Edwards v. Haynes-Walker Lumber Co.

• Decision Date: 05 March 1917
• Docket Number: 18822
• Citation: 74 So. 284,113 Miss. 378
• Court: Mississippi Supreme Court
• Parties: EDWARDS v. HANYES-WALKER LUMBER CO

74 So. 284

113 Miss. 378

EDWARDS v. HANYES-WALKER LUMBER CO

No. 18822

Supreme Court of Mississippi

March 5, 1917

Division B

APPEAL from the circuit court of Tishomingo county, HON. CLAUDE CLAYTON, Judge.

Suit by J. W. Edwards against the Hanyes-Walker Lumber Company. From a judgment for defendant on a peremptory instruction plaintiff appeals.

Reversed and remanded.

James A. Cunningham, for appellant.

This master owed to his employees all of the ordinary duties encumbent upon masters who operate dangerous machinery and they cannot evade this responsibility by entrusting the same to the judgment, care and management of an employee while they are away and engaged in other and different matters. Taylor v. Bradford, 83 Miss. 157; Taylor v Bradford, 85 Miss. 409; 2 Thompson on Negligence (1 Ed.), pages 975 and 1029; 4 Thompson on Negligence (2 Ed.), sec. 4949-50-1-2; 4955-6-78; 4961-2; Especially White's Recent Supplement, Vol. 8 of Thompson on Negligence, secs. 4946 and 4956; 4 Labatt on Master and Servant (2 Ed.), sections 1466-7-70; also the same 1435; 3 Labatt (2 Ed.), section 905.

The issuance of orders in and about dangerous machinery is deemed to be official acts and bind the master although issued by an employee entrusted with management. 4 Labatt on Master and Servant, sec. 1470; 4 Thompson on Negligence (2 Ed.), sections 4324-5; 8 Thompson on Negligence (White's Supplement), sections 4946 and 4956.

When an employee is engaged in a matter about his master's business and not dangerous of itself, and the master creates a transitory danger by careless orders he is liable for the consequence to the employee, and the rule is the same whether he be present or represented by a vice. 4 Labatt on Master and Servant (2 Ed.), section 1471.

Injuries to servants through the sudden starting of dangerous machinery by the orders of the master of the person in charge whose orders are to be obeyed is a form of negligence that cannot be too highly condemned. To support this view we cite 4 Thompson on Negligence (2 Ed.), section 4006 from which we quote the following to-wit: "It need not be said that where machinery is allowed by the master to run without warning to a servant who is engaged in repairing the machinery, and who has been led to believe by the master that it is at rest, whereby he is injured, it is due to the personal negligence of the master, and a servant may recover damages."

The notes under this section are copious and enlightening and amply sustain the author in his view.

J. W. Lamb, for appellee.

Now, by reference to the testimony offered by the appellant, it is clearly shown that the appellant was not injured by the negligence of any foreman, nor was there any vice principal acting in the place of the principal. If the appellant was injured because of the negligence of any of the employees, it was because of the negligence of Arthur Hanyes, who was the sawyer, and a day laborer, just like the appellant. The mere alleging that a coworker is a foreman, or vice principal, does not render the master liable for the negligence of a co-worker who is a mere fellow servant with the appellant, because the appellant alleges he is vice principal.

It is not disputed that if the appellant was injured by the negligence of a fellow servant, he cannot recover, and that the peremptory instruction was properly given. We will now refer to the court to what we conceive is the law applicable to the case, and apply the same to the facts in this case.

The controlling question in this case is, Were Arthur Hanyes, the sawyer, and the appellant, J. W. Edwards, fellow servants?

If the question is answered in the affirmative, there is at once an end to the contention, for it is apparent from the record in the case, that the injury complained of, resulted from the negligence of the sawyer, Arthur Hanyes, if it resulted at all from any negligence on the part of the employees of the appellees.

At the time of the injury both the appellant and the sawyer, Arthur Hanyes were engaged in the ordinary work of simple day laborers.

The leading case in this state, is the case of Railroad Company v. Hughes, 49 Miss. 252, and on page 282 the court says as follows: "The general principle which prevails in England, and in most of the American states, is, that a servant accepting employment for the performance of specified duties takes upon himself the natural and ordinary perils incumbent to the servants in the same common employment." Lagrone v. M. & O. R. R. Co., 67 Miss. 597; Railway Company v. Petty, 67 Miss. 255; N. O. Etc., R. R. v. Hughes, 49 Miss. 258; Howd v. M. C. R. R. Co., 50 Miss. 178; L. N. O. & T. Ry. Co. v. Petty, ante, p. 255.

It seems to us that the rule announced in these decisions, as to when the fellow servant rule applied, and who are fellow-servants, is so plain that there can be no ground for discussion and that the appellant in this case, and the sawyer, come strictly within these rules, and the principle of law announced in these cases. Givens v. Ry. Co. 94 Miss. 855.

The appellant in this case was not injured because of any orders given him by Arthur Haynes, the sawyer, and ratified by Robin Haynes, the superintendent; and appellant was not injured because of his obedience or disobedience, to any order given him, by Arthur Haynes, but was injured by the negligence of Arthur Haynes, the sawyer, if the injury was caused by any negligence on the part of the employees.

We respectfully submit to the court that the record does not sustain the appellant when he contends that Arthur Haynes was the vice principal. 4 Labatt (2 Ed.), page 4143, sec. 1434; Kimmer v. Webber, 56 Am. St. Rep. 633; Cullen v. Norton, 126 N.Y. 1; Hankins v. New York, etc., R. R. Co., 142 N.Y. 416, 40 Am. St. Rep. 616."

Even if Arthur Haynes had the power to control his fellow workmen, in the absence of Robin Haynes, this fact does not make him a vice principal. The general statement of the doctrine is laid down by 4 Labatt (2 Ed.), p. 4167, sec. 1441.

We respectfully submit to the court that any injuries appellant sustained, was because of the negligence of a co-worker and the record in this case shows this fact clearly and conclusively.

It was the duty of the court to say whether or not the employee was a vice principal. In this case the court did say, and said that the employee was not a vice principal. 4 Labatt, (2 Ed.), p. 4161, sec. 1437.

We respectfully submit to the court that the peremptory instruction given for the appellees was proper and that this case should be affirmed.

COOK, P. J. STEVENS, J., took no part in this decision.

OPINION

COOK, P. J.

This suit originated in and was tried in the circuit court of Tishomingo county. According to the testimony of witnesses for plaintiff, he was an employee of the defendant company and his duties were that of a block setter; and it was his duty, among other things, to oil the bit saw mandrel. In order to perform his...