E. L. Bruce Co. v. Brogan

• Decision Date: 24 February 1936
• Docket Number: 32113
• Citation: 166 So. 350,175 Miss. 208
• Court: Mississippi Supreme Court
• Parties: E. L. BRUCE CO. et al. v. BROGAN

166 So. 350

175 Miss. 208

E. L. BRUCE CO. et al. v. BROGAN

No. 32113

Supreme Court of Mississippi

February 24, 1936

Division B

Suggestion Of Error Overruled, April 6, 1936.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Suit by Russell Brogan against E. L. Bruce Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Affirmed.

Welch & Cooper, of Laurel, for appellants.

The record shows without dispute that the appellee and his helper asked for a brake. It is undisputed that the general manager told them they might build one. Whitaker, the superintendent, told them the same. Brannon, the machinist in the shop, told them the same. This, according to appellee, was a month before the accident. The testimony shows that a blacksmith could build one. The materials were available. The structure was a simple one. Notwithstanding this, appellee neglected and failed to build the structure.

Hegwood v. Newman Lbr. Co., 132 Miss. 487, 96 So. 695.

Appellee was paid by the appellant company. His time was theirs. He was an experienced blacksmith. He had a helper who was subject to his orders and whose duty it was to assist. His task was simple and inexpensive. Any rule of law, we submit, which would permit a recovery for a failure to have a brake would certainly be inequitable and would certainly have not one single element of natural justice.

But it will be urged that the duty to supply the brake is nondelegable duty of the master and consequently there was negligence. But this rule has no application here for the reason that the person to whom the authority was granted to construct the brake is the person who is suing.

Texas Company v. Mills, 171 Miss. 231, 156 So. 866; Goodyear Co. v. Clark, 163 Miss. 661, 142 So. 443.

The general rule is that the master is not required to furnish the newest, best and safest, machinery, appliances, and places to work, but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view.

39 C. J. 332 and 429; Vehicle Woodstock Co. v. Bowles, 128 So. 98, 158 Miss. 346; Hatter v. I. C. R. Co., 69 Miss. 642, 13 So. 827; Kent v. Yazoo & M. V. R. Co., 77 Miss. 499, 27 So. 620, 78 Am. St. Rep. 534; Jones v. Y. & M. V. R. Co., 90 Miss. 547, 43 So. 813.

Appellee deliberately elected to, use one method of shoeing the mule and there was another and safer method.

Ovett Land & Lbr. Co. v. Adams, 69 So. 499, 109 Miss. 740; Rose v. Pace, 109 So. 861, 144 Miss. 375; Anderson-Tully Co. v. Goodin, 163 So. 536.

Getting kicked or hurt by an animal is a danger incident to, or inherent in, the business of shoeing horses. It is one that the employee knows is there and assumes. Legally speaking, it is an ordinary risk of the employment.

Anderson-Tully Co. v. Goodin, 163 So. 536.

The full duty is performed when an appliance in general use is supplied.

Vehicle v. Bowles, 128 So. 98, 158 Miss. 346.

Servant in charge of details of work should exercise ordinary diligence in looking out for his own safety and where evidence shows servant did not do so, master is entitled to directed verdict.

F. B. Collins, of Laurel, for appellee.

The care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect. The greater the risk or danger, the greater must be the care.

As to the degree and amount of care required it all depends upon the circumstances, and this is properly a question for the jury.

29 Cyc. 428; Grand Trunk Ry. Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 U. S. (L. Ed.) 485; 45 C. J. 696.

The question of whether or not brakes were in common use and the additional question as to whether or not, under the particular facts and circumstances as testified to by the witnesses for the appellee and as admitted by some of the witnesses for the appellant, it was dangerous or hazardous to undertake to shoe these mules in question without the use of a brake, was a disputed question and therefore a question for the jury to determine.

The dangerous situation was not created by the neglect of Brogan, the appellee.

The master cannot relieve himself of responsibility by delegating this duty to someone else.

Edwards v. Haynes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Benton v. Finkbine Lbr. Co., 79 So. 346, 118 Miss. 558; Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916.

This court has held in the case of Central Lbr. Co. v. Porter, 103 So. 506, that it is negligence to furnish the servant with an unsafe animal or team with which to work.

Currie & Currie, of Hattiesburg, for appellee.

This mule was, in the eye of the law, an equipment, machine appliance put on the premises for use and used by the appellant, in its saw mill operations, and the draws no distinction so far as liability is concerned, between this dangerous mule and any other dangerous piece of machinery put on the saw mill premises for use in conducting the saw mill operations.

The verdict of the jury was an affirmative answer to that question that this mule was vicious, and that the appellee was injured because this mule was vicious, and that the appellant was liable.

Central Lbr. Co. v. Porter, 139 Miss. 66, 103 So. 506.

The appellee did not contract to build braces or brakes. He was never personally authorized by the appellant to build them. All of the necessary materials for building a brake or brace were never furnished. Lumber was not the only material necessary. The attorneys for the appellant say in their brief that the appellee would have been paid for his time and labor in building them. There was no provision in his contract of employment that he should build them.

Central Lbr. Co. v. Porter, 103 So. 506.

There is no escape for the appellant and ought not to be, because the appellant was repeatedly told that this mule was dangerous and vicious.

Farmer v. Cumberland Tel. & Tel. Co., 38 So. 775.

It is the duty of the master to furnish the servant with teams reasonably safe for the purpose intended, and, where the master negligently fails to perform this duty, the servant does not assume the risk of his employment if he continues to use such teams at the request of the master.

Section 514, Code of 1930; Herbert v. Greenbaum, 248 Mass. 398, 143 N.E. 317.

The fact that the appellee also knew that the mule was vicious and dangerous and was liable and likely to kick him did not free the appellant from liability because under the statute the appellee did not assume the risk.

Argued orally by Ellis B. Cooper, for appellant, and Neill T. Currie, for appellee.

OPINION

Griffith, J.

Appellant operates a large sawmill for the manufacture of hardwood lumber. In this operation appellant uses many mules. Appellee was employed by appellant as a mill blacksmith and horseshoer; it being the duty of appellee to keep all the mules properly shod. In attempting to shoe one of the mules, appellee was kicked by the animal and was severely and permanently injured.

There was sufficient testimony to support the following findings of fact by the jury: The offending animal was one of two mules which had been purchased and put upon the work about two months before the injury. Both these mules were wild, ungovernable, and more than ordinarily dangerous to those required to shoe them, and this fact was known to the general manager of appellant company. About a month before the injury, appellee went to the general malinger and stated to him, in effect, that these two mules were too dangerous to be shod with reasonable safety without the use of a device known as a brace or brake, and, in a few days appellee's helper went to the manager and made a statement to the like effect. The truth of these statements to the general manager is borne out by the testimony of appellee and others to the effect that it was not reasonably safe to shoe these two dangerous mules either by throwing them or by the use of a side line, and that this work could not safely bo done except by the use of a brake or brace, which is a device somewhat like a stall and which is equipped also with leather...