Goodyear Yellow Pine Co. v. Mitchell

• Citation: 168 Miss. 152,150 So. 792
• Decision Date: 02 October 1933
• Docket Number: 30693
• Court: Mississippi Supreme Court
• Parties: Goodyear Yellow Pine Co. v. Mitchell.

150 So. 792

168 Miss. 152

Goodyear Yellow Pine Co.
v.
Mitchell.

No. 30693

Supreme Court of Mississippi

October 2, 1933

(Division B.)

1. MASTER AND SERVANT.

Employee held not to assume risk of injury resulting from over-exertion, when foreman, on threat of discharge, ordered him to do work alone, for which assistance was needed, since injury resulted from foreman's negligence (Code 1930, section 513).

2. MASTER AND SERVANT.

Master must exercise reasonable care in providing servants reasonably safe means of work, including proper assistance.

3. TRIAL.

Refusal of requested instructions is harmless, where other instructions embodying substantially same principles are given. [168 Miss. 153]

HON. J. Q. LANGSTON, Judge.

Action by Harvey Mitchell against the Goodyear Yellow Pine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Parker & Shivers, of Poplarville, and Stevens & Heidelberg, of Hattiesburg, for appellant.

The master is not liable for injury caused by overexertion or overstrain.

Our court has heretofore held that the master is not liable to an employee for overexerting or overstraining himself, or misjudging his own lifting capacity.

Batson-Hatten Lbr. Co. v. Thames, 147 Miss. 794, 114 So. 25.

It is the general rule that a servant is the best judge of his own physical strength and in the absence of coercion compelling him to overtax that strength, it is his duty not to overtax it.

Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S.W. 946, 10 A. L. R. 1396; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800.

In this state, just as at common law, the servant still assumes all of the usual and ordinary dangers and hazards attendant upon and incident to his employment.

Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.

When the courts refer to the danger of overexertion or overstraining being one of the risks assumed by the employee, they are referring to one of the usual and ordinary risks of the employment and not to one of the dangers caused by the negligence of the master.

Williams v. Kentucky River Power Co., 10 A. L. R. 1396; Ehrenberger v. Chicago, Rock Island & Pacific Ry. Co., 182 Iowa, 1339, 166 N.W. 735, 10 A. L. R. 1388; Patrum v. St. L. & S. F. R. Co., 168 S.W. 622; Williams v. Pryor, 272 Mo. 613, 200 S.W. 53; Tull v. Ry. Co., 216 [168 Miss. 154] S.W. 572; Worlds v. Georgia R. Co., 25 S.E. 646; Havi-land v. Kansas City P. & G. R. Co., 172 Mo. 106, 72 S.W. 515; Yazoo City Transportation Co. v. Smith, 78 Miss. 140.

There has been no case by our court upholding liability of the master on account of the servant's overexerting or overstraining himself.

We are not unfamiliar with the rule that where the work is of such nature as to require men to do the work, then the men engaged in the work are classed in the same category as appliances, and the master owes the duty to furnish a sufficient number of men to do the work. However, this rule does not create liability where, in the absence of a sufficient number of men to do the work, the employee overexerts or overstrains himself in an effort to do it alone, or with insufficient help.

Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800; Haviland v. Kansas City P. & G. R. Co., 172 Mo. 106, 72 S.W. 515; Thorpe v. Railroad, 89 Mo. 650, 2 S.W. 3, 58 Am. Rep. 120; Fogus v. Railroad, 50 Mo.App. 250; Petrilli v. Swift & Co., 260 S.W. 516; Bowman v. Kansas City Elec. Light Co., 213 S.W. 161; Tull v. Kansas City, etc., R. Co., 216 S.W. 572; Roberts v. Indianapolis St. Ry. Co., 64 N.E. 217; 10 A. L. R. 1399; Stenvog v. Minnesota Transfer R. Co., 108 Minn. 199, 25 L. R. A. (N. S.) 362, 121 N.W. 903, 17 Ann. Cas. 240.

A mere threat to discharge even when made by one having the power to discharge has been held by our court not to amount to duress.

Gulf & S. I. R. Co. v. Sullivan, 119 So. 501.

The defendant is not responsible for injuries caused by plaintiff's own abnormal condition. Hathorn & Williams, of Poplarville, and J. E. Stock-still, of Picayune, for appellee.

Under the evidence appellee was entitled to have this case submitted to the jury on the theory that appellant [168 Miss. 155] was negligent in failing to furnish and maintain sufficient help with which to carry, lift and stack said bundle.

39 C. J., p. 523, para. 627; 18 R. C. L., p. 601, para. 101; Cincinnati R. R. Co. v. Tucker (Ky.), 181 S.W. 940; Tull v. Kansas City Southern Railroad Co. (Mo.), 216 S.W. 572; Natural Gas Engineering Corp. v. Bazor (Miss.), 137 So. 788; Denkmann Lbr. Co. v. Jefferson (Miss.), 148 So. 237; Pigford v. Railroad Co., 160 N.E. 93, 75 S.E. 860, 44 L. R. A. (N. S.) 865; Di Bari v. Bishop Co., 199 Mass. 254, 85 N.E. 89, 17 L. R. A. (N. S.) 773; Rosin v. Lbr. Co., 63 Wash. 430, 115 P. 833, 40 L. R. A. (N. S.) 913; Alabama Railroad Co. v. Vail, 142 Ala. 134, 38 So. 124, 110 A. S. R. 23.

It is the duty of the master not only to furnish but to maintain...