Newell Contracting Co. v. Flynt

• Decision Date: 03 June 1935
• Docket Number: 31712
• Citation: 161 So. 743,172 Miss. 719,161 So. 298
• Court: Mississippi Supreme Court
• Parties: NEWELL CONTRACTING CO. v. FLYNT

161 So. 298

161 So. 743, 172 Miss. 719

NEWELL CONTRACTING CO. v. FLYNT

No. 31712

Supreme Court of Mississippi

June 3, 1935

Division B

May 6 1935

APPEAL from circuit court of Simpson county, HON. EDGAR M. LANE Judge.

Action by Clarence Flynt against the Newell Contracting Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Watkins & Eager, of Jackson, and J. B. Sykes, of Mendenhall, for appellant.

The evidence on behalf of the appellee fails to make out any cause of action whatsoever against the appellant, and the lower court erred in refusing to peremptorily direct the jury to find a verdict for the appellant.

Wells v. Alabama & Great Southern R. R. Co., 67 Miss. 24, 31; Ozen v. Sperier, 117 So. 117; First National Bank v. Evans, 130 So. 18, 100 Fla. 740; De Latour v. Lala, 125 So. 138, 12 La. App. 341; Cybur Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235.

The duty to furnish a safe place to work does not apply to temporary perils arising in the course of employment.

Wolters v. Summerfield Co., 160 Iowa 127, 140 N.W. 388; Jakopac v. Summerfield Co., 153 Wis. 176, 140 N.W. 1060.

The rule requiring a master to furnish a servant with a reasonably safe place to work does not apply in the case of a servant employed to assist in laying a railroad track, since the place is constantly undergoing a change in character by the very work which the servant is performing, and the work requires a continuous change of place.

Meehan v. St. Louis, etc., R. R. Co., 114 Mo.App. 396, 90 S.W. 102; Zeigenmeyer v. Charles Goertz Lime & Cement Co., 113 Mo.App. 330, 88 S.W. 139; Utica Hydraulic Cement Co. v. Whalen, 117 Ill.App. 23; Lassasso v. Jones Bros. Co., 88 Vt. 526, 93 A. 266; Horton & Horton v. Hartley, 170 S.W. 1046.

The rule that a master must furnish employees with a reasonably safe place to work does not apply where the conditions are temporary and constantly changing by reason of the necessities of the work itself.

Shields v. Bergendahl-Bass Eng. & Const. Co., 187 Ill.App. 5; Morgan v. Wabash R. R. Co., 158 Ill.App. 344.

It is self-apparent that the appellee was engaged in the discharge of a very simple task, the hazards of which were obvious to any mature person, and for the reasons stated by this court such hazards were assumed by appellee as the work progressed.

Seifferman v. Leach, 161 Miss. 853, 858, 138. So. 563; Austin et al. v. M. & O. R. R. Co., 134 Miss. 233, 98 So. 3; Y. & M. V. R. R. Co. v. Hullman, 119 Miss. 232, 80 So. 645; Newman Lbr. Co. v. Dantzler, 107 Miss. 36, 64 So. 931; G. M. & N. R. R. Co. v. Collins, 117 So. 593.

If appellee attempts to stand on his evidence, at variance with his pleading, then the danger of which he complains was one known to him equally as well as to the master, and in such an event the duty to warn does not exist.

Poplarville Lbr. Co. v. Kirkland, 115 So. 192.

Edwards & Edwards, of Mendenhall, for appellee.

The servant does not assume the risk when he is hurt while performing his duties in the "manner" contemplated and directed at the instance of the employer.

18 R. C. L. 673, par. 164.

It is the master's non-deligible duty to furnish the servant a safe place to work.

Edwards v. Haynes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Benton v. Finkbine Lbr. Co., 79 So. 346, 118 Miss. 558.

Where the master is negligent, there is no assumption of risk.

Sea Food Co. v. Alves, 77 So. 857, 117 Miss. 1.

Servant continuing to use unsafe teams at master's request does not assume the risk.

Central Lbr. Co. v. Porter, 103 So. 506, 139 Miss. 66; Section 513, Code of 1930; Planters Oil Mill v. Wiley, 122 So. 365; Masonite Corporation v. Lochridge, 140 So. 223; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Seifferman v. Leach, 138 So. 563.

Employee not under duty of inspecting machinery operated by him to see whether it is safe, does not assume risk of master's negligence.

Planters Oil Mill v. Wiley, 122 So. 365; Hercules Powder Co. v. Tyrone, 124 So. 74; Randolf Lbr. Co. v. Minchew, 159 So. 849.

All the evidence tends to show that it is very likely that the injury is permanent and as to whether it is permanent or not is a question solely for the jury under all the facts and circumstances.

Miss. Central R. Co. v. Lott, 80 So. 277, 118 Miss. 816, 39 S.Ct. 391, 249 U.S. 616, 63 L.Ed. 803.

If there was any error in granting instruction for plaintiff we insist that same was cured by the instructions granted to the defendant.

Fore v. Williams, 35 Miss. 540; Wessley v. State, 37 Miss. 351; Cameron v. Watson, 40 Miss. 209; Hanks v. O'Neal, 44 Miss. 227; Head v. State, 44 Miss. 752; State v. Dalton, 69 Miss. 617; Graham v. Fitts, 53 Miss. 307.

OPINION

Griffith, J.

Appellant was a road contractor, and in the pursuance of that work several carloads of gravel were delivered to it by rail at the railroad depot in Braxton, in Simpson county. These cars were unloaded by a steam shovel, as a result of which considerable quantities of gravel would fall upon the railroad track at the place of unloading. On the occasion in question, appellee, an employee of appellant, was directed by a foreman of appellant to remove the gravel from the railroad track by the use of an instrumentality called in the declaration and evidence a "friznose," but of which a sufficient description is given that we know it was a fresno scraper, the construction and general use of which is detailed in the larger dictionaries and other standard books of general reference. The declaration avers: "That in obedience to the command of said foreman, plaintiff operated the machine propelled by mule power as directed by said foreman and was in the act of scraping up the gravel which had fallen between the rails or steel tracks of said railroad when the blade of said machine caught upon a cross-tie and was fastened or held, jerking plaintiff who had hold of the handle of said machine, in an upright manner very violently and with such force and momentum that he was lifted approximately two or three feet from the ground, wrenching his back," etc. And the declaration continued: "That the proximate cause of the injury aforesaid was the gross negligence of defendant who directed plaintiff . . . to scoop or scrape the gravel from between the rails of said railroad tracks which were covered with gravel; and the cross-ties being covered with gravel and hidden from view of plaintiff and were uneven and projected at uneven lengths under said gravel; and the place and method used by defendant aforesaid constituted a dangerous method and unsafe place for plaintiff to work; that the sharp edge of the scrape coming in contact with the cross-ties hidden with gravel would necessarily cause the machine to jerk violently; that the mules could not be stopped so as not to, hit the cross-ties, for the reason that it was impossible to know when to stop them as the cross-ties were not visible; that plaintiff was ignorant of the condition of the surface under the gravel which constituted the upper part of said roadbed and he was ignorant of the true condition of the cross-ties; that defendant knew the condition of the surface of said roadbed before the gravel was thus deposited or should have known by the exercise of ordinary care and caution and diligence; that there were other methods of removing said gravel which would have been safe."

For the reason hereinafter to be stated, the question now before the court is whether the declaration states a cause of action. Appellee insists that it does, and in his argument he states that he bottoms his case upon the proposition that the master failed to furnish him a safe place to work. Appellee says in his brief: "The law is that a master impliedly warrants the safety of the place at which the servant works and the law so advises the servant when he enters upon his work." This statement would be somewhat startling were it for the first time now asserted. The fact is, however, that briefs and arguments heretofore made in other cases disclose that such an impression seems to prevail among many of the bar, although it has been often announced by this court that the duty of the master in that regard is not an absolute duty, but is simply to use reasonable care to furnish the servant with a reasonably safe place to work. Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86, 87; Columbus & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277, 278, 279.

It is not asserted that a railroad track is such a place, when considered alone, as not to be a reasonably safe place to work, and if it were so asserted, we would be compelled to deny it as a matter of common knowledge. Thousands of men work every day throughout the country in section crews on railroad tracks. It is not asserted that the fresno was in any way defective or out of repair; nor is it shown that the fresno, when alone considered, is an unreasonably dangerous instrumentality. It is an appliance in common use in this state, particularly in road work, where hundreds, if not thousands, of workmen use them every workday.

The case of appellee, if he have a case, is not of an unreasonably safe place, nor of an unreasonably unsafe appliance, but rather must be, if at all, that he was furnished with and directed to use an instrumentality which beyond reason, was unsuitable and improper for the doing of the particular work then and there to be done. In its last analysis unsuitability of instrumentality is the equivalent of an unsuitable method or means, as to which the same rule of practical reason, measured by modern standards and modern requirements of efficiency and dispatch of work, prevails as applies to reasonably safe places to work or reasonably safe tools; and "the...