Hand v. Boatner

• Decision Date: 27 November 1922
• Docket Number: 22701
• Citation: 94 So. 162,130 Miss. 292
• Court: Mississippi Supreme Court
• Parties: HAND v. BOATNER

94 So. 162

130 Miss. 292

HAND v. BOATNER

No. 22701

Supreme Court of Mississippi

November 27, 1922

1. MASTER AND SERVANT. Proof of allegations of negligence essential. In a suit for damages against the owner of a sawmill by an employee, where the alleged negligence is a defective construction of the mill, and a failure to furnish the employee with proper appliances for doing the work, the proof must sustain the allegations in the declaration either as to a negligent and improper construction of the mill or a negligent failure to furnish proper appliances with which to do the work.

2. MASTER AND SERVANT. Proof held insufficient to sustain allegation of improper construction of mill.

Proof which merely shows a construction of the mill, but is silent as to whether it is properly or improperly constructed, is not sufficient to sustain the allegation of an improper construction.

3. MASTER AND SERVANT. Failure to furnish appliance held not negligence.

Proof which shows that an experienced employee may use an appliance for doing certain work, but that it would be more dangerous to others for an inexperienced employee, does not prove negligence on the part of the master in failing to furnish the inexperienced employee with this appliance.

HON. G WOOD MAGEE, Special Judge.

APPEAL from circuit court of Lamar county, HON. G. WOOD MAGEE Special Judge.

Action by Clayton Boatner, by next friend, W. L. Boatner, against James Hand. From a judgment for plaintiff, defendant appeals. Reversed, and judgment for defendant.

Reversed.

Tally & Mayson, for appellant.

The real foundation of this action is the averment that the appellee was injured by working on a saw carriage while it was running and while it was propelled by the dangerous agency of steam. Under no other theory could the case have gone to the jury. This court has lately held, however, that a saw carriage is not a railroad within the contemplation of section 4056, Code of 1906, section 6684, Hemingway's Code, and that the fact that one was injured by the operation of a saw carriage did not make a prima-facie case against the employer. Simms v. National Box Company, 91 So. 194.

The defendant's peremptory instruction should have been given also for the reason that there is no proof whatever that the mill was improperly constructed or that the appellee should have been provided with a hook or some other sort of tool to aid him in his work. With reference to the first averment of negligence, that is, respecting the charge that the mill was improperly constructed, neither the appellee nor any other person undertakes to point out in what respect the construction was improperly made or how it could have been bettered if it be conceded that it was not properly erected in the first instance. The testimony of the appellant and the witness Hartfield is absolutely undisputed and stands out in bold relief in the record as the only evidence with reference to construction.

Should hooks have been furnished? The appellee has no testimony whatever in the record that hooks should have been furnished him as an aid in the performance of his duties. He undertook to show that there was a usage to the effect that hooks were furnished hands who worked in the capacity he labored in. The only effort to establish that proposition is found on page 10, stenographer's record, which is as follows:

"Q. I want you to state whether or not that was a little mill similar to the one where you were working?

"MR MAYSON: We object.

"THE COURT: Objection sustained. What is the purpose?

"Q. The purpose is to show that under similar conditions they were using hooks to pull them out.

"THE COURT: Objection sustained.

"MR HATHORN: We except.

"Q. All right, they didn't furnish you any hook or anything to pull it out with? A. No, sir, they didn't.

"Q. We would like for the record to show that at a similar mill we offered to prove and to show that at similar mills they furnished a hook with which to trip slabs, for this same work, and we were not permitted to do it and we except."

The fact that a hook might have been used at another mill is no criterion as to whether it should have been used at the defendant's mill. There was then absolutely no evidence whatever on the part of the plaintiff, the appellee, that hooks should have been used. He utterly failed to establish a custom or usage that would be a usage of course in the instant case. There is no suggestion that the appellant knew of a usage of that effect or that one had been established by the mills in general or in that community.

"A usage to be binding must be either shown to be known to the party who is sought to be affected thereby or so general and so generally known as to justify the presumption that the party contracted with reference to it." 124 American State Rep. , page 60; 150 Ala. 122; 43 So. 479, Greenleaf on Evidence, Sec. 251; 17 Corpus Juris, sec. 18, page 458.

Not only did the appellee fail to prove that he should have been equipped with a hook or some other tool but the appellant showed conclusively that it was absolutely dangerous both to the appellee and to others working along with him to have provided him with an instrumentality of that kind.

Rawls Hathorn and W. J. Hathorn, for appellee.

Appellant contends that we failed to show an improper construction, and therefore he should have had a peremptory instruction. He bases his assertion on the fact that appellee nor any of his witnesses stated in so many words that it was an improper construction, and that appellant and his witnesses testified that it was properly constructed. It is true that appellee did not say in his testimony that the mill was improperly constructed, and if he had been asked that question by us he would not have been permitted to answer it, for at most it would have been an opinion. The question of whether or not the extending of the carriage blocks some four inches out and over the roller bed and the roller bed boxes, and so close to it that one's hand would be mashed if caught, was a proper or improper construction, was one of fact to be determined by the jury. We did what it was proper for us to do, and the only thing we could do under the law, and that was to show how the mill was constructed, how the work had to be performed, that it was dangerous, and that appellant was injured, and then the jury had to say, as a question of fact, whether or not it was a proper construction, and whether or not, if an improper construction, this was the proximate cause of appellee's injury.

It appears, therefore, that the testimony as to whether hooks were in use at this mill, and as to whether they were dangerous and why, was in hopeless conflict, and again we submit that it was a question for the jury to say whether or not appellee had sufficient experience to use the hook without danger. Hartfield does not attempt to say how much experience...