Herring v. Planters' Lumber Co

• Decision Date: 12 March 1934
• Docket Number: 31037
• Citation: 169 Miss. 327,153 So. 164
• Parties: HERRING v. PLANTERS' LUMBER CO
• Court: Mississippi Supreme Court

153 So. 164

169 Miss. 327

HERRING v. PLANTERS' LUMBER CO

No. 31037

Supreme Court of Mississippi

March 12, 1934

Division A

Suggestion Of Error Overruled April 9, 1934.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by O. M. Herring against the Planters' Lumber company. Judgment for the defendant, and the plaintiff appeals. Affirmed.

Affirmed.

Ross R. Barnett and P. Z. Jones, both of Jackson for appellant.

The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises, in a reasonably safe condition, and to give warning of latent or concealed perils.

20 R. C. L. 55, sec. 51; R. C. L. Perm. Sup., p. 4813; 20 R. C. L. 65, sec. 57; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 48 A. S. R. 547, 25 L. R. A. 686; 20 A. L. R. 202; Thompson's Commentaries on Negligence, secs. 968, 1012, 1013 and 1014; Clark v. Chambers, 3 Q. B. B. Div. 327.

The trial court was in error in ruling that there was no liability on Mississippi College and, therefore, there could be none on the Planters' Lumber Company.

1 Thompson's Commentaries on the Law of Negligence, sec. 6; Corby v. Hill, 4 C. B. (N. S.) 556, 140 Eng. Rep. 1209, 93 Eng. Com. L. R. 554; Bennett v. Louisville & N. R. R. Co., 102 U.S. 577, 26 L.Ed. 235; 11 Rose Notes on U. S. Rep., p. 149; 2 Rose, 1932 Sup., p. 1048; Crane Elevator Co. v. Lippert, 63 F. 942, 945; Wilbourne v. Charleston Cooperage Co., 90 So. 9, subheads 1 and 2, at page 10; Kress v. Markline, 77 So. 858, 117 Miss. 37, Ann. Cas. 1918E, 310; John Clark et ux v. Rd. I. Elec. Lighting Co., 16 R. I. 463; Hanson v. Spokane Valley Land & Water Co., 107 P. 863; Thompson's Commentaries on Negligence, sec. 1012; Wharton's Law of Negligence, sec. 349; 29 Cyc. 466.

Butler & Snow, of Jackson, for appellee.

It may happen that the employer knows or should know of circumstances of which the contractor is exclusively ignorant and which make the work or the manner in which it was directed to be done unreasonably dangerous. In such a case the contractor would not be subject to liability since he, as a reasonable man, would not realize the risk involved in his conduct. On the other hand, the employer, as a reasonable man, should realize the danger and is negligent in directing the work to be done.

American Law Institute Restatement of the Law of Torts, Tentative Draft No. 6, p. 14; Primmins v. United Engineering & Construction Co., 96 N.Y.S. 1032; 39 C. J. 1312.

After a contractor has turned over the work and it has been accepted by the proprietor, the contractor incurs no further liability to third persons by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in a defective condition, is shifted to the proprietor.

City of Vicksburg v. Holmes, 106 Miss. 234, 66 So. 984.

There was no inducement whatever on the part of the college authorities to the public to use its campus, but at most a mere passive acquiescence therein.

Illinois Central R. R. Co. v. Arnola, 78 Miss. 787; Y. & M. V. R. R. v. Cox, 132 Miss. 564.

Argued orally by Ross R. Barnett, for appellant, and by C. B. Snow, for appellee.

OPINION

Smith, C. J.

The appellant sued the appellee for damages for personal injuries sustained by him because of alleged negligence of the appellee. At the close of the evidence, the court below sustained a motion for the exclusion thereof, directed the jury to return a verdict for the appellee, and there was a judgment accordingly. The evidence, in substance, is as follows:

Mississippi College owns and operates a male college at Clinton, Mississippi, with an extensive campus on which its buildings are situated, and through and around which are several concrete walks. This campus abuts on a public road, and one of its concrete walks extends to and connects with this road. This walk is used by the students and other persons entering the college grounds, and for a number of years with the knowledge of, and without objection by, the college, by persons living beyond the campus for the purpose of reaching their homes from the road with which the walk connects, one of whom was the plaintiff in this case.

The appellant contracted to sell five hundred brick to the college and to deliver them on the campus. The brick were delivered to the college between four-thirty and five o'clock in the afternoon, by one of the appellee's trucks, the driver of which, by direction of the superintendent of the college grounds, stacked two hundred fifty of them on this concrete walk. The brick were eight inches long, and were stacked in two tiers, two brick or sixteen inches in width, the stacks being, according to the truck driver, one and one-half feet, and, according to the appellant two feet high. According to the...