Finkbine Lumber Co. v. Cunningham

Decision Date25 March 1912
Docket Number15,053
CourtMississippi Supreme Court
PartiesFINKBINE LUMBER COMPANY v. J. B. CUNNINGHAM

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Suit by J. B. Cunningham by next friend against the Finkbine Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Miller & Dodds, for appellant.

In view of the undisputed facts in this case, it is practically immaterial whether the defendant is to be regarded as an employee or not, for, upon the plaintiff's own showing no conceivable liability is established.

Let it be assumed, for the present, that Guy, instead of being and continuing to be an independent contractor, alone responsible to those whom he employed in respect to delegable duties, was a mere foreman of defendant, the only pretense upon which it is sought to hold the latter, for an unfortunate accident, is that because, in the necessary course of the work being done by plaintiff (under contract with Guy), small pieces of wood chips, strips or bark dropped upon the floor, which were frequently cleared away, and, in reaching for the oil can, he slipped on one of them and fell on the saw over which he had reached. He was at his regular place of work, was entirely familiar with the conditions, accumulation and insecure footing it might occasion, yet took the step he did.

It admits of no question whatsoever but that the plaintiff's opportunity for knowing the condition of the floor at the moment was far superior to that of defendant; it was perfectly obvious and was inevitable in the operation of a standard machine, therefore, how can negligence be predicated against the defendant?

And the court certainly erred in refusing charge No. 3, asked by defendant, for a reasonably safe place was undoubtedly provided for the plaintiff to work in. If his fellow servants failed to clean up right under his eye, he was bound to know it. There is no absolute guarantee of safety under all circumstances. N. P. R. Co. v. O'Brien, 161 U.S. 457. Nor is the master bound to anticipate every conceivable contingency. McKee v. R. R. Co., 83 Iowa 616.

If the place is unsafe because of the nature of the work and a servant suffers injury in consequence thereof, he cannot hold the master liable, provided reasonable precautions were taken by the master to avoid injury. The risk of injury from such cause is one of the risks assumed by the servant. 20 Am. and Eng. Ency. Law, 57, citing cases in the United States Courts: Delaware, Illinois, Massachusetts, Michigan, Missouri, New York, Oregon, Pennsylvania, Washington and Wisconsin.

"Obvious imperfections or inherent dangers in methods of work, existing at the time of entering upon the employment, cannot be made the basis of liability in favor of an employee who suffers an injury in the course of such employment." Ib. 118-119, citing numerous cases.

Now, it will be recalled that Cunningham said himself the pieces would drop from the end of the saws on the floor and would be cleared away often. He knew the conditions exactly, yet, thoughtlessly, or in momentary forgetfulness of the danger of such a step, reached above the saw and slipped.

"If the servant is conscious of the dangers, the fact that he, for a moment, forgets their existence, and thereby sustains an injury, will not make the master liable." Ib. 120.

Plaintiff's case rests absolutely upon the proposition that it was the duty of the defendant, at all times, to keep the floor, where he worked, clear of debris falling from the saws operated by plaintiff and to have anticipated such a contingency as arose, regardless of plaintiff's superior opportunities of knowing the conditions and dangers, if any there were.

Now, while it is true in the abstract, that the duty of providing safe appliances and safe place, for a servant to work in, is a continuing one, to be accomplished by a proper and timely inspection for defects and the repair thereof. That rule does not apply to defects or dangers arising in the course of the work which are not of a permanent character and do not require the help of skilled mechanics to repair, but which may easily be and usually are remedied by the workmen. On the same principle, an accumulation of debris, which can easily be and usually is removed by the hands working about the place, cannot subject the master to liability. Ib. 89. All this is just as applicable to such a change in the conditions of the place as arose in the present instance.

To make the master liable in such case would be to make him an unqualified insurer of his employees' safety.

Again, a servant who fails to use ordinary care in looking out for danger and is injured while in the discharge of a hazardous duty cannot recover therefor on the ground that the master failed to use means to prevent the injury. Capital City Oil Works v. Black, 70 Miss. 8.

It is a most extravagant assumption that, in providing this place for the stave maker, the employer should have guarded against the danger of his reaching up over a running saw and slipping upon the dropping debris, especially when the oil can could have been safely reached from either end of the box which enclosed the saws, if not from the back as well, which is proved to have been the case.

Upon the theory that plaintiff was an employee of defendant, it was claimed in the court below that the case of Kneale v. Dukate, 83 Miss. 201, was conclusive in plaintiff's favor. But that is a grave error. There is no similarity between that case and this, as appears from the statement in the brief of counsel for appellant in that cited where he says: "As a general rule, where a man operating a saw is injured by a piece of wood thrown from it at the time of the injury, in the natural course of its operation, the injury is held to be one of the incidents attending the operation of the saw, the risk of which he assumes when he undertakes such work." In that particular case, the negligence of the master was his failure to remove or cause to be removed the strips, debris and other rubbish which had accumulated, from time to time, in the passage way through which appellant had to go; not the case of a temporary accumulation in the course of the work which is swept away many times a day in the plaintiff's own work.

It is apprehended that no case can be found which has imposed such a duty of inspection as is insisted on here.

It is concluded that the place was reasonably safe, to begin with, and it was kept as reasonably safe as could be, considering the nature of this work; that, unlike the case of Kneale, this plaintiff was fully aware of the conditions.

That no mortal could ever be held to anticipate such a contingency as arose in Cunningham's case.

J. H. Mize, for appellee, filed an elaborate brief fully covering all points in the case but too long for publication, contending:

1st. That plaintiff was a servant of defendant and not of an independent corporation. Brower v. Timreck, 71 P. 581, 66 Kan. 770; Larsen v. United Gas Improvement Company, 180 F. 268; Bains v. Works Company, 223 Pa. 96, 72 A. 279; Tennessee Coal & Granite Co. v. Berges, 47 So. 1029.

2d. That the evidence discloses a general liability on the part of defendant. Kneale v. Dukate, 93 Miss. 201; Baker v. Duwamish Mill Co., 20 Am. Deg. Rep., Current Series, 738; Myers v. Concord Lumber Co., 39 S.E. 960.

3d. That the instructions for plaintiff were correctly given and the instructions for defendant properly refused. Hattiesburg Lumber Co. v. Blair, not reported; Kneale v. Lopez and Dukate, 93 Miss. 201.

Argued orally by E. Mayes, for appellant.

Argued orally by George Butler, for appellee.

OPINION

MAYES, C. J.

In January, 1909, the Finkbine Lumber Company was engaged in the general sawmill business in Harrison county, and in connection therewith operated certain machines for the purpose of manufacturing staves, laths, and shingles. Some time in January of that year the company made a proposition to one W. H. Guy, whereby it was proposed that Guy should assume the control and operation of that part of the machinery of the company used for the manufacture of laths shingles, and staves. The contract specified the price they were to pay Guy for the manufacture of the products named, and that Guy should use the material for the manufacture of laths, shingles, and staves and the machinery, of the Finkbine Lumber Company. Guy was to receive a certain price for the finished product. Settlement was to be made with Guy at the end of each week, and the contract required that Guy should turn in the names of all employees he might employ, so the Finkbine Lumber Company might charge them with accident insurance, rent, etc., should any of them live in the houses belonging to the Finkbine Lumber Company. The contract with Guy further stipulated that Guy should not employ boys younger than fifteen years of age. It seems that the reason for this stipulation was because the insurance company prohibited the working of boys under that age. The contract also contained a stipulation to the effect that, in case there should be any necessity for repairs that would fall upon the Finkbine Lumber Company to furnish, Guy should make a written requisition on the superintendent, Mr. Finlay. Guy commenced work for the Finkbine Lumber Company under this contract, the Finkbine Lumber Company furnishing all saws, belts, oil, and power, and Guy employed the laborers,...

To continue reading

Request your trial
65 cases
  • Cook v. Wright
    • United States
    • United States State Supreme Court of Mississippi
    • 4 de janeiro de 1937
    ...215; 18 R. C. L. 493; Sawmill Construction Co. v. Bright, Bright v. Finkbine Lbr. Co., 77 So. 316; Isaacs v. Prince & Wild, 97 So. 558; 57 So. 916. orally by O. B. Triplett, Jr., for appellant, and by Nate Williamson, for appellee. OPINION Griffith, J. On June 26, 1934, appellant Cook enter......
  • Wilson & Co., Inc. v. Holmes
    • United States
    • United States State Supreme Court of Mississippi
    • 22 de novembro de 1937
    ...... Company employed him to do. . . Finkbine. Lbr. Co. v. Cunningham, 57 So. 916, 101 Miss. 292;. J. J. Newman Lbr. Co. v. Dantzler, 64 So. ... main of placing the ends in the boxes being manufactured from. lumber and lumber veneer in the plant of [180 Miss. 367] the. appellant; and that on the occasion in ......
  • Gully v. Wilmut Gas & Oil Co
    • United States
    • United States State Supreme Court of Mississippi
    • 10 de fevereiro de 1936
  • H. Weston Lumber Co. v. Hibbens
    • United States
    • United States State Supreme Court of Mississippi
    • 20 de junho de 1938
    ...... servant of the H. Weston Lumber Company, as well as of the. David J. Joseph Company. . . Finkbine. Lbr. Co. v. Cunningham, 101 Miss. 292;. D'-Antoni v. Albritton, 126 So. 836; Kisner. v. Jackson, 159 Miss. 424; 14 R. C. L. 67-76; 31 C. J. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT