Jackson Ready-Mix Concrete v. Sexton

• Decision Date: 13 April 1970
• Docket Number: READY-MIX,No. 45602,45602
• Citation: 235 So.2d 267
• Parties: JACKSONCONCRETE, a Miss. Corp. v. Leroy SEXTON.
• Court: Mississippi Supreme Court

Page 267

235 So.2d 267

JACKSON READY-MIX CONCRETE, a Miss. Corp. v. Leroy SEXTON.

No. 45602.

Supreme Court of Mississippi.

April 13, 1970.

Rehearing Denied June 1, 1970.

Cox & Dunn, Jackson, W E. McIntyre, Jr., Brandon, for appellant.

Barnett, Montgomery, McClintock & Cunningham, Jackson, John C. McLaurin, Brandon, for appellee.

SMITH, Justice.

Jackson Ready-Mix Concrete, a Mississippi corporation, has appealed from a judgment of the Circuit Court of Rankin County recovered against it by Leroy Sexton, in a personal injury action. Sexton brought the suit against Allied Electric Company, Mississippi Power & Light Company and Ready-Mix. However, at the conclusion of plaintiff's case, motions of Mississippi Power and Allied Electric to exclude were sustained and they went out of the case. A similar motion by Ready-Mix was overruled and, upon the close of the evidence, a request by Ready-Mix for a directed verdict was also denied.

Among other errors assigned by Ready-Mix for reversal is that the trial court erred in failing to direct the jury to return a verdict in its favor.

Sexton, a licensed electrician, was an independent electrical contractor doing business as Leroy Sexton Electric Service. His experience in this specialized filed had extended over a period of 30 years at the time of his injury. He operated his own establishment, with his own tools, appliances, truck and safety devices and employed his own assistants or helpers. He held himself out to the public as a skilled and experienced electrician.

Ready-Mix was engaged in a commercial manufacturing enterprise in which the use of electricity was incidental. It had no skilled or experienced electricians in its employ, and had contracted with Sexton from time to time to supply labor and materials for electrical jobs which required the services of an electrician with specialized skill and experience in the field.

Bills submitted to Ready-Mix by Sexton for services and materials prior to the time of his injury indicate that he had been paid more than $93,000 by Ready-Mix for those items between 1961 and 1965. Among the expert services performed by Sexton for Ready-Mix included numerous safety inspections of the electrical installations at its plant.

On the occasion of Sexton's injury, he had been called in by Ready-Mix to install an additional line on an existing pole belonging to and located upon the private premises of Ready-Mix. Sexton testified that he knew that these wires carried a 480 volt current of electricity and knew that the current was 'on.' He had worked on this particular pole at least twice previously, once at the very top.

It was broad daylight and Sexton was in full possession of his faculties, when he began climbing the pole. No employee of Ready-Mix was present, his helper was his own employee, the method of doing the job was chosen by Sexton and he employed his own tools and selected which of the several safety devices (rubber gloves) he would use and which he would not use. On one former occasion when he had worked on this pole he had used a ladder but this time he elected to climb it instead.

Among the safety devices which he elected not to use, but which he had in his truck with him, was a rubber blanket for covering uninsulated wires and connections and electrical tape also suitable for that purpose. He did not request any assistance from Ready-Mix nor did he ask for advice or tools. He had climbed to a point where, as he expressed it, his eyes were 'a hand's reach' from the wire, and was reaching around to fasten his safety belt when he brought his unprotected elbow into contact with an uninsulated kerney and received a shock, which caused him to fall to the ground and to injure himself severely.

There had been nothing to prevent his seeing the uninsulated kerney into contact with which he had brought his elbow, and he testified that he did see it immediately after his fall and from his position on the ground. He had not seen it before because he had not looked while trying to fasten his belt. It is alleged that Ready-Mix was negligent in failing to warn Sexton that the uninsulated copper fittings had darkened in the processes of natural weathering and in having too many lines on the pole for safety. However, it is clear from Sexton's own testimony that the exercise of the slightest care on his part could not have failed to disclose both of these conditions to him. In fact, he testified that he knew that weathering caused exposed copper to darken rapidly, and, of course, the number and location of the wires were readily apparent.

This was not, as alleged, a 'dangerous trap' for an experienced and skilled electrician. This was a private installation on the private property of a consumer. It was not an installation of a public utility. Ready-Mix, like any lay consumer of electric energy, having an electrical problem, called in Sexton as a specialist to handle the job. In the light of Sexton's experience and familiarity with the dangers inherent in dealing with electricity and his knowledge of the Ready-Mix plant through his numerous inspections and particularly because of his personal work on this very pole, it is beyond question that no one knew more about the situation than did Sexton.

As an electrical contractor Sexton was a business invitee of Ready-Mix. The duty of an owner toward such an invitee is discussed in 65 C.J.S. Negligence § 63 (1966).

The owner, occupant, or person in charge of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety. The reasonable or ordinary care to be exercised to protect an invitee must be commensurate with the particular circumstances involved, including the age and capacity of the invitee. (Id. § 63(45)).

The owner, occupant, or person in charge of property is not an insurer of the safety of an invitee thereon, * * *. (Id. § 63(45)).

The duty toward an invitee does not extend to looking out for or preventing wrongful acts or disorderly conduct of the invitee, which may result in injury to him, or to prevent a careless person from injuring himself. (Id. § 63(45)).

(W)here the invitee knows of the danger or is chargeable with knowledge thereof, even a warning is not required, * * *. (Id. § 63(46)).

The basis of the inviter's liability for injuries sustained by the invitee on the premises rests on the owner's superior knowledge of the danger, and, as a general rule, he is not liable for an injury to an invitee resulting from a danger which was known to the invitee or which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition which was as well known or as obvious to the invitee as to the inviter, or from a danger which the invitee should reasonably have appreciated before exposing himself to it, or which the inviter had no reason to believe would not be discovered by the invitee. It has been held that liability cannot be based on a condition of the premises which is incidental to the business being carried on there and to be expected by an invitee.

There is no duty to warn the invitee of a defect or danger which is known to him or which is as well-known to the invitee as to the owner or occupant, or which is obvious or which should be observed by the invitee in the exercise of ordinary care. (Id. § 63(53)).

See also 38 Am.Jur. Negligence section 97 (1941).

In General Tire & Rubber Company v. Darnell, 221 So.2d...