Gulfport Fertilizer Co. v. Bilbo

• Decision Date: 03 May 1937
• Docket Number: 32595
• Citation: 174 So. 65,178 Miss. 791
• Court: Mississippi Supreme Court
• Parties: GULFPORT FERTILIZER CO. v. BILBO

174 So. 65

178 Miss. 791

GULFPORT FERTILIZER CO. v. BILBO

No. 32595

Supreme Court of Mississippi

May 3, 1937

Division A

Suggestion Of Error Overruled May 31, 1937.

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

Action by John Bilbo against the Gulfport Fertilizer Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Leathers, Wallace & Greaves, of Gulfport, for appellant.

The obligation of the master to establish a sale system or method of doing the work required of his servants and to promulgate and enforce rules for the observance of such a system of method applies only when, in addition to being dangerous, the work is complex, and the conditions which may arise are uncertain and obscure.

Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v Lookout Oil & Refining Co., 133 Miss. 248, 97 So. 546; Brown v. Coley, 168 Miss. 778, 152 So. 61; Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279.

The master is never requited by law to furnish the latest and safest places to work, nor the latest, most improved and safest equipment, appliances and tools. He has discharged his legal duty to his servant when he has exercised reasonable care to furnish a reasonably safe place to work, and reasonably safe equipment, appliances and tools for use in the performance of the work.

Morgan-Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61; C. & G. R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; L. & N. R. R. Co. v. Davis, 75 F.2d 849.

It is a universal rule of law wherever the common law prevails that the duty of the master in respect to places to work, and in respect to equipment, appliances and tools for the performance of the work, is not that of an insurer, is not an absolute duty, but is simply the duty to exercise reasonable care to furnish his servant a reasonably safe place in which to do the work requited of him and reasonably safe equipment, appliances and tools for use in the performance of the work to be done.

M. & O. R. R. Co. v. Clay, 156 Miss. 463, 125 So. 819 Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Gulfport Creosoting Co. v. White, 157 So. 86; C. & G. R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298.

When the law speaks of "reasonable safety" in connection with a place of work, and the equipment, the appliances and the tools to be used in the performance of the work, it means a working place, with equipment, appliances and tools which can be used with reasonable safety to the servant when he exercises reasonable care in the normal use of such working place, equipment, appliances and tools.

Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298.

The law only requites the master to exercise reasonable care to furnish his servant a reasonably safe place in which to work, and reasonably safe equipment, appliances and tools to do the work with.

Brown v. Coley, 168 Miss. 778; Barron Motor Co. v. Bass, 167 Miss. 786.

The evidence discloses without conflict, that on account of the innate character of the work itself, the keeping of the working place in a reasonably safe condition throughout every moment the appellee and his fellow servants worked there, depended upon the performance of the work itself by the appellee and his fellow servants in a reasonably prudent manner. In other words, the work itself was not unduly dangerous in its nature, therefore, any unusual dangers in the working place, in the very nature of things, had to be created by the appellee and his fellow servants, as the work progressed, by reason of theft failure to discharge theft respective duties with reasonable care to the end that they would not unduly create dangers which would endanger theft safety and would render theft working place unsafe.

Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; 39 C. J. 824, sec. 1038; Barron Motor Co. v. Bass, 167 Miss. 786; Gulfport Creosoting Co. v. White, 157 So. 86.

The work being performed by the appellee and his fellow servants when he was injured was not inherently dangerous, neither was it such work that conditions which might arise during its performance were obscure and uncertain; but the work was of such a nature that the conditions constantly shifted and changed from time to time as the work progressed in its usual and ordinary course of performance, which unavoidably caused the reasonable safety of the place of work from moment to moment as the work progressed to be wholly dependant upon the performance of the work by the appellee and his fellow servants with reasonable care for theft safety and the safety of the place of work. Under such circumstances, and in view of the maturity and experience of the appellee and his fellow servants, the appellant was relieved by law of the duty to stand by and to guard and protect the appellee from the harmful consequences of his negligence and the negligence of his fellow servants in the performance of the work being done.

International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 14 So. 143; City of Tupelo v. Payne, 168 So. 283; Gaines v. Strickland, 170 So. 695; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440; Brown v. Coley, 168 Miss. 778, 152 So. 61.

When the master has furnished a suitable place in which to do the work and the ordinary, proper and suitable equipment and appliances kept in good order with which to work, then, if the servant is a mature and sensible man of some experience in the character of work there being done, the obligation to look after and take care of himself as to all obvious or manifest dangers in the details of the work is upon the servant.

Austin v. M. & O. R. R. Co., 134 Miss. 226, 99 So. 3; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Barron Motor v. Bass, 167 Miss, 786, 150 So. 202; Eastman Gardiner Hd. Co. v. Chatham, 168 Miss. 471, 151. So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443.

The servant assumes all risks that naturally inhere in the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant.

Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Brown v. Coley, 168 Miss. 778, 152 So. 61.

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.

Hope v. N. C. & M. R. R. Co., 98 Miss. 822, 54 So. 369; A. & V. R. R. Co. v. White, 106 Miss. 141, 63 So. 345.

When a servant is injured by reason of a defect in a place of work furnished by the master, one of the essential elements of negligence on the part of the master is knowledge, actual of constructive, of the existence of the defect in the place of work; consequently the burden of proving such knowledge is upon the servant, and he cannot recover damages for his injuries without making such proof.

Hope v. N. C. & M. R. R. Co., 98 Miss. 822, 54 So. 369; A. & V. Ry. Co. v. White, 106 Miss. 141, 63 So. 345; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Gulfport Creosoting Co. v. White, 157 So. 86; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61.

It is well settled that the appellant cannot be legally held to be liable in this case, in any event, unless it is legally found that it failed to exercise ordinary care in the premises; and that ordinary care of a reasonably prudent man does not demand that he should prevision or anticipate ah unusual, improbable, or extraordinary occurrence, though such happening is within the range of possibilities. Probability arises in the law of negligence when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected, Remote possibilities do not constitute negligence from a judicial standpoint.

I. C. R. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 33; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; C. & G. R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

To hold the appellant liable in this case will be to legally requite a master to prevision and anticipate that experienced employees, in the performance of ordinary work within the range of theft experience, will voluntarily commit acts of negligence which will result in injuries to themselves, and illegally force the master to become the obligatory guardian of each of his servants.

Where, as a part of the duties under his employment, it is the duty of a servant to so perform his duties that the place of work will be maintained in a reasonably safe condition, and he negligently fails to do so, and, as the proximate result of such negligence on his part, he sustains injury, he cannot attribute his own negligence to the master and thus profit by his own wrong.

Hegwood v. Newman Lbr. Co., 132 Miss. 487, 96 So. 695; Waterman-Fouke Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759; Edward Hines Lbr, Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Eastman Gardiner Hwd. Co. v. Chatham, 168 Miss. 471, 151 So. 550.

The master is not bound to give instructions to a servant who, from intelligence and experience, or knowledge, is able to appreciate the dangers of the employment he has undertaken.

...