Hardy v. Turner-Farber-Love Co., Inc.

Decision Date20 October 1924
Docket Number24290
Citation101 So. 489,136 Miss. 355
CourtMississippi Supreme Court
PartiesHARDY v. TURNER-FARBER-LOVE CO., INC. [*]

Division A

1. MASTER AND SERVANT. Failure to furnish oiler safe place to work held jury question.

In action for death of oiler of sawmill machinery, whether employer had sanctioned dangerous method of oiling machinery so as to be liable, on theory that he failed to furnish oiler safe place to work, Held for jury.

2 NEGLIGENCE. Contributory negligence goes only to diminish damages.

Contributory negligence of servant goes only to diminish damages.

3. MASTER AND SERVANT. Employee assumes only ordinary hazards. Employee assumes only such risks as are ordinary hazards of employment.

4. MASTER AND SERVANT. Employer who acquiesced in dangerous method of work liable for employee's death.

Employer who knows that an employee habitually oiled machinery from within compartment surrounding machinery, instead of from outside of compartment, but acquiesces therein for a long period of time, is liable for employee's death, on theory that he failed to furnish him a safe place in which to work.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Suit by Beulah Hardy against the Turner-Farber-Love Company, Inc. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed, and case remanded.

Bell & White, for appellant.

There is but one point in this case. Did the act of the defendant in permitting, through successive years, its servants to use this dangerous place for oiling, recognized by every one as being dangerous, neglect its duty towards these ignorant negroes? If so, the question of the damage should have been submitted to the jury. Furthermore, the question should have been submitted to the jury as to whether or not, under the facts, the defendant had been negligent, even though the neglect of the deceased in choosing an unsafe method contributed to the injury.

In support of our position, we submit the following authorities: Sea Food Co. v. Alves, 117 Miss. 1, which we submit decides the instant case: I. C. R. R. Co. v. Skinner's Adm'x., 197 S.W. 552; L. & N. R. R. Co. v. Payne's Adm'r., 197 S.W. 928; Larkin v. New York Telephone Co., 114 N.E. 1043; Whitaker v. D. & H. Canal Co., 27 N.E. 1043; Broadfoot v. Shreveport Cotton Oil Co., 35 So. 643; St. Louis, I. M. & S. Ry. Co. v. Schultz, 171 S.W. 876; Merrill v. Oregon Short Line R. Co., 81 Pa. 85; Terrell v. City of Washington, 73 S.E. 888.

From the foregoing authorities we submit that appellant's position is correct, that this case should have been submitted to the jury under proper instructions, that the question as to whether or not the master could have known of the dangerous method of oiling by reasonable care and diligence should have been submitted to the jury as well as the question as to whether the deceased contributed by carelessness to the injury, and, therefore, diminished the damages.

The testimony shows that this darkey, if ever warned at all of the danger of his method, or if advised as to how to properly perform his duties, received such warning, or advice, seven years before this accident; that his helper and successor never received it; that for seven years he performed this dangerous work several times a day with the shining, flying band of death right at him, with fellow employees all seeing him, with ample opportunity for his employer to observe what he was doing, and never a step taken to stop him, or safeguard his work at that time. The door to the compartment could have been locked with a twenty-five cent padlock; a fifty cent piece of pipe could have been put in from the outside to conduct the oil to the pulley and a human life safeguarded, but none of this was done. Even if it were feasible to crowd in between the compartment wall and the sawyer, we all know that no darkey is going to do that, when the sawyer is a white man, if it can possibly be avoided. We do not believe that the duty of the master was discharged by giving instructions seven years before, granting for the sake of argument that it was given, followed by seven years of neglect and acquiescence.

Boddie & Farish, for appellee.

Counsel for appellant have expended much unnecessary time and labor in the citation of authorities to show that the master is required to furnish safe means and appliances for the servant to do his work with. That is elementary; but the question is, did this appellee comply with that duty? There is not a particle of evidence in the case to show that the master failed in that duty, but on the contrary, all of the witnesses testified that there was a safe place provided and that the decedent had used that place to oil the machinery, knew that it was safe, and knew that it was very dangerous to go into the little room or behind the partition to do his work. What else should appellee have done to protect this adult employee of seven years' experience? Should they have had a man stand there with a club to keep him from going into it? See 18 R. C. L. 565. The master cannot be held liable where an employee in utter disregard of his own safety, and in disobedience of repeated instructions and warnings by the master, voluntarily goes into a place of known danger and is injured.

Argued orally by Percy Bell, for appellant.

OPINION

HOLDEN, J.

The appellant, Beulah Hardy, sued the appellee, lumber company, for damages for the death of her husband, Oliver Hardy, who was killed by a band saw in the sawmill of appellee, while employed as an oiler of the machinery. The lower court granted a peremptory instruction against liability, from which judgment this appeal is prosecuted.

The main ground for recovery is that the lumber company failed to furnish a reasonably safe place for...

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