Masonite Corporation v. Lochridge

• Citation: 163 Miss. 364,140 So. 223
• Decision Date: 14 March 1932
• Docket Number: 29879
• Court: United States State Supreme Court of Mississippi
• Parties: MASONITE CORPORATION v. LOCHRIDGE

140 So. 223

163 Miss. 364

MASONITE CORPORATION v. LOCHRIDGE

No. 29879

Supreme Court of Mississippi

March 14, 1932

Division B

Suggestion Of Error Overruled May 9, 1932.

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

Action by R. G. Lochridge against the Masonite Corporation. A judgment for plaintiff was affirmed (140 So. 223), and defendant suggests error. Suggestion overruled.

Affirmed.

Gilbert & Cameron, of Meridian, and Welch &amp Cooper, of Laurel, for appellant.

The master is responsible to the servant only for injuries received, through his negligence, and the burden of proving such negligence is upon the servant, to the same extent that it is upon all other plaintiffs seeking to recover on the ground of negligence. When a servant is injured by reason of a defect in a tool or appliance furnished him by the master, one of the essential elements of negligence on the part of the master is knowledge, actual or constructive, of the existence of the defect in the tool or appliance; consequently the burden of showing such knowledge is upon the servant. In order to show constructive knowledge it was necessary for appellant to show, not only that the defect could have been discovered by a reasonably careful inspection but that the master had an opportunity, in the exercise of reasonable diligence, to have made such an inspection. In order to show that the master had such an opportunity for inspection, it was necessary for him to show, either that the defect existed at the time it was furnished by the master, or, in the event it became defective after it was so furnished, that the defect had been in existence for a length of time sufficient to have afforded appellee in the exercise of reasonable diligence, an opportunity to inspect it.

Hope v. Natchez R. R. Co., 98 Miss. 829, 54 So. 369; Railroad v. Bennet, 111 Miss. 163, 71 So. 310; Lampton v. Atkins, 92 So. 638, 129 Miss. 660.

Virgil Brown completed the work done by him Sunday night. This length of time under the evidence is not sufficient to impute knowledge to this appellant.

Cybur Lbr. Co. v. Erkhart, 79 So. 235, 118 Miss. 401.

This duty of providing a safe place is dependent upon the character of the work to be done there. Hence, when that work is one of construction, reconstruction, destruction, or repair, the risks which are incident to such places and kinds of work are assumed by the servants there employed. Neither is the duty of maintaining a safe place so absolute as to charge the master with injuries to servants resulting from the place becoming unsafe through the negligent performance of the work there to be done.

Kentucky Coal Co. v. Nonce, 165 F. 44; Gulf, Mobile and Northern R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440; Fraser v. Red River Lumber Co., 45 Minn. 235, 47 N.W. 785.

An exception to the rule requiring the employer to make safe the place where his employees are at work is said to exist where the conditions of the place are constantly changing as the work progresses, and it is obvious that the rule can have only a modified application, if indeed any at all, where the employee is required to make the place or is engaged in putting it in proper repair.

18 R. C. L., Sec. 96, page 598; Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Waterman-Fouke Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759; Gulf, Mobile and Northern R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503.

Brown, the employee whose fault is assumed to have been the cause of the accident, was a fellow-servant of appellee. And being the fellow-servant of appellee, appellee cannot recover for the negligence of a fellow-servant.

4 Labatt on Master and Servant, sections 1406-1547.

On the other hand, it has been held not to be necessary that they be at the time engaged in the same operation or particular work, or that they work at the same place, or time, or be in sight of each other; and those engaged in the master's service in effecting a common purpose may be deemed fellow-servants, although the work is done in successive stages, different parts thereof being done by different persons, and the labor performed by one set of employees being prior in time to that performed by another.

39 Corpus Juris, Secs. 659, 551, 552; L. N. O. & T. R. R. Co. v. Petty, 7 So. 351, 67 Miss. 255; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440.

Employees engaged in installing or repairing same machinery altho working at different times are fellow servants.

The master does not guarantee either the competency of co-servants, or the safety of the machinery and appliances.

Murphy v. Boston & Albany R. R. Co., 88 N.Y. 146, 42 Am. Rep. 240; Peschel v. Chicago Railroad Co., 62 Wis. 338, 269; Ryan v. Smith, 85 F. 758; McKinnon v. Norcross, 148 Mass. 533, 20 N.E. 183; McGinty v. Athel Reservoir Co., 155 Mass. 183, 29 N.E. 510; Jenkinson v. Carlin, 30 N.Y.S. 530; Neilson v. Gilbert, 69 Iowa 691, 23 N.W. 666; Illinois Central R. Co. v. Jones, 16 So. 300; Deving v. Oil Co., 33 So. 492; I. C. R. R. Co. v. Bishop, 25 So. 867, 76 Miss. 758.

As to dangers arising merely from the manner in which servants perform their duty, amounting to transitory perils, the master is not chargeable with notice thereof, nor is he charged with knowledge of extraordinary risks and hazards so as to impose upon him the duty to warn his servants concerning them.

39 Corpus Juris, Sec. 604, page 492.

Where there is a change in the safety of the appliance or place due to progress of the work the master is under no duty to furnish a reasonably safe appliance or place.

Cybur Lumber Co. v. Erkhart, 79 So. 235, 118 Miss. 401; International Shipbuilding Co. v. Carter, 83 So. 413, 121 Miss. 103.

All of the authorities are agreed that the fact of the appliance being of an approved pattern and having been bought from a reputable maker, is at least prima facie evidence that the defendant was not negligent in requiring his servant to use. But most of the cases go much further than this, holding that such facts are conclusive in, the master's favor in the absence of some circumstance which would put a prudent man upon inquiry at the time of the purchase or afterwards.

3 Labatt on Master & Servant, sec. 1055, page 2781.

The court erred in refusing the following instruction: "The court instructs the jury for defendants that if you believe from the evidence that the sole proximate cause of the injury was the failure of Virgil Brown to put a ground wire or other ground on the machine then it is your sworn duty to find for the defendants.

The failure of Virgil Brown to ground the machine was under the circumstances the negligence of a fellow servant and the master was, therefore, not liable therefor.

The court was in error in permitting the case to go to the jury on the question of damages without a proper instruction.

The verdict of the jury in this case is so excessive as to evince, passion and prejudice on the part of the jury.

Payne v. McNeeley, 85 So. 197, 123 Miss. 228.

Another principle equally fatal to an injured servant's right to recover comes into play where both he and the delinquent co-servants were engaged in the work of repairing. Under such circumstances it is held that, being engaged in the same kind of work, they assume the risks of one another's negligence.

Labatt on Master and Servant, sec. 1563.

Gilbert & Cameron, of Meridian, for appellant.

Failure to instruct experienced servant of known danger is not negligence.

Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Sufferman v. Leach, 138 So. 563.

The machine was being installed and until the installment was complete the conditions changed with each successive step.

G. M. & N. R. R. v. Brown, 108 So. 503.

Where the prosecution of the work itself by appellee, made the place and created the danger, the rule which requires the master to furnish his servant a safe place in which to work does not apply.

Masonite Corp. v. Cade, 138 So. 581.

Brown & Lochridge did work on the same machine working toward the same end and under common employment. They did not work at the same time but on the same job; they were each electricians and experts of the same profession. They were fellow servants.

Collins & Collins, of Laurel, for appellee.

Every favorable statement made by plaintiff's witnesses, if it tends to make a case for plaintiff, goes to the jury.

Walters v. Cotton Mills, 101 So. 495.

The facts in the case at bar show, that the defect, was in the place or machine, at the time it was furnished and, therefore, no time was necessary to be given for inspection. The time fixed by appellant for inspection had already passed at the time of the accident.

The assumption of risk doctrine is abolished in this state.

Section 513, Code of 1930.

The servant upon whom they are imposed is in the exercise of such duties a vice-principal without regard to his grade or rank. Such non-delegable duties include among other things the furnishing of a safe place to work; safe tools, machinery, and appliance; the inspection and repair thereof; warning and instructing servants; the selection and retention of competent employees and of a sufficient number to perform the work in hand.

26 Cyc. 1319.

But the negligence of a fellow servant in omitting to perform some act will not relieve the master of liability for an injury to an employee caused thereby, unless it was especially made the duty of the fellow servant to perform the act, although he may have been in the habit of sometimes performing it voluntarily, and without special instructions.

26 Cyc. 1288.

The court had no authority without the request, either of the plaintiff, or the defendant, to give an...