Lucius v. Harris
| Decision Date | 05 March 1934 |
| Docket Number | 31063 |
| Court | Mississippi Supreme Court |
| Parties | LUCIUS v. HARRIS |
1. MASTER AND SERVANT.
Where servant's injury occurred in Louisiana, servant's substantive rights against master were governed by Louisiana law.
2. MASTER AND SERVANT.
In Louisiana, servant assumes risk of master's negligence where fully aware thereof.
3. MASTER AND SERVANT.
Driver who knew that truck and loading was defective and that helper was necessary, assumed risk under Louisiana law when truck and trailer overturned.
HON THOS. E. PEGRAM, Judge.
APPEAL from circuit court of Chickasaw county, HON. THOS.E. PEGRAM Judge.
Suit by Spencer Lucius against V. L. Harris and another. From a judgment in favor of named defendant, plaintiff appeals. Affirmed.
Affirmed.
R. H. Knox, of Jackson, and J. H. Ford, of Houston, for appellant.
That it is the primary and nondelegable duty of the master to provide and furnish the servant a reasonably safe place to work and reasonably safe and suitable machinery and appliances and keep them in safe and suitable repair, to provide a sufficient number of competent fellow servants to enable the work to be done in a reasonably safe manner, and to warn and instruct the servant as to the dangers of his employment and as to the proper and safe manner of performing same, and that the master is liable to the servant for failure to exercise reasonable care in the performance of such duties, is Horn Book law.
Tiffany's Per. & Dom. Rel. (Ed. of 1896), 483, par. 266; 39 C. J. 285, par. 412; Masonite Corp. v. Lockridge, 163 Miss. 364, 140 So. 223; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Roff v. Summit Lbr. Co., 119 La. 571, 44 So. 302; Lyons v. N. O. T. & M. Ry. Co., 141 La. 24, 74 So. 584.
It was the duty of appellant to load the cotton in the manner required by appellees and as he was instructed by them. He was assured by them that to so load and "boom" the cotton was safe for the trip to New Orleans. In obeying these orders with these assurances, appellant did not assume the extraordinary risks created thereby, and was not guilty of contributory negligence in so doing.
4 Labatt's Master & Servant (1913 Ed.), chapters LVI and LVII; 18 R. C. L., pp. 655-658, pars. 149, 150; 39 C. J., pp. 794-800 and 801-803, beginning with par. 1008, and p. 894, par. 1115, et seq.; Thompson Com. Neg. (2 Ed.), sec. 5379; Lee v. Powell Bros. etc., Co., 126 La. 51, 52 So. 214; Miss. Utilities Co. v. Smith, 145 So. 896; 28 L. R. A. (N. S.) 1218.
The "ordinary" risks of the service are best defined as those risks which remain after the master has used all reasonable care to remove them, and do not include any risks or hazard due to the master's negligence.
28 L. R. A. (N. S.) 1219.
The general rule is that a servant does not assume the risk of dangers created by the master's negligence.
39 C. J. 692; Lyons v. New Orleans, etc. , R. Co., 141 La. 42, 74 So. 584; Wirth v. Alex Dussel Iron Works, 140 La. 1056, 74 So. 551; Bailey v. Louisiana, etc., R. Co., 129 La. 1029, 57 So. 325; Rogers v. Hiram J. Allen Lbr. Co., 129 La. 900, 57 So. 166, 39 L. R. A. (N. S.) 202; Underwood v. Gulf Refining Co., 128 La. 968, 55 So. 641; McGin v. McCormick, 109 La. 396, 33 So. 382; Thompson v. New Orleans, etc., R. Co., 108 La. 52, 32 So. 177; James v. Rapides Lbr. Co., 50 La. Ann. 717, 29 So. 469, 44 L. R. A. 33; Mattise v. Consumers' Ice Mfg. Co., 46 La. Ann. 1535, 16 So. 400, 49 Am. St. Rep. 356; 28 L. R. A. (N. S.) 1215-1244; Roff v. Summit Lbr. Co., 119 La. 571, 44 So. 302; 4 Labatt's Master & Servant, 3866, par. 1347; 39 C. J. 786, par. 986; 39 C. J. 790, par. 989.
Where the servant continues in the employment after the master has promised him to remedy the defective machinery and implements within a certain period, the defense of assumption of the risk "cannot be relied upon by the master" in a case of injury sustained during the period covered by the promise, "unless the danger therefrom is so great and imminent that a reasonably prudent man would not remain."
4 Labatt's Master & Servant. 3880, et seq., par. 1349; Tiffany's Per. & Dom. Rel. (1896 Ed.), 489; 39 C. J. 794, par. 996; 4 Labatt's Master & Servant, 3885-3893, pars. 1351 and 1352; 39 C. J. 836, pars. 1048, 1049; 4 Labatt's Master & Servant, 3932, 3949, par. 1366; 3 Labatt's Master & Servant, 2912, 2916.
It is clear that the employer cannot hold the servant to the exercise of an unerring choice of the best method of obviating difficulties and lessening danger.
4 Labatt's Master & Servant, 3910; Whitworth v. Shreveport Belt Ry. Co., 112 La. 363, 36 So. 414, 65 L. R. A. 129; Fletcher v. Ludington Lbr. Co., 142 La. 151, 76 So. 592; Graves v. G. & S. I. R. Co., 146 Miss. 130, 110 So. 234.
The most that could be said in this case is that it was a question of fact for the jury whether appellant used reasonable and ordinary judgment in taking the course he did, under the circumstances with which he was confronted at the time.
3 Labatt's Master & Servant, 3367, par. 1235, page 3553, et seq., par. 1274; 18 R. C. L. 654, par. 147; Legan & McClure Lbr. Co. v. Fairchild, 155 Miss. 271, 124 So. 336.
This court will reverse a cause in a proper case for inadequacy of the damage allowed in the lower court, and remand the case for new trial as to the amount of damages only.
Thompson v. Cloud, 150 Miss. 697, 116 So. 814; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Hicks v. Corso & Cefalu, 131 Miss. 659, 95 So. 636.
C. H. McCraine, Jr., of Houston, and Leftwich & Tubb, of Aberdeen, for appellee.
Under the rule, in the absence of any emergency, where a servant knows or ought to know that the master has furnished too few servants for the reasonably safe prosecution of the work, he assumes the risks incident to work ing with insufficient assistance. And especially is that so where the manner of doing the work is left to the servant who is an expert. Where a servant discovers that the force for work is insufficient, it is his duty to quit the service.
39 C. J., "Master & Servant," section 947.
Except in so far as modified or abrogated by statute, and in the absence of a contract to the contrary, the rule in most jurisdictions is that, where the servant has actual knowledge of the dangers to which the service exposes him or where the defects or dangers are so patent and obvious that in the exercise of ordinary care in the performance of the services for which he was employed, he should have known of their existence, he assumes the risk of injury incident to their existence.
39 C. J., Master & Servant, sections 933-957.
In any event, whether the truck was in bad order or not, the evidence clearly and manifestly and without dispute discloses that appellant was guilty of contributory negligence, which precludes a recovery in this case.
Yazoo City Transportation Co. v. Smith, 78 Miss. 140, 28 So. 807; M. & O. R. Co. v. Clay, 156 Miss. 463, 125 So. 819, 75 L.Ed. 759; Teche Lines, Inc. v. Skelton, 146 So. 21; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; D'Antoni v. Teche Lines, Inc., 143 So. 415; Edward Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 92; Pollich et al. v. Sellers, 42 La. Ann. 623, 7 So. 786, 787; McCants v. Tremont Lbr. Co., 128 La. 487, 54 So. 967; Ladnier v. Stewart, 123 La. 206, 48 So. 890; Price v. Lee Lbr. Co., 125 La. 888, 51 So. 1025; Pulos v. Denver R. Co., 37 Utah 238, Ann. Cases 1912C 218; Dill v. Smith Lbr. Co., 57 So. 1006; Wiggins v. Standard Oil Co., 141 La. 532, 75 So. 232; Lehon. v. New Orleans Public Service, 123 So. 172, 10 La. App. 715; Thompson v. Morgan, 119 So. 69, 167 La. 335.
The master is not responsible for the dangerous situation of the servant, if the danger was known to the servant or was obvious to any one of ordinary intelligence, and the servant accepted the employment knowing the danger and with ample opportunity to guard against it.
Wiggins v. Standard Oil of La., 141 La. 532, 75 So. 232.
Phillips was an independent contractor. Neither he nor appellant were servants of appellee Harris.
The Texas Co. v. Brice, 26 F.2d 164; Gulf Refining Co. v. Wilkinson, 114 So. 503; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Lewis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; McDonald v. Hall-Nelly Lbr. Co., 165 Miss. 143, 147 So. 315; 7-8 Huddy's Automobile Law, pp. 305, 306 and 307, et seq., sec. 120; pp. 338, 339 and 341 et seq., secs. 121, 130, 131; New Orleans Baton Rouge, Vicksburg & Memphis R. Co. v. Norwood, 62 Miss. 565; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Bear Creek Mill Co. v. Fountain, 94 So. 230, 130 Miss. 436.
Appellant brought this action against one Phillips and appellee to recover damages for an injury received by him while driving a truck with a trailer attached loaded with cotton. Appellant alleged that he was employed by Phillips and appellee to drive the truck; that the truck was owned by Phillips; that the truck was defective and unsafe; that he was not furnished sufficient help to drive the truck the distance he had to drive it, and that appellee required him to load the cotton on the truck in an unsafe manner--from all of which the injury resulted. Phillips made no defense. The trial resulted in a judgment against him for one thousand dollars, from which he does not appeal, and a directed verdict in favor of appellee, from which appellant prosecutes this appeal.
Harris defended upon three principal grounds: That the relation of master and servant did not exist between him and appellant that the proximate cause of appellant's injury was his own negligence; and that appellant assumed the...
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