O'Neal v. Refuge Oil Co.

• Decision Date: 21 May 1906
• Citation: 88 Miss. 617,41 So. 67
• Parties: MARY E. O'NEAL v. REFUGE OIL COMPANY
• Court: Mississippi Supreme Court

41 So. 67

88 Miss. 617

MARY E. O'NEAL v. REFUGE OIL COMPANY

Supreme Court of Mississippi

May 21, 1906

April 1906

FROM the circuit court of Warren county, HON. OLIVER W. CATCHINGS Judge.

Mrs O'Neal, the appellant, was plaintiff in the court below the oil company, the appellee, was defendant there. The suit was for the alleged wrongful death of plaintiff's husband. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

The deceased was in the employ of the appellee as stationary engineer. A part of his duty was to pull cars into the mill by the use of a capstan and a rope, to one end of which a large hook was fastened. This hook was attached to the trucks of the car, and the other end of the rope wound around the capstan, and thus, as the capstan turned, the car was pulled into the mill. While engaged in the performance of this duty, the hook, which weighed between fifteen and twenty pounds, pulled loose from the car to which it was attached, and struck the deceased, who was standing near the capstan around which the rope was being wound, and so injured him that he died as a result of the injury. The declaration charged that the hook and other appliances used to draw the cars into the mill were of a defective and dangerous character, and that their unsuitable and unsafe condition was known to the appellee, and that deceased had no knowledge of the unsafe, defective, and dangerous character of said appliances, nor had he ever been advised or warned of their unsafe condition.

Reversed and remanded.

Theodore McKnight, for appellant.

Deceased came to his death by the negligence of the appellee in not providing safe means, ways and appliances for the performance of the work required to be done; the deceased knew nothing of his danger, and appellee did not inform him thereof, although it is shown that by a proper inspection, or by being properly informed as to what are suitable appliances to be used for roping cars, appellee might have known of the unsafe and unsuitable character of the appliances that were being used at the time as applied to the particular purpose for which they were being used.

The evidence in this case does not show an accident pure and simple, as contended by counsel, and the case of Bell v. Refuge Cotton Oil Co., 77 Miss. 387 (s.c., 27 So. 382), has no application.

The facts of this case, as shown by the undisputed proof offered by the appellant, show that the appliances used for roping cars in appellee's mill were both defective and dangerous.

The hook in use at the time of the killing of O'Neal was dangerous and defective. It was not long enough, not wide enough, and the length at the point was not enough, and the distance across the opening was too narrow, and it was not such a hook as is commonly in use for the purpose to which it was applied.

The dangerous and defective character of the hook for the purpose for which it was used was a question of fact for the determination of the jury and not of the court.

O'Neal had never, before he commenced work for appellee, been engaged in any business or employment having to do with roping cars, as he was required to do for appellee, and did not know of the dangers incident thereto.

Smith, Hirsh & Landau, for appellee.

The action of the trial judge in excluding the evidence from the consideration of the jury and directing a peremptory instruction in favor of the defendant, can be sustained on either one of two grounds, to wit: (1) the evidence shows that it was an accident pure and simple; (2) even if the appliance was defective, O'Neal, the deceased, was familiar with this defect and continued to work without complaint.

It will be difficult for the court to get from this record as exact and thorough a knowledge of the situation as the trial judge had, because the record shows that the judge, jury and counsel for the plaintiff and defendant visited the scene of the accident, and testimony was taken on the ground, and the operation of the machinery was fully displayed to the judge.

The deceased was a stationary engineer, knew how to run an engine, and was familiar with machinery, and had capacity enough to see how the machinery and appliances in question worked.

As night engineer, it was his duty to superintend and look after the whole details of the work, the doing of which resulted in the accident causing his death.

This court has settled this case by two decisions: (1) on the proposition that it is not liable for an accident, we cite Bell v. Refuge Cotton Oil Co., 77 Miss. 387 (s.c., 27 So. 382); (2) even if the machinery or appliance was defective, yet the deceased had knowledge of it and continued to use it. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507 (s.c., 34 So. 533).

OPINION

WHITFIELD, C. J.

The testimony shows beyond all controversy that the proximate cause of the death of O'Neal was the utterly defective and unfit hook used by this corporation in pulling cars in by the use of the capstan, as explained very fully in the record. The witness, Callahan, the chief engineer, shows that he improvised this hook; that it had been in use about one and one-half years before O'Neal was...