Hardaway Contracting Co. v. Rivers

• Decision Date: 09 May 1938
• Docket Number: 33153
• Citation: 181 Miss. 727,180 So. 800
• Court: Mississippi Supreme Court
• Parties: HARDAWAY CONTRACTING CO. v. RIVERS

180 So. 800

181 Miss. 727

HARDAWAY CONTRACTING CO. v. RIVERS

No. 33153

Supreme Court of Mississippi

May 9, 1938

APPEAL from the circuit court of Neshoba county, HON. D. M ANDERSON, Judge.

Action by J. H. Rivers against the Hardaway Contracting Company to recover damages for injuries sustained through defendant's alleged negligence. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and Richardson &amp Sandford, of Philadelphia, for appellant.

The learned trial court erred in refusing the appellant's request for a directed verdict.

The first proposition to be dealt with in our argument in support of appellant's contention that it should have had a directed verdict in the lower court is that appellant was in nowise negligent in not providing additional force to help appellee in the work he was performing when injured; that appellee's injury was the result of his voluntary action in doing that which he says he knew he could not do; and doing it voluntarily and without coercion on the part of the appellant or the latter's superior servants.

Testimony of witnesses on the subject of weight which is based on estimate and guess work must yield to testimony of actual weight.

S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295.

Appellee's own testimony as well as his witnesses conclusively shows that the appellee was doing that which he knew he could not do, and that he acted voluntarily and without coercion on the part of the appellant.

Cobb Bros. v. Campbell, 176 Miss. 695, 170 So. 283; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 150 80. 792; Batson Hatten Lbr. Co. v. Thames, 147 Miss. 799, 114 So. 25; Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S.W. 964.

The employer is not to be held negligent for inadequacy of force to do a specific work, if there was a safe and reasonable way to do it with the force in hand. He may reasonably assume the foreman in charge will adopt such plan as to conserve his own safety.

Seymour v. Holman, 158 So. 525; 18 R. C. L. 703, par. 187; 17 Am. & Eng. Ann. Cases 241.

The law is that the master is as much entitled to expect that a servant will exercise reasonable care in the use and operation of a tool or appliance in the normal manner to avoid injury as the servant is entitled to expect that the master will use reasonable care to furnish him a reasonably safe tool or appliance.

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

The learned trial court erred in overruling appellant's continued objection to appellee's evidence and to the witnesses', Rash, Banks and Hunter, evidence to the effect that they told Mr. Clark, the foreman, that the mat was too heavy for them to lift.

We submit this evidence constitutes a fatal variance with the allegations of the declaration, and both the learned trial court, as well as appellee and his attorney, were continuously placed on notice thereof by numerous objections interposed and the reasons specifically assigned.

Sec. 568, Code of 1930; True-Hixon Lbr. Co. v. McDonough, 154 Miss. 720, 122 So. 855; Chism Bros. v. Alcorn, 71 Miss. 506, 15 So. 73; Shantin v. Bd. of Comrs., 160 La. 1036, 107 So. 897; Georgia Pacific Ry. Co. v. Baird, 76 Miss. 521, 24 So. 195.

The court erred in allowing appellee and his witnesses to testify over the objection of the appellant to the weight of the mat, and to what they considered a sufficient number of employees necessary to lift the mat.

We submit that the evidence was not competent as it called for a mere opinion, or conclusion, on the part of the witnesses, and that it was highly objectionable and prejudicial to the appellant.

The court erred in giving instruction No. 5 for the appellee in that it conflicts with instructions given for the appellant, and so misled the jury as to cause them to return a verdict not responsive to the law given to them by the court.

Y. & M. V. R. R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742.

The court erred in refusing to grant appellant's motion for a mistrial.

Avery v. Collins, 171 Miss. 636, 157 So. 695.

Percy M. Lee, of Forest, for appellee.

The appellant was personally directing the work and even though the place of work and conditions as to safety are constantly changing, the master cannot escape his liability where he assumes personal direction of the work.

39 C. J. 348.

The appellant, as master, selected the way and manner of doing the work, and where the master does this, he is liable for the resulting injuries.

C. & R. Lbr. Co. v. Crane, 99 So. 753.

Where a master employs servants to act in concert in the performance of their duties, it is the nondelegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; and if he fails so to do, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury.

Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 148 So. 237.

We submit that the case of Goodyear Yellow Pine Co. v. Mitchel, 149 So. 792, is in line with the proposition submitted in the case at bar because there, as here, the servant was working under compulsion.

Everett Hardware Co. v. Shaw, 172 So. 337.

Pursuant to a per curiam request by the court for a brief for appellee in reply to that portion of the brief for appellant in support of the proposition that the "testimony of witnesses on the subject of weight which is based on estimate and guess work must yield to testimony of actual weight," while we thought that this proposition had so little foundation in fact, and for that reason, ignored it, we are glad to state our position relative thereto. We propose to demonstrate to the court that, according to the record, there is no basis on which this proposition can be maintained.

Assuming that the witness, F. J. Phillips, was disinterested, of what probative value is his evidence, when he could not say how wide, how thick, or how long the timber was, nor whether it was oak or pine, nor whether it was green or dry? He does say that he weighed some kind of a timber and its weight was 410 pounds.

With Clodie Wilson, having worked for the company, still working for the company, expecting to keep working for the company, earning $ 18 a week from the company, failing to deny that he was taking the part of the company, and with all of the conflicts between his evidence and that of the appellee, surely it cannot be said that he was a disinterested witness. In addition, it was not shown that the timber which weighed 410 pounds was the timber which injured Rivers, and furthermore, Wilson did not even testify that this timber was used on the job. So where is there any testimony of the actual weight of the timber which Rivers assisted in handling?

The appellee's evidence shows that the timber which he was handling at the time he was hurt had 192 board feet in it. If we multiply this 192 by 7.1 plus, we find that the timber weighed 1363 plus pounds.

OPINION

Smith, C. J.

The appellee, an employee of the appellant, and two others of its employees, were engaged under the direction of the appellant's foreman in lifting and moving one end of a wooden mat, which fell and injured the appellee because, as he alleges, of the appellant's negligence in not furnishing a sufficient number of employees to lift and move the mat. He recovered a judgment against the appellant for the damages he thereby sustained. The several assignments of error will be disposed of seriatim.

1. After the jury, when being impaneled, had been accepted by the appellee, and tendered to the appellant, its counsel orally requested the court to discharge the jurors impaneled, and grant it a mistrial. The ground of this motion is that, when the jury was tendered to the appellee, his counsel interrogated them at considerable length "as to whether any of them had ever worked for, or been in the employ of, or worked with, any life or casualty insurance company"; which was calculated and intended to bring to the attention of the jury that the appellant held an insurance policy covering its liability to the appellee for the injury received by him. Whether error appeared in the examination of these jurors is not presented by this motion. That fact could only be made to appear in two ways: first, by a stenographic report of the voir dire examination of the jurors, which this record does not contain, disclosing objections to improper questions, and erroneous and prejudicial rulings thereon; or by a special bill of exceptions, so disclosing.

2. At the close of the evidence the court refused the appellant's request for a directed verdict. The appellant was engaged in the construction of a state highway, which was being hard surfaced. On the occasion in question the appellee, together with others of the appellant's employees, was engaged, under the direction of the appellant's foreman in charge of the work in "walking" a steam shovel, i. e., moving it along, and on the surface of, the road. The steam shovel was very heavy, and, in order to prevent it from injuring the newly laid surface of the road. it was necessary for it to move over wooden mats. These mats consisted of three 2x12x16 planks, fastened together lengthwise by means of cleats cut crosswise from similar planks. These cleats, according to appellee's evidence, were so placed as to cause the mat to be of the same weight as if constructed of six planks. These mats were placed in front of the shovel, and, as it progressed, mats over which it had passed were pulled by a tractor from the rear of the steam shovel to the front, and there placed in position crosswise...