Lambert v. Mississippi Cent. R. Co.

• Decision Date: 21 January 1929
• Docket Number: 27526
• Citation: 152 Miss. 450,120 So. 177
• Court: Mississippi Supreme Court
• Parties: LAMBERT v. MISSISSIPPI CENT. R. CO. [*]

120 So. 177

152 Miss. 450

LAMBERT v. MISSISSIPPI CENT. R. CO. ^[*]

No. 27526

Supreme Court of Mississippi

January 21, 1929

Division B

1. MASTER AND SERVANT. Fellow servant's failure to warn plaintiff before striking board plaintiff was prizing with crowbar held not negligence proximately contributing to injury.

Where plaintiff was prizing boards with crowbar and fellow servant was striking them from below in removing flooring of railroad flat car, fellow servant's failure to warn plaintiff that he was about to strike, with sledge hammer, board that plaintiff was prizing, held not negligence which proximately contributed to plaintiff's injury, where crowbar was knocked loose and plaintiff fell.

2. MASTER AND SERVANT. Master's failure to furnish servant to warn plaintiff using crowbar before fellow servant struck flat car flooring from below held not negligence.

Where plaintiff and another were removing flooring from railroad flat car, and plaintiff was using crowbar on top and fellow servant was using sledge hammer underneath, master's failure to furnish servant to warn plaintiff as to when fellow servant was about to strike boards held not negligence causing injuries plaintiff sustained when fellow servant struck board, knocking crowbar loose and causing plaintiff to fail.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Tillie Lambert against the Mississippi Central Railroad Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Affirmed.

J. W Cassedy, and Currie & Currie, for appellant.

Hannah & Simrall, and T. Brady, Jr., for appellee.

OPINION

ANDERSON, J.

Appellant brought this action in the circuit court of Forrest county against appellee to recover damages for an injury received by him while engaged about his duties as an employee of appellee, alleged to have been caused by the negligence of the letter. Appellee's demurrer to appellant's declaration was sustained, and appellant declined to plead further, and final judgment was entered dismissing the suit. From that judgment, appellant prosecutes this appeal.

The case made by appellant's declaration was substantially as follows. That appellant and L. L. Magee were carpenters in the employ of appellee and engaged in repairing bad-order cars for appellee; that a flat car belonging to appellee was by it placed on one of its repair tracks in its shops for the purpose of being repaired; that, in order to repair the car it was necessary to remove the flooring or decking thereof, which flooring or decking was nailed down with large nails or spikes to joists underneath; that it was difficult to remove the flooring of the car, and, in order to do so, it was necessary to use a crowbar and a large sledge hammer, which were provided by appellee for the purpose; that the crowbar was used in prizing loose the timbers that constituted the flooring of the car; that appellee provided appellant's fellow workman, Magee, with a large sledge hammer, weighing from ten to fifteen pounds, with which he performed his part of the labor in removing the flooring; that it was necessary in doing this work that appellant stand upon the floor of the car and place the point of the crowbar under the particular piece of flooring being removed, and prize or push down on the handle of the crowbar for the purpose of drawing the spikes or nails out of it; that at the same time, for the purpose of assisting in accomplishing that result, appellant's fellow workman, Magee, was required to be down on the ground underneath the flooring of the car, and, with the sledge hammer provided for that purpose, strike heavy blows against the particular piece of flooring being removed; that it took the joint effort of both of them in this manner to remove the timber constituting the flooring of the car; that on the occasion of appellant's...