International Shipbuilding Co. v. Carter

• Decision Date: 12 January 1920
• Docket Number: 20844
• Citation: 83 So. 413,121 Miss. 103
• Court: Mississippi Supreme Court
• Parties: INTERNATIONAL SHIPBUILDING CO. v. CARTER

83 So. 413

121 Miss. 103

INTERNATIONAL SHIPBUILDING CO. v. CARTER

No. 20844

Supreme Court of Mississippi

January 12, 1920

October 1919

MASTER AND SERVANT. Safe place rule.

The rule which requires the master to furnish a safe place to work does not apply to cases where the prosecution of the work itself makes the place and creates the danger.

HON. J H. NEVILLE, Judge.

APPEAL from the circuit court of Jackson county, HON. J. H. NEVILLE Judge.

Suit by S. H. Carter against the International Shipbuilding Company. From a judgment for plaintiff. Defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and remanded.

McDonald & Marshall, for appellant.

We submit that appellee could not declare upon one theory or ground of action, and recover upon another. He must recover if at all upon the theory or ground of action relied upon in his declaration. To permit him to do otherwise would be contrary to law, and would be grossly unfair to appellant. Richards v. City Lumber Company, 57 So 97.

There being nothing wrong or negligent in the place of plaintiff's work at the time of the accident, and his place of work being in no legal sense a cause of his injury, the giving of instruction number one for appellee, above set out, has been distinctly condemned and held reversible error by this court in New Orleans and Northeastern Railroad Company v. Williams, 96 Miss. 373, 53 So. 619.

The "safe place in which to work" doctrine has no applicability to this case, and was not a criterion of liability. Hence the granting of this instruction was prejudicial and reversible error. And so, we submit, with the refusal of the learned court below to grant instruction number five, above set out, requested by appellant in an effort to cure the submission to the jury of this false criterion of liability by the granting of instruction number one for appellee. We are at a loss to conceive of a basis of legal justification for the refusal to grant this charge; or how such refusal could have failed to materially prejudice appellant's right to a fair trial. It was founded upon the testimony, was pertinent to the issue raised upon count one of the declaration and submitted to the jury by the court's refusal to grant appellant's request for a peremptory instruction upon that count; was in direct answer, or at least, supplementary in a necessary way, to instruction number one granted for appellee; and beyond question embodied a correct announcement of the law governing a trial of the issue, if the learned court properly submitted to the jury the issue raised on count one of the declaration.

Further, we submit, beyond the fact that plaintiff's place of work did not in law cause, or contribute to the occurrence of the accident, the safe place in which to work doctrine could not be applicable as a criterion of liability to this cause. Appellee being engaged in construction work, and the place of work being created by the work itself performed by appellee and his co-laborers, and changing and shifting constantly safe one moment, unsafe the next, as the construction progressed, the doctrine could not be applied. In such case appellee and his co-workers and not appellant, furnished the place of work, they being employed to create that very place. 18 Ruling Case Law, Master and Servant, paragraph 18.

"An exception to the rule requiring the employer to make safe the place is which his employees are at work is said to exist where the conditions of the place are constantly changing as the work progresses." 3 Labatt on Master and Servant, paragraph 1177.

"The rule that it is the duty of a master to provide a reasonably safe place to work for his servants is held not applicable to cases in which the very work at which the servants are employed is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety." Citreon v. O'Rourke Engineering Construction Co., 188 N.Y. 339, 80 N.E. 1092, 19 L. R. A. (N. S.) 340; Walters v. Sumerfield Co., 160 Iowa 127, 140 N.W. 388; Jakopac v. Summerville Co., 153 Wis. 176, 140 N.W. 1060; Meehan v. St. Louis, etc., R. R. Co., 114 Mo.App. 396, 90 S.W. 102; Zeigenmeyer v. Charles Goertz Lime and Cement Co., 113 Mo.App. 330, 88 S.W. 139; Utica Hydraulic Cement Co. v. Whalen, 11 Ill.App. 23.

The rule which requires a master to furnish a safe place to work does not apply to that class of cases where the work which the servant is employed to do is constantly producing changes and temporary conditions, for the time being more or less hazardous for those engaged in the work, and where it would be practically impossible to keep the conditions safe and prosecute the work. Lassasso v. Jones Brothers Co., 88 Vt. 526, 93 A. 266; Shields v. Bergendahl Bass Engineering Construction Co., 187 Ill.App. 5; Horton & Horton v. Hartley (Tex.), 170 S.W. 1046; Morgan v. Wabash Railroad Co., 158 Ill.App. 344; Callen v. Bull, 113 Cal. 593, 45 P. 1017; O'Connell v. Clark, 48 N.Y.S. 74, 22 A.D. 466.

"The principle of a safe place does not apply where the prosecution of the work itself makes the place and creates the danger." Miller v. Moran Brothers Company, 39 Wash. 631, 81 P. 1080, 109 Am. St. Rep. 917, 1 L. R. A. (N. S.) 283.

We respectfully submit, therefore, that the learned court below inadvertently committed error gravely prejudicial to appellant in refusing to grant appellant the requested peremptory instruction upon count one of appellee's declaration; in giving instruction number one requested by appellee, and in refusing to give instructions four and five requested by appellant, and that, accordingly the judgment appealed from should be reversed.

White & Ford, for appellee.

The case went to the jury on the court declaring it an unsafe place to work and the action of appellant in failing to furnish a sufficient number of reasonably safe tools. The court gave a peremptory instruction charging a failure to furnish a sufficient number of men, but why, we do not see, as there was a direct conflict in the evidence on that point.

Appellant pleaded only the general issue. The defenses of contributory negligence, and negligence of fellow servants are affirmative defenses which must be pleaded and such pleas must state facts showing such defenses. The defendant is entitled to know what acts are relied on to constitute contributory negligence and negligence of fellow servants, so, if necessary issue can be joined thereon. The bare statement without more that appellee was guilty of contributory negligence and that his fellow servants were guilty of negligence will not do. But no such defenses were shown so the failure to plead same are immaterial. Certainly the allegations of the declaration were proven by appellee's witnesses and also appellant's witnesses.

So to take up appellants brief seriatim. He contends we sued on one theory and recovered on another. He does not state wherein this fact exists. We rely on the declaration which the proof overwhelmingly supports.

The counsel cite Richards v. Lumber Co., 57 So. (Miss.), 977, 101 Miss. 678, which absolutely states the law of that case. The negligence charged was worn out and defective machinery which placed too much strain on a belt which broke. There was no proof of such fact but the proof was that some person let the machinery choke and clog which placed so much strain on the belt, new belt, so far as the evidence shows, that it broke. There was no count declaring any negligence in allowing the machine to choke and the proof showed the choking was the sole cause of the injury. The cause failed for total lack of proof.

Counsel criticise instruction No. 1, granted appellee. If appellee was entitled to go to the jury on the first count which cannot be seriously controverted, then this instruction was eminently proper. Counsel cite Railway v. Williams, 96 Miss. 373. In the Williams case the negligence charged was a failure to furnish a safe place to work, the employee being engaged in carrying a heavy object between two cars for aught that appears, this being the only trip he would make between the two cars and while so doing the cars were switched on him. The court said the negligence in switching the cars should have been charged.

In the case at bar, count one charged that the place became unsafe by reason of the bringing into the ship of the heavy timber and throwing it on appellee without warning while he was confined in a narrow space. Appellant complains of the refusal of his instruction No 5. The instruction ignores that the finding must be from the evidence. It ignores the fact that the duty to furnish a safe place is nondelegable and it ignores the evidence that the heavy timber was brought in and pushed on appellee, confining itself to the original situation. There are numerous other instructions in the record for both parties covering all phases of the case.

We recognize the rule in this state that where the work is constantly changing as the work progresses, the servant assumes the risk of that employment, as recognized by this court in Cybur Lumber Co. v. Erkhard, 118 Miss. 401, which appellant does not cite, but such a case is not presented by this record and the authorities cited by counsel are not in point. Appellant didn't even plead such a defense. By his plea he only denied that the place was unsafe. The negligence here complained of was not a thing constantly changing. The bringing of the heavy timber in to the vessel was an occasion out of the ordinary. That was only one of the duties of appellee. Appellant put him in a trap to work and then without warning or time to escape wilfully shoved a timber weighing many tons on him.

The progress of the work did not...