Holliday v. Fulton Band Mill

• Decision Date: 08 July 1944
• Docket Number: No. 10892.,10892.
• Parties: HOLLIDAY v. FULTON BAND MILL, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

142 F.2d 1006 (1944)

HOLLIDAY v. FULTON BAND MILL, Inc.

No. 10892.

Circuit Court of Appeals, Fifth Circuit.

June 7, 1944.

Rehearing Denied July 8, 1944.

Jas. A. Cunningham, of Booneville, Miss., for appellant.

Thos. Fite Paine, of Aberdeen, Miss., and C. R. Bolton, of Tupelo, Miss., for appellee.

Before SIBLEY, McCORD, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

In appellant's suit for damages for a personal injury sustained while working at appellee's sawmill a verdict was directed for the defendant. This is the sole error specified on appeal, and the sole questions argued are whether appellant was given a reasonably safe place to work, and whether the negligence of the sawyer was that of a fellow servant.

The mill was a band-sawmill operated by the sawyer who controlled the motions of the carriage, and by a "dogger", who worked to the rear of the saw and fastened the dogs into the logs, and by appellant who as "off-bearer" worked just in front of the saw on the side of which the plank or slab fell when the log on the carriage had passed completely by the saw. There was a table to catch the plank or the slab which extended from the saw forward beside the path of the carriage. It was fitted with revolving rollers which carried the plank or slab forward and away. Planks, being flat on both sides, gave little trouble, but slabs, if the rough sides fell upon the rollers, would get at an angle and interfere with the return passage of the carriage, which moved rapidly and might carry the slab back against the saw, or otherwise injure the workers. The off-bearer's main duty was to stand by the table, in a semicircular place cut out of the table, to catch the lower edge of the slab and by pulling it up to cause the flat side to fall upon the rollers. Even then the heavy end sometimes caused the slab not to travel truly upon the rollers, so that the slab might interfere with the return of the carriage. It was the off-bearer's duty to see that this did not happen. The sawyer had a seat on the opposite side of the carriage near the saw from which he could see all operations. He controlled the return of the carriage by a lever and could quickly stop it, and it was the understood rule, though not formally promulgated as such, that he should stop it in the event a danger developed. Both he and the off-bearer were experienced at their work, and had had no accident before. On the day in question a slab was sawed off which was shorter than the log, light and thin at the front end, and thick and heavy at the rear end. Appellant caught it with his hook and it fell properly on the rollers and was passed forward about four feet, and the carriage was started back. The heavy back end of the slab caused the light front end to veer into the path of the carriage, the front block of which caught on it and thrust the slab back against appellant and pinned him against the frame of the saw and severely injured him, before the carriage was stopped. There was a wire cable which passed from the roof to weights below the floor, near and to one side of which appellant was standing. It had always been there, and ordinarily there was ample room to pass around it; but appellant, without explaining how it interfered with him, testified he believed he could have gotten out of the way if the cable had not been there.

The common-law principles touching the liability of master to servant are in force in Mississippi, with slight modifications not here important. Roughly stated, the master has the absolute duty to provide a reasonably safe place in which to work; to furnish reasonably safe and sufficient tools and appliances with which to work; to exercise reasonable care to select other servants who are skillful and careful; to warn the inexperienced servant of dangers of which he is ignorant; and if the work is dangerous and also complex, to organize it by making and enforcing rules so as to render it as safe as is reasonably possible. Having done this, the master is not an insurer of the servant's safety, but the servant assumes the ordinary risks of the work he has undertaken, including the risk that his fellow servants may not always be careful. The master is not responsible for the negligence of a fellow servant, unless he has in truth appointed him to see after some one of the master's absolute duties and the servant has failed in that. 35 Am.Jur., Master and Servant, §§ 138, 303, 334, 353. Of course a person in charge of the work, with full authority to control it and the workers, is not a fellow servant, but the representative of the master. Id. §§ 364, 369.

The evidence here is that the master was represented in the mill by a superintendent. The sawyer did not "hire and fire" men, but like the others worked under the direction of the superintendent. The sawyer did have control of the saw carriage and directed the setting of the blocks to determine the cut of the saw, "and worked with the crew as sawyers usually do." On this evidence the sawyer was not a vice-principal, but a fellow servant. Nor does it appear that he was charged by the master with looking out for any of the master's absolute duties. He was merely a sawyer with the sawyer's duty to be diligent and careful as such, just as appellant was off-bearer, with a duty to be diligent and careful as such. As a crew they were engaged in operating a band-saw. That was their work. The danger out of which appellant's injury arose, whether due to a want of care on the off-bearer's part or on the part of the sawyer, grew out of the work itself, not out of any defect in the place of work or the master's machines. It was a risk assumed by the workers.

That work around such a sawmill is not so complex as to require the making and enforcement of special rules was decided in Tatum v. Crabtree, 130 Miss. 462, 94 So. 449, 451. That case was relied on...