Sea Food Co. v. Alves

• Decision Date: 25 February 1918
• Docket Number: 19992
• Citation: Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857 (Miss. 1918)
• Court: Mississippi Supreme Court
• Parties: SEA FOOD CO. v. ALVES

77 So. 857

117 Miss. 1

SEA FOOD CO. v. ALVES

No. 19992

Supreme Court of Mississippi

February 25, 1918

Division A

APPEAL from the circuit court of Harrison county, HON. JAMES H NEVILLE, Judge.

Suit by Joe Alves by next friend, against the Sea Food Company.From a judgment for plaintiff, defendant appeals.

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

Judgment affirmed.

Carl Marshall, for appellant.

That plaintiff, when injured, was not engaged in his work, was not in his place of work, and was not in a place incidental or reasonably appurtenant thereto, and was not at the time moving in furtherance of his work, is manifested by every witness (including plaintiff) whose testimony touched upon the point.

The rule is well settled.We submit, that when an employee is injured while not acting in furtherance of his employment, as in the instant case, where the plaintiff went from his place of work a distance of thirty feet, where he unnecessarily conversed with another employee, and loitering there for ten minutes, was injured in said place where he had no reason to be, he cannot recover damages against his employer for his injuries.Yazoo & Mississippi Valley Railroad Company v Louis W. Slaughter et al.,92 Miss 289, 45 So. 873;N. O. & N. E. Railroad v. Mobly(Miss.),63 So. 665;Olson v. Railroad Company,76 Minn. 149, 48 L. R. A. 796;Railroad Company v. Adams,105 Ind. 151, 45 N.E. 187;Golf v. Railroad,86 Wis. 237, 65 N.W. 465;Kauffman v. Maier, 94 Cal. , 269 P. 481;Pioneer Mining and Manufacturing Company v. Talley, 43 So. 800, 152 Ala. 162.

But even assuming that plaintiff was injured while in the discharge of his duties, and in his place of work, or in a place to which the performance of his work reasonably required him to go, a fact negatived by the entire record, he utterly failed to prove in the trial below that his injury was caused by a condition of the wharf negligently maintained by appellant, within the scope of the law.This being true, despite his minority, he, as an employee, assumed the risk of injury from this incidental hazard of his work, he, as shown by the record, knowing and appreciating and realizing the danger.Hope v. Railroad Company,98 Miss. 822;A. & V. Railroad Company, v. White, 106 Miss. 141.

Nor can any presumption of negligence be entertained against appellant because of the appellant's efforts, successful or unsuccessful, to enclose the cable and slot after the occurrence of the accident.The record shows the plaintiff on the witness stand with great adroitness "shooting in" the statement that the "hole" had been closed; and, on the same page, volunteering the information that he was not playing.But the law will not bar progress by using efforts at eliminating the human equation as criteria of past negligence.Adams v. Crim(Ala.),58 So. 442;Burnwell Coal Co. v. Setzer(Ala.),67 So. 604; Jones on Evidence, 288;Alabama Coal, etc., Company v. Heald,42 So. 808, 149 Ala. 405, Kent v. Railroad Company,77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 535;Hope v. Railroad Company,98 Miss. 822, 54 So. 369;Railroad Company v. White,106 Miss. 141, 63 So. 345;Railroad Company v. Wooley,77 Miss. 927, 28 So. 26;Hooks v. Mills, 101 Miss. 91, 57 So. 545.

And in determining what is reasonably safe the employer must be accorded the right to assume that employees will fairly, or at least to a reasonable degree, exercise the faculties with which nature has provided them for their protection.Woodward Iron Company v. Marbutt,62 So. 807; Labatt, Master and Servant, chapter 4.

Appellee, we submit, was injured solely by his own action, and not by any negligence of appellant proximately causing his injury.The requested peremptory charge should have been given appellant.Ikler v. Nix,114 Miss. 293, 75 So. 120.When the testimony fails to show negligence of the master, but on the contrary that the servant was injured by his own negligence, a peremptory charge should be granted.

The doctrine of volenti non fit injuria, rare in its practical application, applies here with peculiar force.Even though the negligence of appellant, which is negatived by the record, were assumed to exist, and even in the light of our statutory abolition of the defense of assumption by the servant of the risk of injury from defects due to his master's negligence to the injured party; and even assuming that appellee was injured while at work, and in his place of work, we cannot conceive of a plaintiff's being permitted to recover damages for an injury received by him, whether the relationship of master and servant exists or not, when knowing, seeing, and appreciating the danger, he uselessly and voluntarily incurs it.

We respectfully and earnestly submit to the court that for the reasons above given, among others, the judgment of the learned court below should be reversed.

Mize & Mize, for appellee.

So we submit that there is nothing in any of appellant's contentions.This case falls squarely within the doctrine announced in 4 Thompson on Negligence, sec. 3888, to-wit: "Duty of master to prevent or guard man traps, trap doors and other hidden dangers on such premises.This duty of the master extends to preventing the premises whereupon he requires the servant to work, from containing dangerous pitfalls, obstructions or other man traps into which his servant is liable, unguardedly, to fall while his mind is absorbed in the duties of his employment."

This was exactly the case here.This unfortunate youth had his mind absorbed in his work and slipped into the hole which appellant had left exposed near the track where he had to perform his work of greasing cars.See also cases cited by Thompson to sustain this doctrine.

The cases cited by appellant announce correct propositions of law, but appellant's trouble is that the facts in the case do not support the doctrine laid down in the cases cited by counsel.

The verdict in this case is not excessive, and appellant does not contend that it is.In fact, it is very moderate for the injury sustained by appellee.This boy's leg was horribly mangled by being caught by this moving cable; the flesh was torn from the bones and he bones both broken at different places below the knee.As to the extent of his injury, see his testimony and the testimony of Dr. Wallace, and the testimony of Miss Hardy, the trained nurse at the hospital and testimony of Mrs. Alves.The court will observe from the record that appellee was injured in January and was brought from the hospital, where he had been continuously since his injury, to the court room when this case was tried on the 7th day of May, and it was not known how long he would have to remain in the hospital.

We respectfully submit that this case should certainly be affirmed.

OPINION

HOLDEN, J.

Appellant operated an oyster cannery in the city of Biloxi.Its canning house was on the beach, and its wharf extended from the house out over the waters of the harbor.Schooners laden with oysters for the factory would moor at the wharf.Tracks were projected from the house running out upon the wharf upon which small crated cars, twenty-two inches wide and eighteen inches deep, with seven-inch wheels, pushed by hand, conveyed the oysters from the boats to the factory.The oysters were then steamed in the crates on the cars, causing the grease to be removed from the car wheels, necessitating the wheels being greased on each trip of the cars out when empty.The appellee, Joe Alves, a minor fourteen years of age, was employed by the appellant to grease and regrease the wheels of these empty cars on the wharf while they were stopped and awaiting...