Hinton Bros. Lumber Co. v. Polk

• Decision Date: 25 February 1918
• Docket Number: 19915
• Citation: 78 So. 179,117 Miss. 300
• Court: Mississippi Supreme Court
• Parties: HINTON BROS. LUMBER CO. v. POLK

78 So. 179

117 Miss. 300

HINTON BROS. LUMBER CO. v. POLK

No. 19915

Supreme Court of Mississippi

February 25, 1918

APPEAL from the circuit court of Lamar county, HON. A. E WEATHERSBY, Judge.

Suit by J. R. Polk against the Hinton Bros. Lumber Company. From a judgment for plaintiff, defendant appeals.

Appellant is a corporation engaged in the manufacture of lumber, and appellee was one of its employees, who was injured, as he alleges, because of appellant's negligence. In connection with appellant's other machinery it operates a planing mill in which there are six planing machines for the dressing of lumber after it has been sawed. These machines are placed in a line with and at a distance of ten to fifteen feet from each other. Behind these machines and running at right angles therewith is a "lumber run," about ten feet wide consisting of three two-inch "turtle back" steel chains. These chains run either in grooves or on top of the floor, which does not clearly appear from the evidence, and move slowly forward and convey the lumber, after it comes from the planers, to the grader pit, where it is assorted and then conveyed to other portions of the building. The floor, between each of these planing machines and the first chain, and then continuing across the lumber run between each of the chains, as covered with a strip of sheet iron or tin twenty-four inches wide. This tin or sheet iron slopes on each side of the chains, so as to bring the ends thereof next to the chain about on a level therewith. There was an open space between each planer and the lumber run, and also on the side of the lumber run opposite the planers, on which employees could stand while keeping the lumber from becoming tangled when being conveyed by the lumber run. The lumber, as it came from the planing machines, was shoved across the lumber run; and this tin or sheet iron was placed there for the purpose of enabling this to be accomplished without the lumber being obstructed by the chains, but in the cross-examination of appellant's foreman appear the following questions and answers:

"Q. That chain is kind of an oval shape isn't it, and the side where the lumber strikes it comes down on an incline this way? A. Yes, sir. Q. It is fixed that way so that the lumber would push over on the chain? The purpose of fixing it that way was so that the lumber would push over the chain in event that it didn't happen to have that tin there? A. Yes, sir. Q. So that it would just slip over there, whether it had a tin or not, that was the purpose of it? A. Yes sir."

These strips of sheet iron, because of the continual passing over them of the lumber, soon became very slick. The lumber, unless kept straight by employees stationed at the run for that purpose, while being conveyed thereon would become tangled and would drift into piles. Two employees were stationed at the run, one on each side thereof, for that purpose. Two of these planing machines were equipped with tilting tables; that is, with a board extending from the machine and across the lumber run and so adjusted that when a piece of lumber was shoved from the planer thereon it would tilt automatically and place the lumber across the run. Appellee had been employed by appellant for some time, and seemed to discharge whatever duties appellant's foreman imposed upon him. On the occasion in question he was directed by the foreman to take the place of one of the men stationed at this lumber run and assist in keeping the lumber straight thereon. While so engaged, the man working with him on the opposite side of the run left temporarily, and, while he was away, the lumber became tangled on his side of the run--that is, on the side opposite that on which appellee was stationed--whereupon appellee walked across the chains for the purpose of straightening the lumber, and stepped upon the sheet iron, slipped thereon, fell and was injured. The circumstances surrounding the accident can best be stated in appellee's own language in answer to questions propounded to him by

"Q. What were you doing at the time you received your injury? A. I was straightening the lumber there in Mr. Crook's place. It takes two men there, and he wanted to step aside, and I stepped up there to straighten it while he stepped to one side, and I had to go across the chain to where the lumber was crooked, and when I got up there where it was crooked, and straightened it, and looked back, it was crooked at the other end, and I started back, and when I went to turn my foot slipped, and I fell, and my hip hit the chain. Q. How come your foot to slip? A. I stepped on that tin, and it was just as slick as it could be, and my foot slipped out from under me, and I fell and hurt my hip. Q. Tell the jury whether you could have gotten to that lumber to have moved it without stepping on that tin. A. Not on that side of it. Q. Tell the jury whether that was the side you were required to work on. A. Well I was assisting for the other man down there. That was not my side, but it was crooked up there, and nobody there to attend to it, and I had to go across there, and I had to cross on that tin on the way across. There was no other way of getting across there without going way around out of my way, and I didn't have time to do that . . . Q. Now from the place where you stepped and slipped, you could have stepped about two steps and got out on the floor and went down to that, couldn't you, by taking about two steps out of the way? A. No, you see I had to run in there between the two chains. Q. Well, you could have stepped out there to the edge and walked down and walked back in, couldn't you, by just walking a little more? A. Yes, by taking some time I could. Q. By taking about one step that way and going down one and back one you could have gotten to it without crossing there? A. I could have by going way out of the way. . . . Q. Now you say there was another fellow whose duty it was to straighten the other side? A. Yes, sir; it was my place to straighten it out on one side, and he was on the other. Q. Did Mr. Hubert (appellant's foreman) tell you to take both of those fellows' places? A. No, he didn't tell me to take their places, but that lumber was tangled, and there was nobody there to untangle it. He sent me there to take Mr. Crook's place. Mr. Sam Slade's son, Steve Slade, was on the other side. Q. So the lumber that you went to straighten. out was on Mr. Slade's side where he worked? A. I had been there, and had straightened that out, and started back to straighten mine. Q. How come you over there, though, was to do the Slade boy's work? A. There was nobody over there to do it, and it was going to get to the grade crooked. Q. Now Mr. Hubert didn't tell you to do Slade's work too, but he just sent you to take Crook's work? A. Yes, sir; I asked him, 'Must I take Mr. Crook's place?' and he said, 'Yes.' He didn't tell me to take Mr. Slade's place, but of course he would have it to do; it was all tangled up, and there was nobody there to untangle it and get it straight. A. But he didn't tell you to take Slade's place; he told you to take Crook's? A. Yes, sir. Q. And you had often, you say, taken that man's place? Had you ever taken Slade's place before--I mean when you were working there in their places? A. I don't recollect exactly about taking Mr. Slade's place, but I have taken the places of the boys working there. Q. In other words, you have worked all along that chain? A. Yes, sir. . . . Q. While you were working in Mr. Moran's place you would have to take the others' places often also? A. Yes, sir; nearly every day. A great many times I did. That was not the first time I had took that job for Mr. Crook and the others. there. I had been helping them ever since I had been there. Q. So that job, so far as the job was concerned, was not a new job to you? A. No, sir. Q. And the lumber would get crooked, and you would have to straighten it often--that was your business when you were holding that job? A. Yes, sir. Q. And if it got crooked on the side where you were you could straighten it there? A. Yes, sir. Q. But if it tangled up over across there on the other side you would have to go across over there? A. Yes, sir; but when there were two men one was on each side, but when one man stepped off if it got crooked the other man would have to step across there. Q. You had crossed those chains before? A. Yes, sir. Q. Because it would get crooked there often? A. Yes, sir; whenever it would get crooked I would go over there and straighten it."

Judgment reversed.

COUNSEL:

Salter & Hathorn and Welch & Welch, for appellant.

Hall & Hall and J. W. Cassedy, for appellee.

SMITH C. J. HOLDEN, J., ETHRIDGE, J. dissenting.

OPINION

SMITH, C. J.

(After...