Forbus v. Cobb Bros. Const. Co.
| Decision Date | 27 February 1939 |
| Docket Number | 33429 |
| Citation | 185 So. 243,184 Miss. 647 |
| Court | Mississippi Supreme Court |
| Parties | FORBUS et al. v. COBB BROS. CONST. Co. et al |
January 2, 1939
APPEAL from the circuit court of Prentiss county HON. THOS. H JOHNSTON, Judge.
Action by Elmer W. Forbus and others against the Cobb Bros Construction Company and others for the death of Audie E Forbus, a minor, from injuries sustained while in defendant company's employ. Judgment for defendants, and plaintiffs appeal. Affirmed.
On suggestion of error. Suggestion of error overruled.
Affirmed.
Jas. A Cunningham and Floyd W. Cunningham, both of Booneville, for appellants.
Plaintiffs' decedent being a young boy 18 years of age, wholly inexperienced and unfamiliar with road machinery or other motor vehicles, placed to watch on this lot where these dangerous dumpbeds were set like bird-traps, constituting a series of veritable death-traps, should have been fully and intelligibly warned of the danger involved in availing of the perfectly apparent temptation to take shelter under one of them from rain or storm or for other cause, which inevitably meant his death, all being known to the master, we say the master should have carefully and explicitly warned and instructed him of such danger before setting him to work and exposing him to his death.
Sea Food Co. v. Alvis, 77 So. 857; Masonite Corp. v. Lockridge, 140 So. 223; S. H. Kress & Co. v. Markline, 77 So. 858, 117 Miss. 37; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; American Sand & Gravel Co. v. Reeves, 151 So. 477; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691;18 R. C. L. 567; 39 C. J. 486, sec. 602; Simmons v. Doullutt & Ewin, Inc., 145 So. 708; 3 LaBatt, Master & Servant (2 Ed.), sec. 975; 4 LaBatt on Master & Servant (2 Ed.), sec. 1558.
Cobb Brothers Construction Company and their foreman in charge owed the duty to plaintiffs' decedent of warning and instructing him of the hidden dangers on these premises likely to be contacted through the incidents of his purposes there on the premises considering the length of his stay, and the necessity for shelter, and the answer of calls of nature, and the retirement of lunch, etc., on the idea that he was an invitee on the premises and that the invitation extended to the entire rainy stormy day, and with the notice that the aforesaid incidents attended his stay and made it likely to the master's mind considering the common traits of humanity that he would be tempted to retire under one of these truckbeds for some incidental purpose of his day's stay, unless warned.
2 Restatement of Law of Agency, sec. 491; 1 Thompson Commentaries on Negligence, sec. 969; 2 Restatement of Law of Torts, sec. 342; Gulf Ref. Co. v. Moody, 160 So. 559; La. Oil Corp. v. Davis, 158 So. 792; Standard Oil Co. v. Decell, 166 So. 379; N. O. & N.E. R. Co. v. Brooks, 165 So. 804.
Ordinarily, a master may rely upon the servants' being careful as to themselves and as to other workmen. Nevertheless, due care may require the master to make regulations and take precautions based upon the probable occurrence of sporadic negligent acts. He must take into consideration the fact that even employees of ordinary prudence occasionally will be inadvertent in their work, and he is required to provide for the safety of those who work with or near them under the conditions which are likely to prevail.
2 Restatement of Law of Agency, sec. 493; 45 C. J., sees. 211, 291-2.
The fact that this boy may have diverted for a moment from the active watch for shelter out of a rain and/or storm and/or for a reasonable place to either procure his lunch that had been put away or to eat his lunch does not take him outside the scope of his employment and does not remove him from the master's non-delegable duty to exercise care to provide for him a reasonably safe place to work, neither does it relieve the master of the duty of exercising reasonable care of safeguarding these death-traps or warning him as an invitee on their premises at the time.
Seafood Co. v. Alvis, 77 So. 857; 39 C. J., sec. 398; Brown v. Golightly, Ann. Cas. 1918A 1184; Employers Mutual Ins. Co. v. Industrial Commission, 130 P. 394; Geibig v. Ann Arbor Asphalt Const. Co., 214 N.W. 90; Richards v. Indianapolis Abattoir Co., 102 A. 604; Bubis v. Flockhart Foundry Co., 191 A. 281; Ziolkowski v. American Radiator Co., 161 N.E. 164; Rolling Mill Co. v. Rockhold, 42 So. 96; 4 LaBatt on Master and Servant, 4690, sec. 1558.
It was contended in the court below and will be contended here that this boy was instructed not to go about the trucks and not to allow anybody else to go about them, that the master wanted the trucks to be ready for service next morning and by everybody getting upon them they might turn a switch and run the battery down, or something. We contend that if the contention of the appellees were true as to what they claim was said to the boy at the times and places alleged, that this amounted to no proper warning and instruction in compliance with their duty to him for his safety so he could guard against this series of hidden death-traps by these truckbeds set like traps and also triggered as if they were ready for the touch of the prey, for there was nothing that tended or afforded any hint or warning of the presence of these most fatal death-traps there where the boy was required to work. The master's duty to instruct an employee of hidden perils and death-traps such as are involved in bringing about this youth's death must be explicit and thoroughly understandable so that no doubt shall be left especially where it is a youthful employee wholly unadvised and uninformed of the nature of his environment.
39 C. J., sec. 622; James v. Rapides Lbr. Co., Ltd., 44 L.R.A. 33; LaBatt on Master & Servant, sec. 1283.
We cite Miss. Ann. Code, 1930, section 511 and citations thereunder; Everett Hdw. Co. v. Shaw, 173 So. 411; Gulf, Mobile & Northern R. Co. v. Walters, 134 So. 831; 3 LaBatt on Master & Servant (2 Ed.), section 1282, which holds that disobeying instructions the employee thereby becomes guilty of contributory negligence because done in violation of rules and orders, but this is concededly the common law rule and could not be so construed as to constitute a complete bar in this state where the doctrine of comparative negligence prevails.
Plaintiff offered competent witnesses and admissible testimony to contradict the testimony of this witness from several different standpoints because it was then and is now a mooted question of whether this boy was instructed at all or not depended upon the testimony of one of the defendants, G. M. Mayo, who was called by the plaintiff as an adverse witness and cross-examined and the question raised by his testimony should have been submitted to the jury even if it should be regarded effective.
Rowe v. State, 163 So. 22; Holland v. State, 142 So. 112; 2 Jones on Evidence (2 Ed.), pages 1086 and 1115; Merchants Co. v. Tracy, 166 So. 340; Southern Bell Telephone Co. v. Quick, 149 So. 107; Graves v. Utica Candy Co., 204 N.Y.S. 682; S. H. Kress & Co. v. Markline, 77 So. 858; Fletcher v. State, 151 So. 477; 22 C. J. 94, sec. 35; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Mass. Protective Assn. v. Cranford, 102 So. 171; Texas Ry. Co. v. Gentry, 41 L.Ed. 186.
We submit that even from all the evidence excluded that was offered in this case, the trial court erred in excluding the evidence and directing a verdict for the defendant because it should be in rare cases where the trial court exercises this prerogative and he should never do it where there is any conflict in the evidence or in any reasonable inference that may reasonably be drawn from the evidence. To put it in other words, when there is any controversy in the testimony about which reasonable men might reasonably be expected to take different views.
Loper v. Yazoo-Miss. Valley R. Co., 145 So. 743; Sovereign Camp, W. O. W. v. Banks, 170, So. 634; Stevens v. Stanley, 122 So. 755; King v. King, 134 So. 827.
Fred B. Smith, of Ripley, for appellees.
The evidence of this case wholly fails to show any negligence on the part of the appellees, and since none of the duties of the decedent required him to get on, about, or under the trucks of the appellees, and since the proof conclusively shows that decedent was specifically instructed on two occasions not to get on or go about the trucks, there could have been no liability on the appellees.
Seifferman v. Lech, 161 Miss. 853, 138 So. 563; Hammontree v. Cobb Bros. Constr. Co., 168 Miss. 844, 152 So. 281; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Latimer v. Dent, 177 Miss. 869, 172 So. 126.
When we take into consideration the fact that no duty imposed on the decedent required him to get under the truck, and with absolute safety he could have performed his work and not have approached near the truck, we cannot believe that it can be successfully contended that there was any negligence on the master relative to furnishing an unsafe place to work. This is especially true when we recall that our court has time and time again held that the master is only required to exercise ordinary and reasonable care to provide a reasonably safe place to work.
Meridian Grain & Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65.
It is also well established that a servant can never fix liability on a master for furnishing an unsafe place to work, or unsafe means or method of work, where the servant elected a dangerous or different method than that designated by the master.
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Forbus v. Cobb Bros. Const. Co.
...Circuit Court, Prentiss County; Thos. H. Johnston, Judge. On Suggestion of error. Suggestion of error overruled. For former opinion see 185 So. 243. watchman of road contractor's equipment had been instructed not to go under truck, failure to caution watchman regarding danger of operating, ......