Eastman Gardiner Hardwood Co. v. Chatham

• Decision Date: 01 January 1934
• Docket Number: 30930
• Citation: 151 So. 556,168 Miss. 471
• Court: Mississippi Supreme Court
• Parties: EASTMAN GARDINER HARDWOOD CO. v. CHATHAM

151 So. 556

168 Miss. 471

EASTMAN GARDINER HARDWOOD CO. v. CHATHAM

No. 30930

Supreme Court of Mississippi

January 1, 1934

Division A

Suggestion Of Error Overruled January 15, 1934.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Action by Hugh Chatham against the Eastman Gardiner Hardwood Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for the appellant.

C. S. Street, of Laurel, and T. J. Wills, of Hattiesburg, for appellant.

A person cannot profit by his own wrong, and, where he is employed to make a place safe or to keep a place safe as a part of his employment, and negligently fails to do so, he cannot attribute his own negligence to the master and thus profit by his own wrong.

Hooks v. Mills, 101 Miss. 91, 57 So. 545; Hegwood v. J. J Newman Lumber Co., 132 Miss. 487, 96 So. 695; Waterman-Fouke Lumber Co. v. Miles, 135 Miss. 146, 99 So. 759; Edward Hines Lumber Company v. Dickinson, 125 So. 93; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Ovett Land & Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Rose v. Pace, 144 Miss. 375, 109 So. 861.

There was no negligence or wrong on the part of the master shown. The sole proximate cause of plaintiff's injury was his own negligence act in catching the splinter between the rollers and the saw, which he knew when brought in contact with the rollers would shove his hand into the saw.

Jeff Collins and F. B. Collins, both of Collins, for appellee.

In a case recently decided by this court, in 149 So. 792, Good Year Yellow Pine Co. v. Mitchell, in considering the question of whether or not plaintiff's voluntarily doing the thing that was dangerous barred him of recovery, this court held, in considering this question, that section 513 of the Code of 1930 should be kept in mind, and there cites a great number of authorities. It further held that "where the master commands the servant to do the 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, . . ."

A servant is not free when disobedience of his master means the loss of his job.

Hardy v. Turner, Farber Love Co., 101. So. 489.

The allegation in the declaration that the appellant failed to have its work done in a reasonably safe way is the statement of a cause of action, and the proof in this case is ample to support that allegation of the declaration.

Argued orally by T. J. Wills, for appellant, and by Jeff Collins, for appellee.

OPINION

McGowen, J.

Hugh Chatham recovered a substantial verdict against the appellant, Eastman Gardiner Hardwood Company, for personal injuries sustained by him, and, from the judgment entered thereon, an appeal is prosecuted here.

The declaration charged that the defendant owed plaintiff certain duties, among which was to furnish him reasonably safe tools and appliances with which to work and a reasonably safe place in which to work, and to have its work done in a reasonably safe way and not to require plaintiff to do his work in a dangerous way. The appellee claims that all of these duties and obligations were violated by appellant.

The appellee was the only witness who testified, in the case, and at the conclusion of his testimony the appellant moved to exclude the evidence and requested the court to peremptorily instruct the jury to find a verdict for it which was refused. The appellee testified that he had been working for the defendant, the hardwood mill, for more than a year, running a re-saw, a machine used for the purpose of ripping up the large planks after they came from the band saw; that the re-saw was fed through four upright rollers, similar to feeding cane into a cane mill; that, in the re-saw process of manufacturing the lumber, splinters and accumulation of trash would gather around the rollers and impede the work, making some boards thin and some thick and irregular and undesirable; that it was his duty to feed the re-saw and to remove accumulation of trash, bark, and splinters from the rollers, and for this purpose he had a stick about thirty inches long, but sometimes this stick did not serve the purpose. Appellee was an experienced sawmill man and had worked for more than thirty years around a sawmill. He also testified that the operation of removing the trash and splinters was a dangerous one. On three occasions he had flagged the foreman, who, in turn caused the engineer to stop the mill in order for him to remove the accumulation of splinters; he said that the foreman who directed him came to him and told him to keep the mill running. He testified that at times he had removed the splinters and trash with his hands while the machinery was in operation, but more often he used the stick for cleaning. He further testified that the foreman had ordered him, when the lumber was uneven because of trash in the rollers, to keep the trash and accumulation from around...