Morgan Hill Paving Co. v. Morris

• Decision Date: 30 March 1931
• Docket Number: 29259
• Citation: 160 Miss. 79,133 So. 229
• Court: Mississippi Supreme Court
• Parties: MORGAN HILL PAVING CO. v. MORRIS

133 So. 229

160 Miss. 79

MORGAN HILL PAVING CO. v. MORRIS

No. 29259

Supreme Court of Mississippi

March 30, 1931

Division A

1. MASTER AND SERVANT. Evidence held insufficient to present question for jury whether paving contractor failed to furnish reasonably safe place to work to employee engaged in unloading asphalt from open railroad cars.

Contract between paving contractor and employee called for latter to unload asphalt from railroad cars at stipulated rate per ton employee to furnish his own labor, but to use tools belonging to contractor. On very cold morning, asphalt mixture on cars to be unloaded was frozen to depth of several inches. Employee went to nearby toolhouse to look for picks but, on finding none, secured crossbars and shovels. Asphalt was piled in cars so that middle was higher than the edges. When frozen asphalt began to melt, it became slippery, and employee while using crowbar as a lever to pry asphalt loose slipped and fell from car to ground resulting in injuries complained of.

2. MASTER AND SERVANT.

Master must use ordinary care to furnish servant with tools and appliances suitable for performance of service required.

3. MASTER AND SERVANT.

Master is not bound to furnish servant with safest tools and appliances obtainable.

4. MASTER AND SERVANT.

Evidence held insufficient to present question for jury whether paving contractor failed to furnish reasonably safe tools to employee engaged in unloading asphalt from open railroad cars.

HON. C P. LONG, Judge.

APPEAL from circuit court of Prentiss county, HON. C. P. LONG Judge.

Suit by Ervin Morris against the Morgan Hill Paving Company. Judgment for the plaintiff, and the defendant appeals, and the plaintiff cross-appeals.

Affirmed on the cross-appeal, and reversed on the direct appeal, and judgment entered for the defendant.

Affirmed in part and reversed in part.

J. A. Cunningham, of Booneville, for appellant.

It was not incumbent upon the appellant to give any warning and instructions to appellee regarding any dangers or perils connected with the work in which he was engaged. Such dangers were ordinarily hazards, patent to the average workman, or such as were easily discoverable in the exercise of ordinary intelligence and care.

Appellee was a man experienced in unloading this asphalt. He made his own selection of tools and there is not the slightest hint that there was any defect in the crow bar used to prize up the frozen surface. He assumed the risk.

Y. & M. V. R. R. Co. v. Downs, 67 So. 962; Miss. Central R. R. Co. v. Bennett, 71 So. 310; Wheeler v. Laurel Bottling Works, 71 So. 743; Ingram Day Lumber Co. v. Joh, 64 So. 934; Crossett Lbr. Co. v. Land, 94 So. 15; Lambert v. Mississippi Central R. R. Co., 120 So. 177; Vehicle Woodstock Co. v. Bowles, 128 So. 98.

The crowbar is a simple tool and appellant is not liable for any defect therein.

Warsaw Southern Lumber Co. v. Cooley, 94 So. 228; Sterling Coal & Coke Co. v. Fork, 40 L. R. A. (N. S.) 837; Bear Creek Mill Co. v. Fountain, 94 So. 230; Allen Gravel Co. v. Yarbrough, 98 So. 117.

Friday & Windham, of Booneville, for appellee.

Liability of a master is predicated upon his failure to exercise due diligence or ordinary care in furnishing his servant proper or suitable tools with which to perform the task assigned, or in his lack of furnishing necessary tools to perform such duties and if the proof shows negligence upon the part of the master in the performance of this non-delegable duty, he is liable to his servant in damages for whatever damages may be sustained by reason of such negligence or failure.

Hand v. Boatner, 130 Miss. 292, 94 So. 162; Wallace v. Tremont & G. R. R. Co., 74 So. 179; 39 C. J. 326, sec. 447.

A master cannot be relieved from liability for injury to a servant on the ground that the instrumentality causing the injury was a simple appliance and that danger did not inhere in the appliance itself, but arose from the manner in which it was used, where the injury occurred from the use of the appliance in the manner that the master expected and required the servant to use it, nor will he be relieved of liability where the defect is of a kind that reasonably imports menace of substantial injury.

39 C. J. page 342, sec. 462.

The master is presumed to know, and must know, and his knowledge is superior to that of his servant, as to what is the proper method by which the work is to be performed, or as to what are the proper tools with which to perform the work.

Bliesner v. G. Riesmeyer Distilling Co., 174 Mo.App. 139, 157 S.W. 980; Winborne v. Inter-State Cooperage Co., 178 N.C. 88, 100 S.E. 194.

The general rule is that a master owes it to his servant to furnish him with a reasonably safe place in which to do his work, and is liable for injuries occasioned by his negligence in this regard.

Mobile & Ohio R. R. Co. v. Clay, 125 So. 819; Anderson v. McGrew, 122 So. 492; Planters Oil Mill v. Wiley, 122 So. 365.

OPINION

Cook, J.

The appellee, Ervin Morris, instituted this suit in the circuit court of Prentiss county, Mississippi, against appellant, the Morgan Hill Paving Company, seeking to recover damages for personal injuries alleged to have been sustained by him as a result of negligence of the appellant in failing to furnish him a reasonably safe place to work, and provide him with reasonably safe, proper, and suitable tools and appliances with which to do work which he was employed to perform for the appellant. To the declaration filed by the appellee, the appellant interposed a plea of the general issue, and gave notice thereunder that it would offer evidence to prove that the appellee was an independent contractor, and that the tool he was using at the time he received his injury was a simple tool, and consequently it was not liable for any injury resulting from the use thereof. Upon the proof offered the court refused to submit to the jury, as an issue of fact, the question of whether or not the appellant had furnished the appellee a safe place to work, but submitted the issue as to whether or not it had furnished him reasonably safe and suitable tools with which to work. Upon this issue the jury found in favor of the appellee, and fixed the amount of his damages at two thousand dollars; and from the judgment entered in pursuance of this...