Gow Co., Inc. v. Hunter

• Decision Date: 11 May 1936
• Docket Number: 32197
• Citation: 175 Miss. 896,168 So. 264
• Court: Mississippi Supreme Court
• Parties: GOW CO., INC., v. HUNTER

168 So. 264

175 Miss. 896

GOW CO., INC., v. HUNTER

No. 32197

Supreme Court of Mississippi

May 11, 1936

Division A

1. MASTER AND SERVANT.

Change in position of heavy machine being moved up incline to ledge cut in embankment twenty-five or thirty feet from level of road, to be used in location and preparation of bridge foundations, held not change in place of work caused by progress of work which would relieve master of liability for injury to servant for failure to provide reasonably safe place for servant to work.

2. MASTER AND SERVANT.

Master held to have nondelegable duty to exercise reasonable care to furnish reasonably safe place for servants to work and to exercise such care to provide reasonably safe means and methods of performing work, including sufficient number of servants to perform duties required of them.

3. MASTER AND SERVANT.

Superintendent in charge of location and preparation of bridge foundations held to have acted in place of master in placing servants on and around machine being moved up incline to ledge cut in embankment twenty-five or thirty feet above road level and directing release of block and tackle holding machine in place, so that master would be liable for negligence of foreman, if any, in so directing work.

4. MASTER AND SERVANT.

Risk assumed by servant is danger incident to service which remains after master has exercised reasonable care for safety of servants (Code 1930, sec. 513).

5. MASTER AND SERVANT.

Servant who was ordered to catch and hold heavy machine which was being moved up embankment to ledge cut therein twenty-five or thirty feet above road level when block and tackle holding machine was released and machine slipped down, held not to have voluntarily assumed risk of injury therefrom, since he was then confronted with emergency with no time for thought or deliberation (Code 1930, sec. 513.).

6. MASTER AND SERVANT.

Petition in action for injuries received by servant when he obeyed order of foreman to catch and hold heavy machine which was being pulled up embankment to ledge twenty-five or thirty feet above road level as machine slipped down on him when block and tackle was released, held sufficient to state cause of action for negligence in master's failure to exercise reasonable care for safety of servants.

7 NEGLIGENCE.

Where facts are undisputed but reasonable minds may draw different inferences as to negligence therefrom, solution of issue of negligence should be submitted to jury.

8. MASTER AND SERVANT.

Question of master's liability for injuries to servant, received when servant obeyed order of foreman to catch and hold heavy machine being pulled to ledge cut in embankment twenty-five or thirty feet above level of roadway when block and tackle holding machine was released, held for jury (Code 1930, sec 513).

HON. E. L. BRIEN, Judge.

APPEAL from Circuit Court of Warren County HON. E. L. BRIEN, Judge.

Action by Henry Hunter, Jr., against the Gow Company, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Green, Green & Jackson, of Jackson, for appellant.

Appellant furnished a block and tackle of adequate type, a suitable pin, and there were present eight persons, with one voluntarily assisting to move a drilling machine running on skids weighing less than one thousand pounds. It was being moved up hill. Appellee contends that the obligation obtained upon the part of appellant to furnish a reasonably safe place to work; such rule is not here applicable.

The rule requiring the master to use ordinary care to provide a reasonably safe place for his servant to work is not applicable to a case in which the very work which the servant is employed to do is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety. The hazards arising thus are regarded as being the ordinary dangers and risks of the employment which are assumed by the servant when he accepts the employment.

G. M. & N. R. Co. v. Brown, 143 Miss. 890, 108 So. 504; Brown v. Coley, 168 Miss. 778, 152 So. 61; Cumberland Tel. Co. v. Cosnahan, 105 So. 615, 62 So. 824; Lumber Co. v. Miles, 135 Miss. 146, 99 So. 759; Miller v. Moran Bros., 39 Wash. 631, 81 P. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917; Railroad Co. v. Williams, 96 Miss. 373, 53 So. 619; Cybur Lumber Co. v. Elkhart, 118 Miss. 401, 79 So. 235; Hamilton Bros. v. Narciese, 158 So. 467, 172 Miss. 24.

There was no liability upon appellant for releasing said block and tackle because (a) if therein there was negligence, it; was of a fellow-servant; (b) possibility of danger was an assumed risk.

Harper v. Public Service Corp., 170 Miss. 39, 154 So. 266; Lagrone v. Mobile & O. R, Co., 67 Miss, 592, 7 So. 432; 4 Labatt, Master & Servant (2 Ed.), pages 4314-4316; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; Gwin v. Carter, 158 Miss. 196, 129 So. 597; Barron Motor Co. v. Bass, 150 So. 202; Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644; Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787; McMaster v. Illinois Central R. Co., 65 Miss, 267; 3 Wood's Railway Law, 1494; Hagan v. Field, 51 S.Ct. 72; Ross v. Walker, 21 Afl. 158; McKay v. Hand, 47 N.E. 105.; Burns v. Washburn, 160 Mass. 457, 36 N.E. 199; Adasken v. Gilbert, 165 Mass. 443, 43 N.E. 199; Reynolds v. Barnard, 46 N.E. 703; Ling v. Railway Co., 52 N.W. 379; Anderson v. R. & Nav. Co., 68 P. 864; Butterworth v. Clarkson, 22 N.Y.S. 714; Callan v. Bull, 113 Cal. Rep. Pomeroy 603; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443; Jefferson v. Denkmann Lbr. Co., 167 Miss. 246, 148 So. 237; Graham v. Goodwin, 170 Miss. 896, 156 So. 513; Brown v. Coley, 168 Miss. 778, 152 So. 61; Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So, 279; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; Buckeye Cotton Oil Co. v. McMorris, 158 So. 799; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792; Yazoo City Transportation Co. v. Smith, 78 Miss. 140; Truly v. Lumber Co., 83 Miss. 436; 14 Am. & Eng. Enc. Law (1 Ed.), 844; Anderson-Tully Co. v. Goodin, 163 So. 536; Daniel v. Jackson Infirmary, 163 So. 447; Hooks v. Mills, 101 Miss. 91, 57 So. 545.

The court erred in peremptorily instructing for appellee against appellant on the liability issue.

Where the facts are conceded but inference as to the negligence is doubtful, depending upon the knowledge and experience of men, the jury and not the court should pass upon the issue.

Miss. Central 14. Co. v. Mason, 51 Miss. 234; Southern R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Bell v. Southern R. Co., 87 Miss. 234, 30 So. 821; Laurel, etc., Co. v. Railroad Co., 87 Miss. 675, 40 So. 259; Gulf, etc., R. Co. v. Cole, 101 Miss. 411, 58 So. 208; Patton v. Texas & P. R. Co., 179 U.S. 660, 45, L.Ed. 363.

Vollor & Teller, of Vicksburg, for appellee.

Appellant urges that the appellee assumed the risk. Frankly we cannot comprehend this argument. We first call to the attention of the court Section 513, Code of 1930, the portion thereof pertinent to this case being as follows: "Abolishing doctrine of assumption of risk of employee, when the master is negligent--exception as to certain employees.--In all a actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master."

Citation of authority is hardly deemed necessary to sustain the fundamental well-established principle that it is a non-delegable duty of the master to exercise reasonable care to furnish his employees a safe place in which to work, and that it is the further and non-delegable duty of the master to so order and control the manner and method of work so as to eliminate all unnecessary dangers to a servant who is performing work assigned to him in furtherance of the master's business and according to the intructions of the master.

1 Labatt on Master and Servant, page 443; Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80; McLemore & McArthur v. Rogers, 152 So. 883, 169 Miss. 650; Masonite Corp. v. Lichridge, 140 So. 223, 163 Miss. 634, 141 So. 758, 163 Miss. 364.

There is no question here under the proven facts but that the master was here negligent in placing his servant at a place and in a situation, and then, by its own act, causing and creating a condition of eminent danger proximately resulting in injury to the appellee.

Restatement of the Law of Torts, sec. 302, page 814, sec. 309, page 838; Jefferson v. Denkmann Lbr. Co., 148 So. 237, 167 Miss. 246; Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792, 168 Miss. 152.

No risk can be assumed which is not voluntarily undertaken with knowledge, or opportunity for knowledge, of the risks involved.

M. K. & T. Ry. v. Freeman, 168 S.W. 69.

The law is well stated and sustains the action of the court below even without any consideration of the inexperience of the appellee in the work being performed and his reliance necessarily and strict obedience, as the testimony shows, to the orders of the appellant's superintendent.

Clairmont v. Cilley, 153 A. 465.

The facts unequivocally show in the case at bar not only that the emergency was created by the release of said block and tackle at a time when there was not sufficient help provided to assist appellee, which act was inexcusably negligent and a breach of a non-delegable and primary duty owed by appellant to appellee, but further it is unmistakenly shown that there...