Gulfport Creosoting Co. v. White

• Decision Date: 22 October 1934
• Docket Number: 31365
• Citation: 171 Miss. 127,157 So. 86
• Court: Mississippi Supreme Court
• Parties: GULFPORT CREOSOTING CO. v. WHITE

157 So. 86

171 Miss. 127

GULFPORT CREOSOTING CO. v. WHITE

No. 31365

Supreme Court of Mississippi

October 22, 1934

Division B

Suggestion Of Error Overruled, November 5, 1934.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Joshua. White against the Gulfport Creosoting Company. From the judgment, the defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Ford, White & Morse, of Gulfport, for appellant.

The master is responsible to the servant only for injuries received, through his negligence, and the burden of proving such negligence is upon the servant, to the same extent that it is upon all other plaintiffs seeking to recover on the ground of negligence.

Hope v. Railroad, 98 Miss. 822; Allen Gravel Co. v. Yarborough, 133 Miss. 652; Wausau Lbr. Co. v. Cooley, 130 Miss. 333; Bear Creek Mill Co. v. Fountain, 130 Miss. 436.

In order to show the master's negligence plaintiff must make an affirmative showing of actual knowledge on his part of the defect or danger, or else prove facts which show that, in the exercise of ordinary care, he should have known it.

39 C. J. 1079 et seq.

The doctrine of res ipsa loquiture is inapplicable to negligence cases arising between master and servant. The fact that an accident occurred is not sufficient to overcome the mere legal presumption that the defendant exercised ordinary or reasonable care in the conduct of its business in the absence of any evidence whatever to support that presumption.

Canadian Northern Ry. v. Senske, 120 C. C. A. 65; Miss. Central R. R. v. Bennett, 111 Miss. 163; Jones v. Southern Ice Co., 150 So. 652.

Appellee has utterly failed to prove the essential elements of his case.

It is well settled that when there is a safe way to do a thing, and an unsafe, where the judgment and means of observation of the master and servant are the same and the work is not complex, the proper or safe way must be observed.

Ovett Land Co. v. Adams, 109 Miss. 740.

Gex & Gex, of Bay St. Louis, and O. J. Dedeaux, of Gulfport, for appellee.

In the case at bar both the plaintiff and Mr. Lewis testified that it was the duty of Mr. Lewis, the general repair man and mechanic, to keep all the wrenches in repair. We submit that such duty involved the making of such inspections as were necessary to ascertain if the tools were in good working order and further that in the case at bar the doctrine of res ipsa loquitur applies in its fullest extent.

Godley v. Hines, etc., 86 So. 289; A. & V. R. R. Co. v. Groome, 52 So. 704; Railroad Co. v. Hicks, 91 Miss. 352; Western Steel Car & Foundry Co. v. Cunningham, 48 So. 109; G. & M. Coast Traction Co. v. Hicks, 116 Miss. 164; N. O. & T. R. R. Co. v. Conroy, 63 Miss. 562.

That the master is liable for injury caused his servant, when the servant is acting in compliance with direct orders of the master, is too, well established in Mississippi to require citation of authorities; however, we respectfully refer the court on that theory to the following cases:

18 R. C. L. 150; 39 C. J. 700; C. & O. R. R. Co. v. Proffitt, 241 U.S. 462, 60 L.Ed. 1102; Maslek v. Pa. R. Co., 160 N.E. 523; R. R. Co. v. Guin, 109 Miss. 187.

It is the duty of the master to furnish his servant with reasonably safe tools and appliances with which to do his work, and he is responsible to his servant for any injury received by the servant, while himself in the exercise of due care, by reason of any defect in such tools and appliances of which the master knew, or by the exercise of reasonable care and diligence could have known.

Hope v. Matchez C. & M. R. Co., 98 Miss. 822; Railway Co. v. Wiley, 88 Miss. 825.

The master's duty to the servant requires the exercise of reasonable care and skill, not only in furnishing safe machinery and appliances, but in keeping them in safe condition.

Northern Pacific Ry. Co. v. Altimus, 179 F. 275.

OPINION

Griffith, J.

Appellee was employed by appellant to tighten large door bolts at the end of a long cylindrical vat about seven feet in diameter, and to do this work appellee was furnished with a ratchet wrench, weighing about thirty-five pounds, with a handle some three feet in length. This wrench was made up of a spring, a ratchet sometimes called a dog, and a cylinder with ratchet teeth or sockets, all of which parts are inclosed. There was an opening in this inclosure which permitted the head of the bolt to enter; so that when the wrench is placed upon the bolt and the handle of the wrench is worked, the bolt will tighten without the necessity of replacing the wrench upon the bolt for each manipulation of the handle. On the occasion in question appellee had placed the wrench upon the head of a bolt and applied manual force to the handle of the wrench, and the wrench slipped, as he says, causing the handle unexpectedly to strike and injure him. The testimony discloses that when the handle of the wrench is manipulated contrariwise to the direction in which the bolt is to be turned, as must be done to get a new hold, there will be a click, or a series of clicks, caused by the pressure of the spring operating upon the dog, when the dog falls into its appropriate place in the ratchet arrangement, and that it is necessary to give due attention to the clicks both in the matter of the proper operation of the wrench and in regard to whether the tool is in good order and is properly working. The sole negligence charged in the declaration was an alleged defect in the wrench.

There were only two witnesses for appellee, himself and another, introduced as an expert. There is no direct testimony in behalf of appellee that the wrench was, in fact, in any way defective or out of order, appellee relying upon the fact that the accident occurred, and upon his testimony, and the rather inconclusive testimony of the expert, that the injury would not have occurred had the wrench been in good order. There is no testimony that the employer had any actual knowledge of the defect, if there was a defect, and no testimony as to how long the wrench had been out of order, if it was out of order. So far as the testimony shows, the disorder may not have come into existence until the moment of the accident, in fact, all of the testimony for appellee, when taken together with that part of the testimony for appellant which is undisputed, is consistent with the theory last mentioned, if there were any defect at all. But of the testimony, more will be briefly said later in this opinion.

It is the universal rule wherever the common law prevails that the duty of the master in regard to tools and places to work is not that of an insurer, is not an absolute duty, but is simply to exercise reasonable care to furnish the servant with reasonably safe tools and appliances, and likewise as to a safe place to work. 39 C. J., p. 313 et seq.; Mobile &amp O. Railroad Co. v. Clay, 156 Miss. 463, 482, 125 So. 819; and other cases hereinafter cited. And, in accordance with that rule, it is the settled law in this state that when an injury is claimed to have resulted because of a defective tool, two elements are necessary to be proved by the party seeking recovery: (1) That the tool was in fact defective; and (2) that the master had knowledge, actual or constructive, of the defect at the time of the injury. In order to show constructive knowledge, it is necessary to prove (a) that the defect was one which could have been discovered by a reasonably careful inspection by a competent person, and (b) that the defect had been in existence for a sufficient length of time to have afforded the master a reasonable opportunity to make the examination or inspection. Hope v. Railroad Co., 98 Miss. 822, 829, 54 So. 369; Alabama & V. Railway...