably safe, and the performance of the work in the manner directed is the proximate cause of injury to the servant, the master is guilty of actionable negligence.

39 C. J. 453; Hardy v. Turner-Faber-Love Co., 101 So. 489; Edwards v. Haynes-Walker Lbr. Co., 74 So. 284; Murry v. Natchez Drug Co., 56 So. 330.

It is the duty of the master to furnish a servant a safe place to work free from pitfalls, holes and obstructions into which the servant is liable to fall while his mind is absorbed with the duties of his employment or during momentary forgetfulness of danger, and where a master fails to furnish a safe place to work and a servant, though knowing of the presence of holes, stepped into one, recovery cannot be defeated.

Sea Food Co. v. Alves, 77 So. 857; Randolph Lbr. Co. v. Minchew, 159 So. 849; Truly v. Lbr. Co., 36 So. 4; Yazoo & Co. v. Parker, 40 So. 746; Hercules Powder Co. v. Tryon, 124 So. 474; Raglin v. Native Lbr. Co., 78 So. 542; Lutenbacher v. Mitchell-Bourne Construction Co., 69 So. 888, 19 A. L. R. 206; Wilbe Lbr. Co. v. Calhoun, 140 So. 680.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit court of Lauderdale county awarding the appellee damages for personal injuries alleged to have been sustained by him as a result of the negligence of the appellant.

The declaration charged that the appellee was employed by the appellant to work at its fertilizer factory, and that on the occasion of his injury, he and other employees were engaged in breaking up and removing a large pile of material to be used in the manufacture of fertilizer, and which had been stored in a large bin or compartment in one of appellant's buildings. The negligence charged was (1) the failure of appellant to exercise reasonable care to furnish appellee a reasonably safe place to work; (2) the negligent failure of appellant to properly supervise the work and provide warnings of impending dangers connected therewith; (3) the negligent failure of appellant to adopt reasonable rules and regulations for carrying on the work; and (4) the negligence of the master in adopting an unsafe and dangerous method of doing the work when a safe method was practicable and available. The method adopted for the performance of the work in which the appellee was engaged at the time of his injury was fully described in the declaration and will sufficiently appear herein in the statement of facts.

Appellant is engaged in the manufacture of cotton-seed products and fertilizer, and in the manufacture of fertilizer there is used, among other ingredients, a mixture of sulphate ammonia and phosphorous acid which is called "base." This base is mixed in a hopper and then carried in wheelbarrows to bins in which it is piled. When this base is first prepared it is soft and pliant, but in the bin in which it is stored it becomes, in the course of time, compact and firm, not hard like a rock, but too. compact to handle with shovels only and consequently picks are used in loosening and tearing it down. The...