Neely v. Young

• Decision Date: 27 November 1939
• Docket Number: 33809
• Citation: 192 So. 292,186 Miss. 879
• Court: Mississippi Supreme Court
• Parties: NEELY v. YOUNG

192 So. 292

186 Miss. 879

NEELY v. YOUNG

No. 33809

Supreme Court of Mississippi, Division B

November 27, 1939

Suggestion Of Error Overruled January 8, 1940.

APPEAL from the circuit court of Monroe county HON. THOS. H JOHNSTON, Judge.

Action by Mrs. Ruby T. Young, administratrix, on her own behalf and on behalf of her two minor children, against the Neely Construction Company and another to recover for the wrongful death of her husband, Wayland Young. From an adverse judgment, F. S. Neely appeals. Affirmed.

Affirmed.

Thomas J. Tubb, of West Point, for appellant.

Appellees' proof in this case showed that the day before the accident the brakes on the speed ace in question were bad, without any proof as to the nature of the defect or badness and without any proof that the master knew, actually or constructively of the badness. The appellant's proof is undisputed and uncontradicted that the brakes on the speed ace in question were good and effective just a few minutes before Young was killed and were still good and effective after the wreck. All of this was before the jury--the testimony of the witnesses, the opening statement of counsel, the declaration carried by the jury into the jury room when considering the verdict. It was very prejudicial and harmful to appellant for the jury not to be instructed that there could be no negligence charged against him on account of defective brakes.

Dr. Pepper Bottling Company v. Gordy, 164 So. 236, 174 Miss. 392.

Appellant's motion and instruction for a directed verdict should have been sustained and granted.

The rule has often been affirmed by this court that when the master furnishes a reasonably safe means or method of doing certain work and the servant elects to use a different and dangerous method, he cannot recover for the reason that such acts become the negligence of the servant and not of the master.

Martin v. Beck, 171 So. 14, 177 Miss. 303; Brown v. Coley, 152 So. 61, 168 Miss. 778; Stokes v. Adams-Newell Lumber Co., 118 So. 441, 151 Miss. 711; 39 C. J. 768, sec. 968.

Assume as we must that the method of dumping dirt on the slope was negligent, yet, there can be no liability unless this negligence caused the death.

Railroad v. Cathey, 70 Miss. 332, 337, 12 So. 253; Kramer Service Co. v. Wilkins (Miss.), 186 So. 625.

The court has the power to and should grant a new trial where the verdict is against the overwhelming weight or clearly against the great preponderance of evidence.

Yazoo & M. R. Company v. Pittman, 153 So. 382, 169 Miss. 667; M. & O. R. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Fore v. I. C. R. R. Co., 160 So. 903, 172 Miss. 451; Shelton v. Underwood, 163 So. 828, 174 Miss. 169; Universal Truck Loading Co. v. Taylor, 172 So. 756, 178 Miss. 143.

Jas. A. Cunningham and F. W. Cunningham, of Booneville, and L. A. Smith, Jr., of Holly Springs, for appellee.

Appellant's motion and instruction for directed verdict were properly denied and refused.

The master was negligent in failing to provide safe instrumentality.

Sec. 513, Miss. Code 1930; Allen Gravel Co. v. Curtis, 173 Miss. 416, 161 So. 670; Randolph Lumber Co. v. Shaw, 174 Miss. 297, 164 So. 587; Gulf, M. & N. R. Co. v. Kelly, 178 Miss. 531, 171 So. 883; E. L. Bruce Co. et al. v. Brogan, 175 Miss. 208, 166 So. 350; Crosby Lumbering & Mfg. Co. et al. v. Durham, 181 Miss. 559; 179 So. 854; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Planters' Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365.

The master was negligent in failing to adopt safe method of work.

Sec. 513, Miss. Code 1930; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Albert v. Doullut & Ewin, Inc., et al., 180 Miss. 626, 178 So. 312; Long-Bell Lumber Sales Corp. et al. v. Perritt et al., 78 Miss. 194, 172 So. 747; Gow Co., Inc. v. Hunter, 175 Miss. 896, 168 So. 264; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279; McLemore & McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Edwards v. Haynes-Walker Lumber Co., 113 Miss. 378, 74 So. 284; Labatt's Master & Servant (2 Ed.), Sec. 1110.

The servant who performs work with dangerous instrumentality, by dangerous method, under threat of loss of job, is not acting voluntarily.

Sec. 513, Miss. Code 1930; Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571; Everett Hardware Co. v. Shaw, 178 Miss. 476, 172 So. 337; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Central Lumber Co. v. Porter, 139 Miss. 66, 103 So. 506; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792.

The master's negligence was proximate cause.

Sec. 513, Miss. Code 1930; Thompson v. Miss. Cent. R. Co., 175 Miss. 547, 166 So. 353; Billingsley v. I. C. R. Co., 100 Miss. 612, 56 So. 790; Pietri v. Louisville & N. R. Co., 152 Miss. 185, 119 So. 164; Public Service Corp. et al. v. Watts, 168 Miss. 235, 150 So. 192; I. C. R. Co. v. Woolley, 77 Miss. 927, 28 So. 26; 16 Am. & Eng. Enc. Law 436; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; Cosden Pipe Line Co. v. Berry, 87 Okla. 237, 210 P. 141; Chicago R. Co. v. Schands, 57 Okla. 688, 157 P. 349; 45 C. J. 898, 900, 913, 925; Long-Bell Lbr. Co. v. Perritt, 178 Miss. 194, 172 So. 747; Roy v. Louisville Gas Co., 181 Ky. 25, 203 S.E. 855; Lancaster v. Tumey, 266 S.E. 833.

Appellant's motion for new trial was properly overruled.

Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; I. C. R. Co. v. Causey, 106 Miss. 36, 63 So. 336; S. H. Kress Co. v. Markline, 117 Miss. 37, 77 So. 858; G. & S. I. R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Oliver Bus Co. v. Skaggs, 174 Miss. 201, 164 So. 9; Chapman v. Powers, 150, Miss. 687, 116 So. 609.

Argued orally by T. J. Tubb, for appellant, and L. A. Smith, Jr., and Jas. A. Cunningham, for appellee.

OPINION

Ethridge, P. J.

Mrs Ruby T. Young, Administratrix, brought this suit as plaintiff, on her own behalf and on behalf of her two minor children, against the Neely Construction Company for the wrongful death of her husband, Wayland Young, who was employed by the company on a road project, U.S. Highway No. 78, under construction between Byhalia and Miller, Mississippi, lying in part across Coldwater River bottom, his work being the operation of what is known as a "speed ace, " used in road building. At the time of his death he was earning $ 5 a day, with overtime part of the time. He was a healthy young man, as is shown by the proof, with a life expectancy of 31 years. This suit was brought on the theory of negligence on the part of the employer in failing to provide a safe system for carrying on the work of constructing the highway. There was proof to show that under the system in use by the construction company the driver of a "speed ace" was required to carry dirt down the side of the...