Mclemore & Mcarthur v. Rogers

• Decision Date: 05 March 1934
• Docket Number: 31098
• Citation: 169 Miss. 650,152 So. 883
• Parties: MCLEMORE & MCARTHUR v. ROGERS
• Court: Mississippi Supreme Court

152 So. 883

169 Miss. 650

MCLEMORE & MCARTHUR v. ROGERS

No. 31098

Supreme Court of Mississippi

March 5, 1934

Division B

Suggestion Of Error Overruled April 2, 1934.

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON Judge.

Action by Tom Rogers against McLemore & McArthur. From a judgment in factor of plaintiff, defendants appeal. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and G. Wood Magee, of Monticello, for appellants.

The circuit judge committed error in refusing to direct a verdict in favor of the appellant.

Appellants were not insurers of the safety of appellees.

M. & O. R. H. Co. v. Clay, 125 So. 819; Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Hooks v. Mills, 57 So. 545, 101 Miss. 91; 3 Labatt, Master & Servant, par. 919; Howard v. R. R. Co., 50 Miss. 178; Kenty v. R. R. Co., 77 Miss. 494; R. R. Co. v. Wooley, 77 Miss. 927; Southern Ry. Co. v. McClelland, 80 Miss. 700; Matthews v. R. R. Co., 93 Miss. 325.

There is no presumption of liability on the part of the appellants merely for the happening of the accident.

Schaffer v. Deemer Mfg. Co., 108 Miss. 257; R. R. Co. v. Cathay, 70 Miss. 332; Hope v. N.C. & M. R. R. Co., 54 So. 369, 98 Miss. 822; A. & V. Ry. Co. v. White, 106 Miss. 141.

Liability, if any, of the appellants, would be predicated upon negligence and not danger.

Hope v. R. R. Co., 54 So. 369, 98 Miss. 822; Seifferman v. Leach, 138 So. 563, 161 Miss. 853.

Before the appellants could be guilty of negligence, at the time of the injury the appellants must have been guilty of some breach of positive duty to the appellee.

Elliott v. R. R. Co., 111 So. 146, 145 Miss. 768; A. & V. Ry. Co. v. White, 63 So. 345, 106 Miss. 141.

Such danger as there was, if any, from the falling of concrete to the ground was one incident to the employment in which appellee was engaged, and for which appellants are not liable.

Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Robertson v. Y. & M. V. R. R. Co., 122 So. 371, 154 Miss. 182; Eastman Gardiner Hardwood Co. v. Chatham, 151 So. 556; Austin v. M. & O. R. R. Co., 98 So. 3, 134 Miss. 226; Y. & M. V. R. R. Co. v. Hullum, 80 So. 645, 119 Miss. 229; Lambert v. Miss. Cen. R. R. Co., 120 So. 177, 152 Miss. 450; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890; Yazoo City Transportation Co. v. Smith, 78 Miss. 140; Cumberland T. & T. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Shipbuilding Co. v. Carter, 121 Miss. 103, 93 So. 413.

The appellee and Henry Waller were fellow-servants engaged in a common enterprise.

Great Southern Lbr. Co. v. Hamilton, 101 So. 787, 137 Miss. 55; Hercules Powder Co. v. Hammack, 110 So. 676, 145 Miss. 304; Ozen v. Sperier, 117 So. 117, 150 Miss. 458; Greer v. Pierce, 147 So. 303; Great Southern Lbr. Co. v. May, 102 So. 854, 138 Miss. 27; Givens v. Sou. Ry. Co., 49 So. 180, 94 Miss. 830; Bradford Const. Co. v. Heflin, 42 So. 174, 88 Miss. 314; Millsaps v. Ry. Co., 69 Miss. 423; Railway Co. v. Petty, 67 Miss. 255; Lagrone v. M. & O. R. R. Co., 67 Miss. 592; Deviny v. Planters Oil Mill, 33 So. 492; Ill. Cen. R. R. Co. v. Jones, 16 So. 300.

No negligence may be predicated on the failure of the appellants to provide a guard to prevent concrete and cement spattering over.

Mitchell v. Brooks, 147 So. 660; Kent v. R. R. Co., 77 Miss. 494.

The appellant used such equipment and adopted such equipment as was in common and general use by persons of reasonable prudence.

Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 128 So. 99, 158 Miss. 346; M. & O. R. R. Co. v. Clay, 156 Miss. 463; Jones v. Y. & M. V. R. R. Co., 44 So. 813, 90 Miss. 547; 39 C. J. 450, note 57; Spindler v. American Exp. Co., 232 S.W. 690; Brendel v. Union Elec. L. & P. Co., 252 S.W. 635; Gracy v. Walsh, 201 S.W. 582; Haney v. St. Regis Min. & Smel. Co., 205 S.W. 93; Cleary v. R. E. Dietz Co., 118 N.E. 509, 222 N.Y. 126, 149 N.Y.S. 958, 164 A.D. 621; Wallace v. So. Cot. Oil Co., 108 S.E. 327, 182 N.C. 755; Nordin v. Lovegran Lbr. Co., 156 P. 587, Ore. 140; Whalen v. Union Pac. Coal Co., 168 P. 99, 50 Utah 455; Haines v. Coastwise Steamship & Barge Co., 177 P. 648, 104 Wash. 685, 185 P. 583, 108 Wash. 700; Williams v. St. Joseph Artesian, etc., Co., 214 S.W. 385; Taylor v. White, 212 S.W. 656, 156 S.W. 349; Van Landers v. West Lbr. Co., 227 S.W. 692, 239 S.W. 195; Stam v. Ogden Pckg., etc., Co., 177 P. 218, 53 Utah 248; Ferguson v. Middle States Coal & Coke Co., 89 S.E. 151, 78 W.Va. 465; First Wisconsin Trust Co. v. Chicago, M. & St. P. Ry. Co., 194 N.W. 26, 180 Wis. 648; Kent v. R. R., 77 Miss. 494; R. R. Co. v. Brown, 108 So. 503, 143 Miss. 890.

No warning was required.

Lambert v. Miss. Cen., 120 So. 177, 152 Miss. 450; Poplarville Lbr. Co. v. Kirkland, 115 So. 191, 149 Miss. 116; Y. & M. V. R. R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Dobbins v. Oil & Refining Co., 97 So. 546, 133 Miss. 248; Tatum v. Crabtree, 94 So. 449, 130 Miss. 462; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Ragland v. Native Lbr. Co., 117 Miss. 602, 78 So. 542; Railroad Co. v. Hawkins, 61 So. 161, 104 Miss. 55; G. & S. I. R. R. Co. v. Blockman, 39 So. 479, 87 Miss. 192; Osborn Lbr. Co. v. Gage, 27 So. 998.

Neither the appellant nor Henry Waller knew that the appellee was in any place of danger at the time of the alleged injury, if he was in such place of danger.

Railroad Co. v. James, 128 So. 766, 157 Miss. 607; Railroad Co. v. Collins, 117 So. 593, 151 Miss. 240; G. M. & N. R. R. Co. v. Brown, 108 So. 503, 143 Miss. 890; Austin v. Railroad, 98 So. 3, 134 Miss. 226; Lampton v. Atkins, 92 So. 638, 129 Miss. 660; Ten Mile Lbr. Co. v. Garner, 78 So. 776, 117 Miss. 814; Miss. Cen. R. R. Co. v. Bennett, 71 So. 310, 111 Miss. 163; A. & V. R. R. Co. v. White, 63 So. 345; Hope v. R. R. Co., 54 So. 369, 98 Miss. 822.

E. B. & H. J. Patterson, of Monticello, R. T. Hilton, of Jackson, and W. D. Hilton, of Mendenhall, for appellee.

Knowledge of this dangerous situation was proven on the part of the superintendent and one of the appellants. An issue of fact was sharply made that guards could be built that would have protected Rogers from such a danger. The undisputable proof is that the concrete was poured in the holes without guards and fell some thirty feet into the face and eyes of Rogers while attending the designated duties appointed him by the superintendent, and that he was injured thereby.

It is the rule of this state that servants do not assume risk of master's negligence in not furnishing reasonably safe places to work, or reasonably safe instrumentalities. A master cannot fail to furnish safe instrumentalities and escape liability because fellow servants may have contributed to plaintiff's injury.

Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80; Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; American Sand & Gravel Co. v. Reeves, 151 So. 477; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797.

Section 512, Code of 1930, provides that all questions of negligence and contributory negligence shall be for the jury to determine. And such question of negligence in the case at bar was submitted to the jury for their determination.

Section 513, Code of 1930, which section abolished the doctrine of assumption of the risk of the employee when the master is negligent, squarely applies to the case at bar. By section 512 the negligence of appellants was a jury question. By section 513 there is no assumption of risk of the employee if the jury determine upon an issue of fact that the master is negligent.

Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; American Sand & Gravel Co. v. Reeves, 151 So. 477; Barron Mtr. Co. v. Bass, 150 So. 202; New Orleans M. & C. R. R. Co. v. Cole, 101 Miss. 173.

OPINION

Griffith, J.

The testimony is sufficient to support the following findings of fact, viewed in the light of the verdict of the jury: Appellee was employed as a day laborer by appellant firm in the work of reconstructing a courthouse. On the occasion in question a steel beam of considerable weight and length was being hoisted from the ground to the top of the north outside wall, which wall was about thirty-two feet high. Appellee was directed to stand on the ground near the wall and outside thereof and to manipulate a guy line attached to the beam, so that in its ascent the beam would not strike the wall or cornice. To do this it was necessary that appellee should constantly keep his face upward and his eyes fixed upon the beam as it ascended.

There were ten of these beams placed and to be placed, each with one end on the south wall and the other end on the north wall. At appropriate intervals on the inside of the top of the north and south walls there were cups or holes left in the brick work for the reception of the ends of these beams, and, after the beams were put in place, the remainder of the cup or hole not filled by the end of the beam would be filled with concrete. While the fifth beam was being raised and had reached within about two feet of the top of the wall, and while appellee was holding the guy line and guiding the beam, with his face upturned and his eyes intently focused upon the beam, another servant working from the inside of the top of the wall was pouring concrete from a bucket into one of the receptacle cups or holes for a beam end, and at a place approximately above where appellee was engaged with the guy rope. In pouring the concrete, the servant above did it, at the instant in question, in such a negligent manner that a batch of concrete splashed over the wall and struck appellee in the face with great force, and seriously and permanently injured his right eye.

The servant pouring the concrete...