Hercules Powder Co. v. Hammack

• Decision Date: 13 December 1926
• Docket Number: 26017
• Citation: 145 Miss. 304,110 So. 676
• Court: Mississippi Supreme Court
• Parties: HERCULES POWDER CO. v. HAMMACK. [*]

110 So. 676

145 Miss. 304

HERCULES POWDER CO.
v.
HAMMACK. ^[*]

No. 26017

Supreme Court of Mississippi

December 13, 1926

Division A

. (Division A.) [110 So. 676.]

1. MASTER AND SERVANT. Evidence held to show injury resulted from fellow servant's negligence, precluding recovery against employer. Evidence, in an action for personal injuries, held to show that injuries resulted from negligence of fellow servant, precluding recovery against employer: Hemingway's Code, section 6684, abolishing fellow-servant rule as to railroad operations, being inapplicable.

2. MASTER AND SERVANT. Law abolishing fellow-servant rule held inapplicable to corporations not operathing railroads described (Hemingway's Code, section 6684).

Hemingway's Code, section 6684, abolishing fellow-servant rule as to railroad operations and railroad employees, held inapplicable as to corporations not operating classes of railroads therein described.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Charles Hammack against the Hercules Powder Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Hannah & Simrall and T. J. Wills, for appellant.

The peremptory instructions requested by the appellant should have been granted. The evidence discloses that the injury to the appellee resulted solely from his [145 Miss. 305] own negligence or an unavoidable accident. Conceding for the sake of argument that the plaintiff's injury was caused by McLaurin's negligence, then his injury was the result of the negligence of a fellow-servant for which the master is not liable.

We think that the most that can be said for the plaintiff's case, and we do not think that this can be successfully urged, was that McLaurin might have assumed some authority over Hammack. A reference to the pages of the record will disclose that any assumption of authority by McLaurin over Hammack was made by McLaurin without any authority or direction so to do from the defendant or any of its foremen. Conceding that McLaurin did so assume to exercise some authority over Hammack, then this case falls squarely within the rule announced by Judge SYKES in Gulfport & Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340.

But even if we go a step further and assume that McLaurin was a sub-foreman over Hammack, then this case falls squarely within the rule announced in Petroleum Iron Works v. Baily, 124 Miss. 11, 86 So. 644, and the plaintiff still cannot recover.

When we view this case from another angle, we are again driven to the conclusion that the plaintiff cannot recover for the reason that he must be held to have assumed the risk of the very injury that he suffered. Austin et al. v. M. & O. R. R. Co., 134 Miss. 226, 99 So. 3.

This case should be reversed and dismissed.

Anderson & Anderson and John R. Tally, for appellee.

Appellant contends that conceding for the sake of argument that the plaintiff's injury was caused by McLaurin's negligence, his injury was the result of the negligence of a fellow-servant, for which the master is not liable. This same contention was made in the case of Hunter v. Ingram-Day Lbr. Co., 110 Miss. 744, and also in J. J. Newman Lbr. Co. v. Irving, 118 Miss. 59, with reference to [145 Miss. 306] the loader man who was operating the steam loader, in which case it was contended that the men working around the steam skidder, and especially the tonger man in the woods, were fellow servants and the court held that they were not. It might as well be contended that a section foreman has no authority to direct or control the men who work under him. The appellee in the instant case was under as much obligation to obey the instructions of the tractor man as if the president of the company, himself, had been standing there directing him in the performance of his labor. Any servant who has authority to direct another employee with reference to his work, is the superior of the servant required to take the instruction.

Appellant contends in its brief that the plaintiff's injury resulted from one of the ordinary dangers of the work which the appellee assumed. We say that is a mistake.

This case should be affirmed.

Hannah & Simrall and T. J. Wills, in reply, for appellant.

Counsel for appellee make a desperate effort to demonstrate that Hammack and McLaurin, who...