Goodyear Yellow Pine Co v. Sumrall

• Decision Date: 25 February 1929
• Docket Number: 27482
• Citation: 120 So. 734,153 Miss. 350
• Court: Mississippi Supreme Court
• Parties: GOODYEAR YELLOW PINE CO v. SUMRALL. [*]

120 So. 734

153 Miss. 350

GOODYEAR YELLOW PINE CO v. SUMRALL. ^[*]

No. 27482

Supreme Court of Mississippi

February 25, 1929

Division A

1. MASTER AND SERVANT. Instruction, that log decker could recover for injury caused by speed of horse drawing cable held not warranted by evidence.

Instruction that log decker could recover from employer, if his injury was direct, proximate result of negligence in riding horse too fast in drawing cable into woods, held erroneous, in view of evidence that sudden application of brake by drumman was sole cause of injury.

2. MASTER AND SERVANT. Instructions, that log decker could recover for injury caused by concurrent negligence of drumman and rider of horse drawing cable, held not warranted by evidence.

Instructions that employer would be liable to log decker for injury, caused or contributed to by concurrent negligence of drumman and rider of horse drawing cable into woods, held erroneous, in view of evidence that drumman's sudden application of brake was sole cause of injury.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.

Action by S.E. Sumrall against the Goodyear Yellow Pine Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

L. L. Tyler and J. C. Shivers, for appellant.

Currie & Currie and Hall & Hall, for appellee.

OPINION

COOK, J.

The appellee, S.E. Sumrall, instituted this suit in the circuit court of Pearl River county against the Goodyear Yellow Pine Company, seeking to recover damages for personal injuries alleged to have been sustained by him as the result of the negligent operation of a log skidder near which the appellee was employed as a log decker. The trial of the cause resulted in a verdict for the appellee for the sum of one thousand eight hundred dollars, and, from this verdict and the judgment entered in pursuance thereof, this appeal was prosecuted.

The declaration alleged that the appellee was injured while he was employed by the appellant as decker at one of the steam skidders owned and operated by the appellant; that said skidder was a car, within the meaning of that word as used in the laws of this state; that it was equipped with drums, cables, booms, levers, and other appliances, by means whereof logs could be drawn from the woods to the railroad track and there decked or piled in places convenient for loading them onto log cars; that the said skidder was equipped with a large flexible steel cable called the main line or log cable, fastened at one end to the car, and then wound around a drum or a revolving shaft on the platform of the skidder; that the other end of this cable would then be attached to the harness on a horse, and the cable unwound from the drum and carried into the woods by riding the horse out into the woods and to the log to be drawn in; that the cable was then dropped loose from the horse and fastened to a log by another employee called the tongman; that an employee on the skidder called the drumman would then by the manipulation of levers, apply the steam to the drum so as to cause it to revolve, and, by means of the cable wound thereon, draw the log from the woods to a place near the skidder; that, when the log was drawn in, the main line cable would be taken loose therefrom and a shorter cable called the decker cable attached thereto, by which the log would then be picked up and properly placed or piled on the log deck; and that it was a part of the duties of the appellee to attach this decker cable to the log after the main line cable had been unfastened from it.

The declaration further averred that, when the skidder was in operation, the log cable and decker cable would often be in operation at the same time; that, while the rider on the horse would be drawing the main line cable out into the woods, the appellee would be engaged in fastening or unfastening the decker cable and decking the log last drawn in; and in so doing he was compelled at all times to occupy a position on the ground by the side of, or near, the steam skidder, within close and dangerous proximity to the main line cable, where there was danger of being struck and injured by said cable or any object thrown or hurled by coming in contact therewith, if the said drumman or the said rider should be guilty of negligence in operating the same.

The declaration further alleged that while the rider was negligently running the horse which was drawing the main line cable out into the woods, the drumman negligently and suddenly put the brake on the drum on the skidder, thereby suddenly stopping the drum and causing the cable to be drawn tight and to be thrown high off the ground; that, as a result of the sudden tightening of the cable, a large limb of a tree, which had negligently been allowed to become entangled with the cable, was thrown with great force and violence against appellee's head, thereby seriously injuring him; that the drumman knew, or, by the exercise of ordinary care and caution, should have known, of appellee's peril at the time, and that he was in great danger of being struck and injured or killed by said main line cable, or any tree top or limb...