Hammontree v. Cobb Const. Co

• Decision Date: 22 January 1934
• Docket Number: 30940
• Court: Mississippi Supreme Court
• Parties: HAMMONTREE v. COBB CONST. CO

152 So. 279

168 Miss. 844

HAMMONTREE v. COBB CONST. CO

No. 30940

Supreme Court of Mississippi

January 22, 1934

Division B

MASTER AND SERVANT.

Master need establish safe system of doing work and promulgate and enforce rules for observance of system, only when, in addition to being dangerous, work is complex and conditions which may arise are uncertain and obscure.

2. MASTER AND SERVANT.

Master is not liable where he follows customary system generally employed by prudent men engaged in same business unless unreasonable unsafeness in system is so evident that impartial persons could not well be in disagreement on the issue.

3. MASTER AND SERVANT.

Master is not insurer of servant's safety, but is required only to exercise reasonable care.

4. MASTER AND SERVANT.

Where foreman in charge of subgrade crew working ahead of paving concrete mixer was struck by truck, carrying material to mixer, while truck was backing, with horn blowing, between forms, contractor held not liable because of failure to furnish watchman or turntable for trucks at mixer.

5 NEGLIGENCE.

"Negligence" is failure to take such reasonable care as is taken or should be taken by experienced and prudent men.

HON. J D. FATHEREE, Judge.

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

Action by Mrs. M. R. Hammontree against the Cobb Construction Company. From an adverse judgment, plaintiff appeals. Affirmed.

Affirmed.

Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

An employer is not relieved from responsibility of an employee, who has been injured in consequence of his failure to make the working place reasonably safe, by proof that he employed a competent superintendent or foreman, supplied him with the necessary appliances, and gave him all needful instructions for the purpose.

Baird v. Reilly, 92 F. 884, 35 C. C. A. 78; Magdaline (D. C.), 91 F. 798.

Hammontree could not perform his duties of inspection and direction of the work and laborers except upon the road and in a place where he was likely to be struck by a passing truck. It was reasonably to be anticipated that just such an accident as did happen would happen.

Kelly v. Miller, 33 S.W.2d 662; Evans v. Brown, 106 So. 281; Wilbe Lbr. Co. v. Calhoun, 140. So. 680; Hercules v. Williamson, 110 So. 244, 145 Miss. 172; Smith v. Galley, 280 F. 972; Bradas v. Voght Machine Co., 194 S.W. 1044.

The master, also, did know, or ought to have known, that drivers of backing trucks through a twenty foot space, endeavoring to avoid running over the forms on one side of them, would stay at varying distances from the forms. No rule or regulation was established as to how far the backing trucks were to remain away from the forms. They were simply required not to run over the forms.

There was the distracting noise of the mixer going on; and the master certainly owed the lookout duty to Hammontree under the facts of this case.

Evans v. Brown, 106 So. 281, 141. Miss. 346.

The duty to warn a servant at work under the circumstances and in such a place as Hammontree was required to work, is a nondelegable duty of the master. The appellee cannot excuse itself from the failure to provide for adequate warning of the deceased, Hammontree, from the danger of the passing fleet of trucks on the theory that a driver of the trucks was a fellow servant of Hammontree.

Simmons v. Kroger Grocery, 6 S.W. 1023; Geneva Mill Co. v. Andrews, 11 F.2d 924; Davidson v. Riley, 17 F.2d 345; Motor Wheel Co. v. Dodson, 23 F.2d 282.

In Hercules Powder Co. v. Williamson, 110 So. 244, 145 Miss. 172, evidence as to whether a system adopted by an employer, for blasting, stumps, was unnecessarily dangerous was held for the jury.

If appellee preferred to continue this particular method of doing the work and backing the trucks to the concrete mixer, and thought it more practical than to have a turntable because of possibly added expense and delay in operating the turntable, it, should have resorted to the simple and inexpensive expedient of employing a lookout to protect Hammontree and the gang of laborers from the peril of the backing trucks. This could easily have been done by employing one employee with no other duty than to watch out for the safety and give warning, going before the backing trucks as they came through the space where the other employees were at work.

Smith v. Galley, 280 F. 972; Jefferson v. Denkman Lumber Co., 148 So. 237; Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Reynolds West Lbr. Co. v. Taylor, 23 F.2d 36; C. M. & St. P. R. R. v. Moore, 166 F. 663, 23 L. R. A. (N. S.) 962.

Gilbert & Cameron, of Meridian, for appellee.

One cannot speculate on rights that are in conflict with the facts. One cannot inpugn a system when the very conditions he contends for existed at the time.

If the business is complex the employer must promulgate adequate rules, in other words instruct and warn his employees. If the dangers of the work are not open and obvious he must instruct and warn his servants; if the necessary and ordinary hazards of the employment be open and obvious he does not have to point out the obvious.

A. L. I. Restatement, Agency, Comment D, under section 471; 39 C. J. 709, sec. 909; Railroad v. Hullum, 119 Miss. 229, 80 So. 645.

One isolated casualty does not condemn a system.

39 C. J. 345, sec. 466; International, etc. v. Carter, 121 Miss. 103, 83 So. 413; Clyber Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235.

If the extra-hazardous character of the employment incident to the work is assumed, the ordinary hazards are necessarily assumed. Nor is it negligent not to employ the safest known or newest appliances.

39 C. J., secs. 907-8; Howd v. R. R., 50 Miss. 178; Hatter v. R. R., 69 Miss. 642; Kent v. R. R., 77 Miss. 494; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v. Oil Co., 133 Miss. 248, 97 So. 546; Austin v. R. R., 134 Miss. 226, 98 So. 3; Lambert v. R. R., 152 Miss. 450, 120 So. 177; Vehicle Woodstock v. Bowles, 158. Miss. 346, 128 So. 99; Sufferman v. Leach, 161. Miss. 853, 138 So. 563; Mitchell v. Brooks, 165 Miss. 862, 147 So. 660.

Conformity to common practice, method and system in universal use is not culpable unless it violate some statute or express rule of law.

Sufferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock v. Bowles, 158 Miss. 346, 128 So. 99; Jones v. R. R., 99 Miss. 547, 44 So. 813; Mitchell v. Brooks, 165, Miss. 826, 147 So. 660.

The servant does not, assume, under the code, the negligence of the master; but the burden is on the servant to show such negligence. There was no such proof in this case, and the, testimony being without conflict, there is no inference of negligence.

Argued orally by R. E. Wilbourn, for appellant, and by V. W. Gilbert, for appellee.

OPINION

Griffith, J.

Appellee is engaged in general road construction work and on the occasion in question was laying a concrete public highway, twenty feet wide, from the Alabama line westward towards the city of Meridian. The principal machine used in this work is a large concrete mixer into which is fed, every minute and a quarter, a batch of material consisting of seven sacks of concrete, one thousand four hundred pounds of sand, and two thousand seventy pounds of gravel. This mixer is placed in the middle of the twenty foot space to be paved, and, as the mixer deposits the mixed paving material upon the subgrade, there to be properly spread by the curing or finishing crew, the mixer, by means of a tractor device with which it is equipped, progressively recedes from the laid pavement and in the direction towards which the work is progressing. The subgrade over which the mixer recedes, or more properly speaking progresses, is, of course, prepared in advance, and the highway commission requires the advance preparation of the subgrade to be in a finished condition, all properly leveled and rolled by a five-ton roller, and with steel forms in accurate and final position twenty feet apart on each side, for at least three hundred feet ahead of the mixer. The batches of material are brought to the mixer by large motor trucks, which back up to the mixer and dump their loads into the receiving scoop of the mixer. Because of the necessary size and length of the trucks, they cannot turn around at the mixer, nor can they back in near the mixer, for this would dislocate the steel forms on the side which at that location must be kept absolutely in true and accurate position.

This necessitates that at an available place ahead of the mixer and, if possible beyond the three-hundred-foot finished subgrade, there shall be provided a turn in for the trucks, that is to say, a place where the trucks can turn around, back into an opening in the forms, and thus get between the forms and upon the twenty-foot prepared roadway, and thence back down to the mixer, whence, when the load is dumped into the mixer, the trucks proceed driving forward on their their right-hand side of the twenty-foot roadway to the turn in, and there make their exit. In backing down to the mixer, the truck driver is required to keep his truck on the right-hand side of the road as relates to the direction towards which the truck is then backing, and to see to it that he does not drive against the outside forms which must not be there disturbed, and to constantly blow his horn while backing. This requires that the truck driver constantly look back over his left shoulder and on that side, which, of course, prevents him from seeing...