Jefferson v. Virginia-Carolina Chemical Co.

• Decision Date: 12 December 1938
• Docket Number: 33427
• Court: Mississippi Supreme Court
• Parties: JEFFERSON v. VIRGINIA-CAROLINA CHEMICAL CO

185 So. 230

184 Miss. 23

JEFFERSON v. VIRGINIA-CAROLINA CHEMICAL CO

No. 33427

Supreme Court of Mississippi, Division A

December 12, 1938

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by John Jefferson against the Virginia-Carolina Chemical Company for injuries sustained by plaintiff while employed by defendant. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

McClendon & Edmonds, of Jackson, for appellant.

The court below erred in granting to the defendant the peremptory instruction. Appellant respectfully submits that under the evidence adduced by him, the court was manifestly in error in finding that the negligence of the fellow servant was the proximate cause of the injuries complained of.

The master is liable where he affirmatively orders the servant to omit the safe way and to perform the work in the unsafe manner, the order of the master so to do being given either at the particular time, or at previous times, and thence the improper and unsafe method has been pursued in virtue or by the force of the previous affirmative orders, and if the master expressly and affirmatively orders the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant and, to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders.

Brown v. Coley, 168 Miss. 785.

Where the master places his servant at a place and in character of work which exposes the servant to hazards against which the servant cannot, by the use of due care, protect himself and at the same time do his work, the master must then take reasonable care to warn the servant or to erect guards, if either of these are reasonably practicable, and, if not, the master must so order and control the method of work as to obviate the danger, so far as reasonably practicable.

McLemore & McArthur v. Rogers, 152 Miss. 884.

In this case, we respectfully say that the appellant could not, by the use of due care, protect himself, and, at the same time do his work in the manner in which he was ordered to do it and that the defendant company, therefore, owed him the duty to warn him of the approaching danger, which would have certainly been simple enough of performing. However, if the company did not feel that it was practical to maintain an employee at the point of danger to warn appellant and his fellow workmen of such danger, then under the above case, the alternative remained that it must so order and control the method of work as to obviate the danger.

Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Gow Co., Inc., v Hunter, 168 So. 264.

There is not a word of testimony in the record which charges or asserts that the appellant's fellow workman, whose buggy collided with the appellant's buggy was guilty of any negligence whatever, but on the other hand, all the evidence shows that the accident out of which grew the injuries complained of was caused by the general method of working which prevailed; that is, by the fact that the workmen were required at all times to go at a dangerous and reckless rate of speed.

Goodyear Yellow Pine Co. v. Mitchell, 140 So. 792; Gulf Refining Co. v. Ferrell, 147 So. 476.

Barnett, Jones & Barnett, of Jackson, for appellant.

It was negligence for the master not to provide reasonably safe rules and methods for this work.

Coast Ship Co. v. Yeager, 81 So. 797; Gulf Refining Co. v. Ferrell, 147 So. 476; Y. & M. V. R. R. Co. v. Smith, 117 So. 339; McLemore & McArthur v. Rogers, 152 So. 883; Hammontree v. Cobb Const. Co., 152 So. 279; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Albert v. Doullut & Ewin, 178 So. 312.

Threat of firing servant amounts to coercion. The appellant did not voluntarily adopt a dangerous method of performing his work, but the dangerous method was forced on him by the appellee with specific orders to hurry or "hit the clock" (meaning thereby he would be fired).

The Supreme Court has held in several cases that where the master orders the servant to do work with a threat of firing him if he refuses which the servant in his best judgment thinks he cannot perform, the master is guilty of negligence if the servant is injured in the performance of the work because it was too great for him.

Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792; Everett Hardware Co. v. Shaw, 172 So. 337; Jones v. D. L. Taylor & Co., 102 S.E. 397, 179 N.C. 293; Brown v. Coley, 152 So. 1.

A hurry order may be negligence. Depending upon the circumstances of each case, an order from the master to the servant to hurry in the performance of his labor may or may not be negligence. In each of the cases where the question of whether the master was negligent in ordering the servant to hurry in the performance of his work, the courts have said that such order must subject the servant to an extraordinary hazard or must excite the servant.

English v. Roberts, Johnson & Rand Shoe Co., 145 Mo.App. 439, 120 S.W. 437; Sambos v. Cleveland, C. C. & St. L. R. Co., 134 Mo.App. 460, 114 S.W. 567; Saller v. Friedman Bros. Shoe Co., 130 Mo.App. 712, 109 S.W. 794; Walters v. Chicago Great Western R. Co., 154 N.W. 554.

Green, Green & Jackson, of Jackson, for appellee.

This case produces the unusual situation of a plaintiff contending that the master is liable if he urges the servant or employee to hurry and make haste with his work if any injury results during the course of the plaintiff engaging in such haste, although the order is a general one without specific application, requesting and urging all of the employees to hurry and complete the work with as much haste as possible.

In passing upon the motion for a new trial the learned Circuit Judge pointed out that the orders of Mr. Calhoun to the workmen to hurry up with their work must be considered by the court, and should have been considered by the plaintiff in the light of reason and common sense, and he further concluded that the order to hurry up or hit the clock was subject to all of the exceptions demanded by common sense, and because "otherwise they would have required that employees brook no obstacle, human or otherwise, and that no danger, actual or potential, great or small, should stay their impetuous haste."

In the case of Brown v. Coley, 168 Miss. 778, 152 So. 61, Mr. Justice Griffith, in speaking for the court on reversing and entering a judgment for the defendant, clearly stated the rules applicable on the issues presented on this appeal, as follows: "The main contention of appellee, as shown by his declaration and by the only instruction requested by him on the issue of liability, is that the master had failed to furnish him with a reasonably safe place in which, and with reasonably safe appliances with which, to work. The proof is insufficient, in fact there is no proof, to bring this case within the safe place to work doctrine. In Seifferman v. Leach, 161 Miss. 853, 858, 138 So. 563, 564, it was said: 'The ground of liability in respect to unsafe places to work is not danger, but negligence. The rule is one of reason. There are many places in and around machinery which are dangerous and cannot be made otherwise. Those who work there, work in unsafe places, but this does not make the master liable as for furnishing an unsafe place in which to work.' If the rule were otherwise, employees working at or near exposed saws in a sawmill would be entitled to recover for that reason alone, because when so working they would be in places of danger. Such is not the rule, as see, for instance, Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98. And upon similar principle, the case cannot be sustained on the alleged ground that the master failed to use reasonable care to furnish the servant with reasonably safe tools and appliances."

Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279.

Our friends in the instant case are defeated upon their proposition that the law would require a watchman or a traffic policeman to direct the movement of "Georgia Buggies" at the entrance to the box car door. There was nothing unsafe if the servants exercised ordinary and reasonable care for their own safety. The unfortunate accident and injury received by the plaintiff here came about by reason of the failure of his fellow-servant to observe reasonable care or because the plaintiff himself, solely and only, failed to exercise that ordinary and reasonable care required for his own safety.

Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.

In Boyer v. Eastern Ry. Co., 87 Minn. 367, 92 N.W. 326, it is held that the ordinary labor of unloading logs from a freight car is not attended with extra hazards nor involved in such complicated or obscure conditions as to require...