Gulf Refining Co. v. Ferrell

• Citation: 147 So. 476,165 Miss. 296
• Decision Date: 17 April 1933
• Docket Number: 30275
• Court: United States State Supreme Court of Mississippi
• Parties: GULF REFINING CO. v. FERRELL

147 So. 476

165 Miss. 296

GULF REFINING CO. v. FERRELL

No. 30275

Supreme Court of Mississippi

April 17, 1933

Division A

1. MASTER AND SERVANT.

Employer operating filling station owed its employee, painting "no park" sign on adjoining concrete street, duty of care to see that place was reasonably safe, and to give warning of approaching traffic.

2. MASTER AND SERVANT.

Master generally cannot be relieved of duty to use reasonable care to provide safe place for servant to work by shifting responsibility to fellow servant.

3. MASTER AND SERVANT.

Superintendent of filling station who directed employee of corporation operating station to paint "no park" sign on adjoining concrete street, but failed to give employee warning of approaching truck, held guilty of negligence imputable to master, irrespective of whether superintendent was fellow servant.

4. MASTER AND SERVANT.

Negligence of superintendent of filling station in failing to give warning to employee painting "no park" sign on concrete street adjoining Held concurring proximate cause of employee's injuries when struck by truck.

5. MASTER AND SERVANT.

Master is liable to servant for injuries in spite o£ concurring negligence of third person, if master's negligence in failing to provide reasonably safe working place or give warning contributes to injury.

6 RELEASE.

Instrument whereby employee, struck by truck, released truck driver's employer, held not to discharge his own employer from liability.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE Judge.

Action by Cicero Ferrell against the Gulf Refining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Dunn & Snow, of Meridian, for appellant.

Under the laws of Mississippi, both by statute and by the common law, the driver of every automobile is required to keep it under constant and easy control and to anticipate the presence of other persons on and using the street.

Section 5569, Mississippi Code 1930.

By section 5571 the driver of every motor vehicle, upon approaching a crossing or intersecting highway is required to obey stop signals, if any, and proceed at a speed not greater than is reasonable and proper, having due regard to traffic then on such highway and the safety of the people.

Section 5571, Code of 1930.

The driver of an automobile must keep his machine constantly under control, he must continue on the alert for pedestrians and others using the streets and must anticipate their presence. To assume that the way is clear is not his right. It is his duty, and the great majority of city traffic regulations so prescribe, to slow down at the street intersections in order that possible accidents and collisions may be foreseen and averted.

Ulmer v. Pistole, 76 So. 522, 115 Miss. 485.

That another independent agent, acting on his own responsibility does something because one has done a particular thing, does not make such a one responsible for the act of the other. They are independent actors, and each is answerable for his own acts, because of the want of casual connection between the acts. Consecutive wrongs done by independent agents cannot be conjoined to increase or enlarge the responsibility of one of them.

L. & N. R. R. Co. v. Daniels, 99 So. 434.

Where two distinct successive causes, unrelated in operation, to some extent contribute to an injury, it is settled that where there is an intervening and direct cause, a prior and remote cause cannot be made the basis of recovery of damages, if such prior cause did nothing more than furnish the condition or give rise to the occasion, by which the injury was made possible.

Gerrett v. L. & N. Ry. Co., 71 So. 685; Fraser v. C. R. I. & P., 1917F, L.R.A. 741; Klomp v. C., etc., R R. Co., 210 Ill.App. 375; Y. & M. V. R. R. Co. v. Hullum, 80 So. 645; Drake v. Topeka R. R. Co., 153 P. 539.

In order to hold the appellant liable it must have been guilty of negligence.

L. & N. Ry. Co. v. Daniel, 99 So. 434; A. & V. Ry. v. White, 63 So. 345; McKinnon v. Braddock, 104 So. 154; Austin. v. M. & O. R. R. Co., 99 So. 3.

The doctrine of a reasonably safe place to work has no application to a place of this character, because there is no negligence connected therewith occasioned by the employer. Whatever of danger there was from vehicular travel by third person was an ordinary hazard incident to the character of the work to be performed, and, a hazard assumed by the employee.

Austin v. M. & O. R., 99 So. 3.

The employer had a right to assume that third persons would use the streets with due regard to the right of others then in the streets and to assume there would be no violation of the law. The place where Ferrell was injured had nothing to do with his injury. There was no casual connection of any negligence on appellant's part and the injury.

Y. & M. V. R. R. Co. v. Schragg, 36 So. 194; Raymond v. Western Union Telegraph Co., 91 So. 671.

The injury must be caused by the negligence of the master and not by some other act.

Tatum v. Crabtree, 94 So. 449; I. C. Ry. Co. v. Bishop, 25 So. 267.

If Tatum agreed for himself with appellee to watch for him, and Carlton's truck, through negligence of its driver, struck Ferrell, there was no negligence on appellant's part and the injury was still the result of the negligence of a third person.

Riola v. N.Y. C. R. R. Co., 89 N.Y.S. 947; Guest v. Edison Illuminating Co., 114 N.W. 226.

Where two men of equal grade are working together for the same master and in the furtherance of a common business, and one is injured by the negligent act of the other, the problem is simple as the courts are all in accord as to this. There is no liability.

N. O. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258.

The differences in the grade or station of the employees of a common master, engaged in the furtherance of the general work, makes no difference. It matters not whether an employee be designated a laborer, a sub-foreman, a foreman, a section master, a boss or a superintendent, his acts in the performance of a delegable duty are the acts of a fellow servant and not of the master.

Lagrone v. M. & O. R. R. Co., 7 So. 432.

When servants are employed and paid by the same master and their duties are such as to bring them into such a relation that the negligence of the one in doing his work may injure the other in the performance of his, then they are engaged in the same common business, and, being subject to the control of the same master, they are fellow-servant, within the generally accepted meaning of the rule, no matter how different the grades of services or compensation may be or how diverse or distinct their duties may be.

McMaster v. I. C. R. R. Co., 4 So. 58; Givens v. Southern Railway in Mississippi, 49 So. 180; Hercules Powder Co. v. Hammack, 110 So. 676; Petroleum Oil Corporation v. Bailey, 86 So. 644; Bradford Construction Co. v. Heflin, 42 So. 174; N.E. R. R. Co. v. Conroy, 44 L.Ed. 181; Martin v. A. T. & S. F. Ry. Co., 41 L.Ed. 1051; Shugure v. Providence T. Co., 88 A. 616; Pagan v. Southern Ry. Co., 59 S.E. 32.

A master is liable for the negligence of a superior servant when the servant is engaged in the performance of some of the master's personal duties, but not otherwise; and it is the character of the work, rather than the rank of the servant that controls. A servant may act in the dual relation of vice-principal, representing the master, and as a co-servant with other employees.

Scott v. C. & W. Ry., 85 N.W. 631; C. C. C. & St. L. v. Foland, 91 N.E. 595; Graffon v. Town of Poland, 99 A. 14; Gallant v. Great Northern Paper Co., 95 A. 889; Small v. Allington & Curtiss, 48 A. 178; Pasco v. Minn. Steel & Mach. Co., 117 N.W. 479; C. C. C. & St. L. R. Co. v. Foland, 92 N.E. 165; Ell v. W. P. P. Co., 48 N.W. 222; Baltimore Elev. Co. v. Mall, 5 A. 338; Enright v. Oliver & Burr, 55 A. 277; McDonald v. Hoffman, 102 P. 673; Knutten v. May & N. J. Tele. Co., 52 A. 565; Livingston v. Kodiac Packing Co., 37 P. 149; Leonard v. Mailory, 53 A. 778; Wood v. M. & St. L. R. R. Co., 161 N.W. 674; Dwyer v. American Express Co., 52 N.W. 304; Haley, etc., v. Trices, Admr., 88 S.E. 314; Revolinski v. Manistee and N.E. R. R. Co., 152 N.W. 941; Gubenstein v. S. & W. Eng. Corp., 91 N.E. 411.

Other instances of the existence of facts creating relation of fellow-servant are:

Kelly v. New Haven Steamboat Co., 30 A. 871; Southern Pacific Company v. McGill, 44 P. 302; Daves v. Southern P. Ry. Co., 32 P. 708; Noyes v. Wood, 36 P. 766; Langshore v. Simmington, 66 So. 85; Vestner v. North California Power Company, 110 P. 918; Messenger v. N.Y. Ry., 83 A. 621; N. O. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 259; Illinois Central Railroad Company v. Bishop, 25 So. 868; Millsaps v. L. N. O. & T. Ry. Co., 13 So. 696; I. C. R. R. v. Harris, 29 So. 760.

The counsel for the plaintiff has argued before us that the defendant must be held responsible because the plaintiff had been directed by the foreman, under whose orders he was placed, to look north while he was on the car, and had received the foreman's assurance that he, the foreman would warn him of the approach of danger, and that as the foreman failed to do so it was the failure of the defendant to do something which it was bound as a master to do in furtherance of the obligation it was under to see that the plaintiff had a reasonably safe place in which to perform his work. We do not perceive that the doctrine as to the duty of the master to furnish a safe place for the servant to work in has the slightest application to the facts of this case. The negligence of the section foreman in failing to note the approaching train and to give the proper warning so that the car might...