McKinnon v. Braddock

• Decision Date: 25 May 1925
• Docket Number: 24977
• Citation: 104 So. 154,139 Miss. 424
• Court: Mississippi Supreme Court
• Parties: MCKINNON v. BRADDOCK. [*]

104 So. 154

139 Miss. 424

MCKINNON v. BRADDOCK. ^[*]

No. 24977

Supreme Court of Mississippi

May 25, 1925

Division B

1. APPEAL AND ERROR. Every material fact which plaintiff's evidence tended to show taken as true in determining whether court properly refused to direct a verdict for defendant.

In determining whether court erred in not granting defendant's motion for directed verdict, every material fact which plaintiff's evidence tended to show, either directly or by necessary inference, should be taken as true.

2. MASTER AND SERVANT. Whether employee assisting in unclogginff conveyor chains was performing duties, ar did so contrary to instructions, held for jury.

In action for injuries to employee, whose regular duty was to attend roller bed on floor of sawmill, sustained when he went below floor to assist in unclogging conveyor chains, question of whether employee went below floor for such purpose as part of his employment, so as to make employer liable on theory that it failed to furnish him safe place in which to work, or went below floor merely to assist fellow employee, contrary to instructions, held for jury.

3. MASTER AND SERVANT. Employee furnished safe place cannot recover for injury from placing himself in dangerous place not called for by duties.

Employee who has been furnished safe place to work, and is injured as result of placing himself in a dangerous place not called for by his duties, in order to assist fellow employee, cannot recover.

4. MASTER AND SERVANT. Refusal to instruct on defense employee had been injured in dangerous place not called for by duties held error.

In action for injuries to employee, whose principal duty was to attend roller bed on floor of sawmill, which were suffered when under floor assisting in unclogging conveyor chains refusal to instruct on defense, relied on by employer, that employee had been furnished safe place to work, had been instructed not to go under floor, and was injured as a result of placing himself in a dangerous place not called for by his duties in order to assist fellow employee held reversible error.

HON. C C. MILLER, Judge.

APPEAL from circuit court of Clarke county, HON. C. C. MILLER, Judge.

Action by R. H. Braddock against J. T. McKinnon. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

J. L. Buckley and Adams & Fatheree, for appellant.

The appellee sues for twenty-five thousand dollars damages for injuries he alleges he received in April, 1922, while employed by appellant, J. T. McKinnon, at his sawmill. He bases his right of recovery upon the usual allegations of failure of the defendant to provide a safe place in which to work and safe machinery and appliances with which to perform his work. His clothing in some way caught on a revolving shaft.

Appellee failed to show by any sort of evidence that the construction of the mill floors was not in accord with the usual and customary method of construction. Appellee in his own testimony admits that there was a safe route that he could have taken to get to the man Pruett, but he elected to go under an alleged dangerous route which dangers he admits were open and obvious.

Appellant admitted himself that the route appellee took to go to assist Pruitt was dangerous and stated that it was impossible to construct a sawmill without some dangerous places, but appellant in the construction of his mill had these shafts, pulleys, conveyor chains, put under this upper floor and provided an undisputedly safe route to reach them when necessary to work on them. In view of the undisputed testimony of all the witnesses and the admissions dragged out of the appellee, one fact stands out, namely: If Braddock had not gone through the narrow and admittedly open and obviously dangerous route and had chosen the admittedly safe route he would not have been injured. How then can any negligence be attributable to appellant when the sole cause of his injuries was his selection of a dangerous route when appellant had provided him a safe route. Section 504 of Hemingway's Code, does not apply in this case because no negligence has been shown on the part of the appellant, therefore, appellant's peremptory instruction should have been granted.

The second alleged element of negligence fails because it is not sustained by any evidence that the set screw or bolt was placed in said collar in a careless and unusual way and manner and if it had so shown it is clearly shown that appellee never would have come in contact with the shaft if he had not taken voluntarily the narrow and unsafe route and consequently would not have been injured. The third element of negligence was that the floor was littered up with slabs and sawdust.

Appellee here admits that it was his duty to remove the very thing of which he complains in his declaration as causing his injuries. This appellee was truly the author of his own injuries in selecting the dangerous route and in permitting the slabs and sawdust to litter up the floor and is not entitled to recover therefor, he being a grown man and in his right mind.

We respectfully submit that the court below fatally erred in refusing the instructions numbered 8 to 13 inclusive, asked for by appellant and more especially numbers 10 to 12. This court in J. J. Newman Lumber Co. v. Dantzler, 107 Miss. 31, 64 So. 931, decided that the court below erred in refusing instruction number 9 asked by appellant therein. The same principle applies in the court's refusal of instructions number 10 and 12 herein and without quoting their language ask the court to compare the language of number 9 quoted in said case with numbers 10 and 12 herein.

Under all the testimony in this case instructions number 2, 3, 4 and 5 asked for and given appellee should not have been granted at all and granting them they certainly should have modified by adding, "If the jury believe from the evidence his duties called him to such place and that the dangers were not obvious." Yazoo & Mississippi Valley R. R. v. Hullum, 119 Miss. 229, 80 So. 645. "It is elementary law that employees assume the obvious risks incident to their employment." Using the language of this court in Ragland v. Native Lumber Co., 117 Miss. 602, 78 So. 542: "This suit is a somewhat strained effort to impose liability when none in fact exists." The injury is the result of a reckless act of the employee which the master could not foresee or control.

We respectfully submit that this case should be reversed and dismissed.

Watkins, Watkins & Eager, also for appellant.

The refusal of instruction No. 11 for the appellant was erroneous. The evidence was undisputed that the appellee had been instructed never to go under that mill when the mill was in operation, and if there was no conflict in respect thereto, and the instruction stated the law correctly, the appellant was entitled to have the jury pass on the facts.

Before the plaintiff could recover he must have been in the performance of some duty incident to his employment. If he had no duty to perform under the mill while in operation, he was wrongfully there, and the appellant was not liable, in spite of his injuries. If the duties of the appellee forbade him going under the mill while it was in operation, even if debris was permitted to accumulate under the mill, or even if there was an unguarded set-screw thereunder, the appellee in going under the mill while the same was in operation was exposing himself to a hazard not required by his employment. Under such circumstances the appellant was not liable and with respect thereto we submit the following authorities: Richmond & D. R. Co. v. Finley (C. C. A.), 63 F. 228.

The master has the right to determine the purposes for which equipment shall be used, and to say what employees shall have duties to perform in respect thereto. If the appellee went under the plant while it was in operation, in violation of positive instructions from his employer, then the appellee was using the equipment for a purpose to which the appellant had not assented, and subjecting himself to a hazard not incidental to his employment. We direct the attention of the court to the following authorities upon that point: Illinois Central R. R. Co. v. Daniels, 73 Miss. 258; Bell v. Refuge Oil Mill, 77 Miss. 387, directly in point. Ten Mile Lumber Co. v. Garner, 117 Miss. 814.

The court below committed error in refusing instructions Nos. 10 and 12, asked by the appellant.

In instructions Nos. 10 and 12 the appellant, in substance, asked the court to instruct the jury that, even if appellee was justified in going under the mill, if he had the choice of methods, or choice of ways, in reaching his point of destination, and chose a dangerous instead of a safe one, that the appellant would not be liable therefor.

In other words, the great preponderance of the evidence, we submit, established the fact that the appellee had the choice of two routes in reaching the point of his destination, one of which would in no manner have exposed him to the machinery in question, and he voluntarily chose a route which he claims was attended with danger. Upon that point we submit the following authorities. Davis, Director General, v. Hand (C. C. A. 8th Circuit), 290 F. 73; Natchez Cotton Oil Co. v. McLain, 33 So. 723; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300; J. J. Newman Lbr. Co. v. Dantzler, 107 Miss. 31, 64 So. 931; Ovett Land & Lbr. Co. v. Adams, 109 Miss. 740; Buckeye Oil Co. v. Saffold, 125 Miss. 407.

S. A. Witherspoon, for appellee.

It is the contention of the appellee that the facts show a clear case of negligence on the part of the master in failing to provide a reasonably safe place for the appellee to work and reasonably safe machinery...