Graham v. Goodwin

• Decision Date: 24 September 1934
• Docket Number: 31298
• Citation: 156 So. 513,170 Miss. 896
• Court: Mississippi Supreme Court
• Parties: GRAHAM v. GOODWIN

156 So. 513

170 Miss. 896

GRAHAM v. GOODWIN

No. 31298

Supreme Court of Mississippi

September 24, 1934

Division B

Suggestion Of Error Overruled October 22, 1934.

APPEAL from circuit court of Leake county HON. D. M. ANDERSON Judge.

Action by G. H. Goodwin, Jr., against Eugene Graham. Judgment for plaintiff, and defendant appeals. Reversed and judgment granted for defendant.

Reversed and judgment here for appellant.

F. E. Leach, of Carthage, and Watkins & Eager, of Jackson, for appellant.

The plaintiff was not in the employ of the defendant Graham, but, even so assuming, in neither event do the provisions of section 4647, Code of 1930, known as the Child Labor Law, have any application.

Section 4647, 1930 Annotated Code; Handy v. Mercantile Lbr. Co., 121 Miss. 489, 83 So. 674; Buckeye Cotton Oil Co. case, 103 Miss. 767, 60 So. 775; Hartwell Handle Co. v. Jack, 149 Miss. 465, 115 So. 586; Anderson Mfg. Co. v. Wade, 151 Miss. 820, 118 So. 313; Flores v. Steeg Printing & Publishing Co., 78 So. 119.

The plaintiff was an employee of young Brummitt, engaged in hauling bolts for Mr. Price, and the defendant Graham owed him no duty except to refrain from wilful or wanton injury.

39 C. J. 269, par. 389.

Plaintiff's injuries did not proximately result from the negligence of the defendant Graham, but solely as a result of his own carelessness or failure to judge his own strength.

Batson Hatten Lbr. Co. v. Thames, 147 Miss. 794, 114 So. 25; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Eastman Gardiner Hardwood Co. v. Chatham, 151 So. 556; Hammontree v. Cobb Construction Co., 152 So. 279, 282; Brown v. Coley, 152 So. 61.

Answering the inquiry as to "whether the ramp may be considered and held as sufficiently a part of the environs as to be within the legislative intent in using the terms 'in any mill,'" we respectfully submit the following authorities: Murphy v. Bennett, 11 A.D. 298, 42 N.Y.S. 61; Taylor v. State of Nebraska, 112 Neb. 112, 199 N.W. 22; People v. Regell, 221 N.Y.S. 637, 220 A.D. 743; Rugart et al. v. Keebler-Weyl Baking Co., 121 A. 198, 277 Pa. 408; Handy v. Mercantile Lbr. Co., 121 Miss. 489, 83 So. 674.

Since the evidence conclusively shows that the plaintiff was not the employee of the defendant, under no possible theory does the statute have application to him merely by reason of the fact that he was upon the defendant's premises at the time of the accident.

Percy M. Lee, of Forest, for appellee.

The appellee was employed, or detained, or permitted by the appellant and his agents to work in their stave mill in violation of section 4647, Code of 1930.

Under section 4647, Code of 1930, the work may be with or around, but does not have to be with or around, machinery. But if this harsh construction is applied, according to this record, the work was in such close proximity to the machinery that the section still applies.

Even if the appellee was guilty of negligence contributing to his injury, this would go only in diminution of damages, for under this record, the court could not have said peremptorily that such negligence, if there were such, was the sole cause of appellee's injury.

Sections 4645, 4646 and 4647, Code of 1930; State v. J. J. Newman Lbr. Co., 59 So. 923, 60 So. 215; Buckeye Oil Co. v. State, 60 So. 777; Bledsoe v. Lumber Co., 73 So. 881; Hartwell Handle Co. v. Jack, 115 So. 587; Anderson Mfg. Co. v. Wade, 119 So. 313.

It is our contention that the ramp in question was a part of the environs within the legislative intent in the use of the term, "in any mill," etc., and in support of this position, we cite the following authorities:

Boody v. K. & C. Mfg. Co., 77 N.H. 208; Pellerin v. International Cotton Mills, 248 F. 245, 160 C. C. A. 320; 40 C. J. 713-4; Rackley et al. v. Sprague et al., 17 Me. 281, 285; Farrar v. Stackpole, 6 Me. 154, 157, 19 Am. Dec. 201; Teaff v. Hewitt, I Ohio St. 511, 536, 59 Am. Dec. 634; Webster's New International Dictionary, "Mills;" 38 C. J. 146; 4 C. J. 1470.

Argued orally by Pat Eager, for appellant, and by Percy M. Lee, for appellee.

OPINION

Griffith, J.

At the time of the injury for which this action was brought, appellant was engaged in the operation of a stave mill, and appellee, the injured party, was a minor of the age of fifteen years and eleven months. It appears that some, if not all, of the raw material, that is, the billets of hardwood, upon which the mill operated, was purchased by appellant from neighboring timber owners, and that these owners would deliver the timber to the ramps of the mill, where an employee of appellant, known as the yard foreman, would scale the timber so delivered and issue vouchers therefor. On the day of the injury, appellee was engaged in assisting one of the independent timber owners aforesaid in the hauling of billets of timber from the woods to the ramps at the mill. It was the duty of the haulers to unload the billets from the trucks to the ramps, but it was no part of their duty but was the duty of the yardman to roll the billets from the initial landing place of the ramp down the ramp to the yard.

There were more than one of these ramps and they were about fifty feet long. One of them led directly into the sawmill, but another was located to the "west of the saw part of the mill." It was at this west ramp that the injury occurred. When appellee, coming in with a load of billets from the woods, arrived at the west ramp, its initial landing place was found to be filled with billets, so that the timber could not be unloaded from the truck; and appellee asserts that to prevent delay he was directed by the yard foreman to roll some of the billets down the ramp to the yard. In so doing appellee was severely injured.

It is contended by appellee that he was in the general employ of appellant on the day of the injury. The evidence does not sustain that issue. Appellee contends further that the directions of the yard foreman to appellee to roll down some of the billets established for the time being the relation of master and servant between appellant and appellee. It may be that upon one or the other of two theories, the evidence was sufficient to go to the jury on the issue of employment at the particular time of the injury, and, assuming but not deciding that it was, we have carefully reviewed the record on the facts and have come to the conclusion that there is not sufficient substantial and dependable proof to sustain liability against the appellant under the general law in regard to the duties of master to servant.

The ramp is shown by the undisputed testimony to have been constructed according to the standard pattern for unloading at such mills; appellee himself directly admitted that there was nothing substantially wrong with the ramp. The work of rolling the billets down the ramp, one by one, was a simple operation and whatever dangers there were in it were inherent and obvious. Appellee admits that he knew and understood the manner of doing this work. So that the sole basis of complaint upon the issues of negligence is left to rest upon the theory that no help was furnished appellee in rolling down the particular billet which caused the injury. It is not shown that this billet was different in size shape, or weight from many others of the general run of billets being brought from the surrounding woods and handled at these ramps. The record fails to show that the rolling down of a particular billet, according to the usual and generally observed manner or way was any other than a one-man task, and there is no evidence, that, according to the usual course of conduct or experience in rolling down a particular billet any more than one man was reasonably necessary or was ever used. On the contrary, the proof is that the yard foreman, so called, alone and unaided, usually did this work of rolling down the billets; there is no evidence that he had any difficulty in doing so, and it is undisputed that appellee was intelligent and was of a size which indicated that he was about seventeen or eighteen years old. It is far from sufficient proof that simply because a worker is injured in doing a one-man's job he should have been furnished help. While the rule as to furnishing sufficient servants is a salutary one, it is not to be unduly extended as is shown by such cas...