J. J. Newman Lumber Co. v. Cameron

• Decision Date: 31 May 1937
• Docket Number: 32650
• Citation: 174 So. 571,179 Miss. 217
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. CAMERON

174 So. 571

179 Miss. 217

J. J. NEWMAN LUMBER CO. v. CAMERON

No. 32650

Supreme Court of Mississippi

May 31, 1937

Division A

1. MASTER AND SERVANT.

In action against employer for injuries sustained by employee while holding a short chisel which was being struck with heavy maul by helper, on ground that chisel, which foreman negligently required employee to use, was dangerous tool, employer was not entitled to directed verdict on ground that chisel and maul were simple tools and that employee assumed risk, since under statute servant does not assume risk where master is negligent (Code 1930, section 513).

2. MASTER AND SERVANT.

The master is not relieved of liability for injury from use of unsafe tools, though servant may have been as competent as master to determine suitability thereof for performance of required work, where servant is bound to obey order or subject himself to discipline for insubordination, since statute abolishes doctrine of assumption of risk when master is negligent (Code 1930, section 513).

3. APPEAL AND ERROR.

The Supreme Court was not required to determine whether instructions complained of by appellant were erroneous where, though erroneous, they would not justify setting aside of verdict, which was manifestly correct.

4 DAMAGES.

$30,000 for injury to head which shortly thereafter caused employee to become totally blind was not excessive.

HON. W J. PACK, Judge.

APPEAL from the circuit court of Forrest county HON. W. J. PACK Judge.

Action by Hebron H. Cameron against the J. J. Newman Lumber Company. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Affirmed.

Heidelberg & Roberts and Lamar Hennington, of Hattiesburg, and Watkins & Eager, of Jackson, for appellant.

The court below committed error in refusing to grant the defendant a peremptory instruction. There was no negligence for failure of the master to furnish a suitable or safe "simple tool."

Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Bear Creek Mill Co. v. Fountain, 94 So. 230; Hammontree v. Cobb Construction Co., 168 Miss. 844; Harley v. Buffalo Car Mfg. Co., 36 N.E. 813; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Karras v. Railroad Co., 162 N.W. 923; 13 L. R. A. (N. S.) 671-674 and 676-678; 40 L. R. A. (N. S.) 832; McGinnis v. Canada Southern Bridge Co., 13 N.W. 819; Middleton v. National Box Co., 37 F.2d 89; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Phillips v. Chicago, etc., R. Co., 227 N.W. 931; Post v. Chicago, etc., R. Co., 97 S.W. 233; Wausau Southern Lbr. Co. v. Cooley, 94 So. 228, 130 Miss. 333.

Plaintiff failed to prove any negligence on the part of the defendant arising from the employment of a competent fellow servant.

Hines v. Green 125 Miss. 476, 87 So. 649; Ingram Day Lbr. Co. v. Joh, 64 So. 934, 107 Miss. 43; Southern Lbr. Co. v. May, 102 So. 854, 138 Miss. 27, 103 So. 363; Vanner v. Dalton, 159 So. 558, 172 Miss. 183.

The court committed error in refusing the defendant the instruction that it was not negligent in not using an acetylene torch on the occasion in question since the master is not negligent for a failure to furnish the safest, newest and best obtainable equipment.

Columbus, etc., R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 217; Hammontree v. Cobb Construction Co., 152 So. 279, 168 Miss. 844; Hand v. Boatner, 94 So. 162, 130 Miss. 292; Jones v. Y. & M. V. R. Co., 44 So. 813, 90 Miss. 457; Kent v. Railroad Co., 77 Miss. 494, 27 So. 620; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Mobile & Ohio R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719; Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 128 So. 99, 158 Miss. 346.

An appellate court must look over the entire testimony, and if the verdict is against the overwhelming weight or clearly against the preponderance of the evidence, will remand the same for a new trial.

Barbee v. Reese, 60 Miss. 906; Beard v. Williams, 107 So. 750, 172 Miss. 880; Clark v. Moyse & Bros., 49 Miss. 721; Columbus, etc., R. Co. v. Buford, 116 So. 817, 150 Miss. 832; Fore v. I. C. R. R. Co., 160 So. 903, 172 Miss. 451; Justice v. State, 170 Miss. 96, 154 So. 265; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; M. & O. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; M. & O. R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Sims v. McIntyre, 8 S. & M. 324; Y. & M. R. Co. v. Pittman, 153 So. 382, 169 Miss. 667.

The trial court committed error in refusing the defendant the instruction that it was not negligent in not using a cleaver to cut the particular nut being cut and in not holding as a matter of law that there was no liability therefor since, not only is the evidence that plaintiff could have used a cleaver contrary to the great weight of the evidence, thus justifying a new trial, but the undisputed evidence establishes physical facts which show that the cleaver could not have been used for that particular act and a jury verdict contrary thereto would not be permitted to stand since it would be inconsistent with admitted physical facts and with natural laws and common knowledge.

A master is not negligent for failing to furnish an impracticable or impossible tool or using unreasonable or impractical means or methods.

Conklin v. Central Tel. & Tel. Co., 114 N.Y.S. 190; Hammontree v. Cobb Const. Co., 152 So. 279; 168 Miss. 852; Huskey v. Heinie Safety Boiler Co., 173 S.W. 16; Jones v. Y. & M. V. R. R. Co., 44 So. 813, 90 So. 547; Mitchell v. Brooks, 147 So. 660; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Woodstock v. Bowles, 158 Miss. 346, 128 So. 99.

A master is only liable for negligence not for danger and an employee assumes the risk of all danger incidental to the character of the employment where there is no negligence.

Anderson-Tully Co. v. Goodin, 163 So. 536, 174 Miss. 162; Eastman Gardiner Hwd. Co. v. Chatham, 151 So. 556, 168 Miss. 471; Section 513, Code of 1930; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Newell Contracting Co. v. Flynt, 161 So. 298, 743, 172 Miss. 719; Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 128 So. 98, 158 Miss. 346; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680.

The burden of proving by a preponderance of the evidence negligence of the defendant was upon the plaintiff, and from the statement of facts it is clear that the burden was not sustained and that the most favorable deduction that could possibly be made from plaintiff's evidence is a probability that the cleaver might be used. A jury verdict cannot be based upon conjecture. A verdict cannot be based on evidence contrary to known physical facts.

A. & V. R. Co. v. White, 63 So. 345, 106 Miss. 141; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392; Elliott v. G. M. & N. R. R. Co., 145 Miss. 768, 111 So. 146; G. M. & N. R. Co. v. Collins, 151 Miss. 240, 117 So. 593; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; Hand v. Boatner, 130 Miss. 292, 94 So. 162; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 850; I. C. R. Co. v. Jones, 16 So. 300; I. C. R. Co. v. Humphreys, 170 Miss. 840, 155 So. 421; James v. Y. & M. V. R. R. Co., 121 So. 819, 153 Miss. 776; Michelson v. Nebraska Tire & Rubber Co., 63 F.2d 597; M. & O. R. Co. v. Johnson, 141 So. 582; Railroad Co. v. Coleman, 160 So. 277, 172 Miss. 514; Railroad Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Shell Petroleum Corp. v. Eagle Lbr. Co., 158 So. 331, 171 Miss. 539; Standard Brewery v. Lynch, 195 Ill.App. 445; S. H. Kress & Co. v. Sharp, 126 So. 650, 156 Miss. 693; Tyson v. Utterback, 122 So. 496, 154 Miss. 381; United States v. Harth, 61 F.2d 541; Universal Truck Loading Co. v. Taylor, 164 So. 3; Waldmann v. Construction Co., 233 S.W. 242; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Y. & M. V. R. Co. v. Green, 147 So. 333, 167 Miss. 137.

The court committed error in giving the plaintiff the first instruction. The instruction assumed as a fact that the chisel bar was not a suitable and proper instrument to do the work with and was not reasonably safe.

Griffith v. Griffith, 46 So. 945, 93 Miss. 651; D'Antoni v. Albritton, 126 So. 836, 156 Miss. 758; Eagle Cotton Oil Co. v. Pickett, 166 So. 764; Jackson Light & Traction Co. v. Taylor, 72 So. 856, 112 Miss. 60; Priestley v. Hays, 112 So. 788, 147 Miss. 843.

Even if it could be said that the instruction submits to the jury for determination the question of whether the chisel was a suitable and proper and reasonably safe tool, which is denied, still the instruction is erroneous in that it permits the plaintiff to recover if the chisel was not "reasonably safe;" thus, permitting plaintiff to recover for the furnishing of a defective simple tool.

This instruction makes it the absolute duty of defendant to furnish a suitable, proper and safe tool, rather than making the ground of liability the failure to use reasonable care to furnish a reasonably safe, suitable and proper tool.

Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Barron Motor Co. v. Bass,, 150 So. 202, 167 Miss. 786; Columbus etc., R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Eagle Cotton Oil Co. v. Pickett, 166 So. 765; Hammontree v. Cobb Construction Co., 152 So. 279, 168 Miss. 844; Hooks v. Mills, 101 Miss. 91, 57 So. 545; 3 Labatt's Master & Servant (2d) par. 920; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; New Orleans, etc., R. R. Co....