Everett Hardware Co. v. Shaw

• Decision Date: 15 February 1937
• Docket Number: 32587
• Citation: 172 So. 337,178 Miss. 476
• Court: Mississippi Supreme Court
• Parties: EVERETT HARDWARE CO. v. SHAW

172 So. 337

178 Miss. 476

EVERETT HARDWARE CO. v. SHAW

No. 32587

Supreme Court of Mississippi

February 15, 1937

Division B

1. MASTER AND SERVANT.

Master is required to furnish safe place and instrumentalities with which to work, whether there is one or several men doing work.

2. MASTER AND SERVANT.

Servant is not required to abandon employment because in his own judgment he is not of sufficient strength, if required by master, to perform certain work, especially where demand to do such work is accompanied by threat of loss of employment if servant does not do what he is directed to do.

3. MASTER AND SERVANT.

In action by servant, aged 63, who suffered hernia when nail keg weighing 107 pounds fell as he attempted to lift it to truck after recent illness, evidence that servant voluntarily undertook task without assistance heldinsufficient for jury.

4. MASTER AND SERVANT.

In action by servant, aged 63, who suffered hernia when nail keg weighing 107 pounds fell as he attempted to lift it to truck after recent illness, testimony of servant that he told employer's manager he did not believe he could load nails into truck held admissible, as tending to show employer's knowledge of servant's inability to perform task alone especially where manager admitted knowledge of servant's recent illness.

5. MASTER AND SERVANT.

In action by servant, aged 63, who suffered hernia when nail keg weighing 107 pounds fell as he attempted to lift it into truck after recent illness, servant's testimony as to his lifting capacity or strength held admissible, under evidence authorizing finding that servant was denied assistance, as tending to show assistance was required to perform task.

6. MASTER AND SERVANT.

Instruction authorizing recovery by servant against master if jury found employer required servant to load keg of nails on truck, that servant was not physically able to perform task alone, that employer knew servant's physical condition, that only reasonably safe way to load nails was through assistance of another employee, that employer knew, or should have known assistance was needed and failed to provide it, and that, as a result, servant was injured, held not error, under evidence.

HON. J P. ALEXANDER, Judge.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by E. L. Shaw against the Everett Hardware Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On suggestion of error. Suggestion of error overruled.

Affirmed.

Watkins & Eager and Butler & Snow, all of Jackson, for appellant.

The learned trial court erred in refusing appellant's request for a directed verdict.

Appellee's evidence conclusively showed that the task was a one-man job; did not require any concert of action by more than one employee; and appellee having full power and authority to procure additional help if necessary which was in accordance with the master's authority and appellee's previous practice, and which help was easily and immediately available.

Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Batson, Hatten Lbr. Co. v. Thames, 147 Miss. 799; Graham v. Goodwin, 170 Miss. 896, 156 So. 513; Cobb Bros. Const. Co. v. Campbell, 170 So. 283; G. M. & N. R. R,. Co. v. Nutt, 120 Miss. 93, 81 So. 642; Jefferson v. Denkmann Lbr. Co., 167 Miss. 246, 148 So. 237; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 150 So. 792; Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S.W. 964; Seymour v. Holman, 158 So. 525; Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443; Seifferman v. Leach, 161 Miss. 858, 138 So. 563; Barron Motor CO. v. Bass, 167 Miss. 786, 150 So. 202; Newell Contracting Co. v. Flint, 172 Miss. 719, 161 So. 298; 18 R. C. L. 703, par. 187; 17 Am. & Eng. Ann. Cas. 241; Ferguson v. Phoenix Cotton Mills, 106 Tenn. 236, 61 S.W. 53; Petrille v. Swift, 260 S.W. 516; DeGraw v. Bettendorf Axle Co., 171 Iowa 451, 153 N.W. 82.

In order for a servant to recover for an injury on the ground that it resulted from his compliance with the direct order of his master or his master's representative, the servant must show that the order was a negligent one under the circumstances. If the order was negligent and the servant knew of the peril of complying with it, or if he had equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then he cannot recover for his injury received from compliance with the order.

Hightower v. Southern R. R. Co., 146 Ga. 279, 91 S.E. 52, L. R. A. 1917C 481, 4 Sup. R. C. L. 1201; Brandon v. Glove Investment Co., 108 Wash. 360, 184 P. 325, 10 A. L. R. 286; Hunter v. Busy Bee Candy Co., 271 S.W. 800; Worlds v. Georgia R. R. Co., 99 Ga. 283, 25 S.E. 646; Haywood v. Galveston, etc., 85 S.W. 433; Ehrenberger v. C. R. I. & P. R. R. Co., 183 Iowa 1339, 166 N.W. 735; Stenrog v. Minnesota Transfer R. Co., 108 Minn. 199, 25 L. R. A. (N. S.) 362, 17 Ann. Cas. 240; Central Kentucky Gas Co. v. Cantrell, 183 Ky. 291, 209 S.W. 1; O'Hare v. Cocheco Mfg. Co., 51 A. 257; Sandy Valley & E. R. Co. v. Tackett, 181 S.W. 349, L. R. A. 1916D; Hinds v. Ross, 230 S.W. 1065.

The evidence offered on behalf of appellee positively establishes the fact that his injury did not proximately result from his effort in lifting and raising the keg of nails, but by reason of the truck lunging forward after the keg of nails had been lifted to the bed of the truck, and which movement caused the keg of nails to be thrown backward and off of the truck and against appellee's body.

22 R. C. L. 110; I. C. R. R. Co. v. Wright, 135 Miss. 444, 100 So. 1; Billingsley v. I. C. R. R. Co., 100 Miss. 624, 56 So. 796; Hattiesburg Chero Cola Bottling Co. v. Price, 141 Miss. 893, 106 So. 771; Dantzler Shipbuilding & Dry Docks Co. v. Hurley, 119 Miss. 484, 81 So. 163; L. & N. R. Co. v. Daniel, 135 Miss. 33, 99 So. 434, 34 A. L. R. 516; Ozen v. Sperier, 117 So. 118; Royston v. I. C. R. R. Co., 67 Miss. 384; Pounders v. Day, 118 So. 299; McDonald v. Collins, 144 Miss. 825, 110 So. 663.

The learned trial court erred in overruling appellant's continued objections to appellee's evidence to the effect that he told Mr. Everett, the manager, that he did not believe he could load the nails.

True-Hixon Lbr. Co. v. McDonough, 154 Miss. 720, 122 So. 855; Chism Bros. v. Alcorn, 71 Miss. 506, 15 So. 73; Shantin v. Bd. of Comrs., etc., 160 La. 1036, 107 So. 897; Georgia Pacific Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195; Gower v. Strain, 169 Miss. 344, 145 So. 244; Alexander v. Ballard, 95 Fla. 950, 117 So. 96; First National Bank v. Evans, 100 Fla. 740, 130 So. 18.

The learned trial court erred in overruling appellant's objection to appellee's testimony with respect to his lifting capacity or strength.

Barnett, Jones & Barnett and John E. Stone, all of Jackson, for appellee.

The trial court committed no error in refusing appellant's request for a directed verdict on the first count of the declaration.

Whether or not appellee needed assistance, whether or not appellant's foreman was negligent in refusing to furnish assistance, whether or not appellee acted as a reasonably prudent man would have acted under the circumstances, and whether or not the injury received by appellee was directly and proximately caused by appellant's negligence, were questions of fact for the jury to decide.

Allen v. Gilman, McNeil & Co., 127 F. 609; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792, 150 So. 810; Tull v. Kansas City Southern R. Co., 216 S.W. 572; Chicago Anderson Pressed Brick Co. v. Gobkowisk, 148 Ill. 583, 36 N.E. 572; Patterson v. Pittsburg & C. R. Co., 76 Pa. 389, 18 Am. Rep. 412; Shortel v. St. Joseph, 104 Mo. 114, 168 S.W. 397.

The master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master, and he has a right to rely upon the superior knowledge and skill of the master. The servant is not entirely free to act upon his own suspicions of danger.

4 Labatt, Master & Servant, sec. 1362, pages 3921-3922; 39 C. J., sec. 627; Wike v. Oregon-Washington, R., etc., Co., 83 Or. 678, 163 P. 825.

It is the master's duty to employ a sufficient number of servants to do the work in which they are employed with reasonable safety to themselves.

Jirmasek v. Payne, 151 Minn. 421, 186 N.W. 814; 39 C. J., sec. 627.

Of course, under our statute abolishing assumption of risk, if the master's negligence contributed to the injury, comparative knowledge of the risk assumed can have no weight except as it affects contributory negligence, which in our state is not a bar to a recovery, but there can be no doubt that appellee here was at least as prudent in undertaking to do the work ordered as was the appellee in the Mitchell case, 168 Miss. 152. Furthermore, whether a job is a one-man job or a two-man job is to be measured by the physical power of those who are attempting to do the particular work, rather than by the strength of an "average man." Insofar as appellee was concerned, he undertook a two-man job.

The negligence of appellant in failing to furnish a helper and in requiring performance of the work under a threat of discharge for failure to perform was the direct and proximate cause of the injury received by appellee.

Thompson v. Miss. Central R. Co., 166 So. 353; Magers v. Okolona, Houston & Calhoun City R. Co., 165 So. 416.

The trial court committed no error in overruling appellant's objections to appellee's evidence to the effect that he told his manager that he could not load the kegs of nails on the truck.

The trial court committed no error in overruling appellant's objection to appellee's testimony concerning his...