Newell Contracting Co. v. Flynt
| Decision Date | 06 May 1935 |
| Docket Number | 31712 |
| Citation | 172 Miss. 719,161 So. 298 |
| Court | Mississippi Supreme Court |
| Parties | Newell Contracting Co. v. Flynt. |
(Division B.)
Master's duty to servant is to use reasonable care to furnish servant with a reasonably safe place to work and with reasonably safe tools.
Master is not liable to injured servant where master follows usual and customary method or system generally employed by careful and prudent men engaged in the same business, unless the unreasonable unsafeness in the method or system is so evident that impartial persons could not "well be in disagreement on the issue.
Common use of fresno scraper raises presumption ct reasonable safety and imposes on person claiming that it is unsafe or unsuitable to a particular use to allege and prove that the general use does not extend to particular use in question, together with the factual reasons therefor, or that if it does, then the fact must be so fully disclosed in detail that it may be said therefrom that the means or method is so extrahazardous that impartial persons could not well be in disagreement on it.
It is common knowledge that cross-ties lift immediately under the rails in railroad tracks.
Road contractor's employee alleging injury when fresno scraper struck against cross-tie while employee was removing gravel between rails of railroad tracks could not escape consequence of matters of common knowledge by alleging that he did not know that cross-ties were immediately under the rails, or that handle of scraper would fly up if scraper should come in contact with a cross-tie.
Master is entitled to expect that servant will exercise reasonable care in use and operation of a tool, or appliance in the normal manner to avoid injury.
Where law speaks of "reasonable safety" in a tool or appliance, or in a place to work, it means one which can be safely employed when the servant takes reasonable care Sri its normal use or operation.
Declaration alleging that employee of road contractor was injured when fresno scraper struck railroad tie while employee, as directed by foreman, was clearing gravel from railroad track in ignorance of fact that some cross-ties were higher than others held not to state cause of action.
Judgment based in whole or in material part on facts not set up in the pleadings on either side is erroneous and must be reversed, unless evidence of such facts was received without objection.
ON MOTION TO CORRECT JUDGMENT. (Division B. June 3, 1935.) [161 So. 743. No. 31712.]
1. PLEADING. Where declaration states no cause of action, defendant may demur. 2. PLEADING. If demurrer to declaration because stating no cause of action is sustained, plaintiff has right to amend, if having amendable case. 3. PLEADING. If demurrer to declaration because stating no cause of action is overruled, defendant must object to any evidence overrunning averments and move for peremptory instruction. 4. APPEAL AND ERROR. If demurrer to declaration because stating no cause of action, and defendant's objections to evidence and request for peremptory instruction are overruled, first inquiry on defendant's appeal from adverse judgment is whether declaration is sufficient, and, if not, Supreme Court sustains demurrer and returns case in order that plaintiff may amend (Code 1930, sec. 3378). 5. APPEAL AND ERROR. Where defendant, instead of demurring to declaration because stating no cause of action, pleads thereto and unsuccessfully objects to evidence overrunning declaration and moves for peremptory instruction, first question on defendant's appeal from adverse judgment is whether declaration is sufficient, and, if not, Supreme Court must reverse and remand with leave to amend, unless it appears an face of record that plaintiff cannot amend (Code 1930, sec. 3378).
Action by Clarence Flynt against the Newell Contracting Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Watkias & 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 B, E. 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 duly 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; Jakopae 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. E. 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. H. 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 lie complains was one known to him equally as well as to the master, and in such an event the duly to warn does not exist.
Poplarville Lbr. Co. v. Kirklaud, 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 Liar. Co. v. Calhoun, 140 So. 680; Seifferman v. Leach, 138 So. 563.
Employee not under duty of inspecting machinery operated by him to sec 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. Minechew, 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 [he jury under all the facts and circumstances.
Miss. Central E. Co. v. Lott, 80 So. 277, 118 Miss. 816, 39 S.Ct. 391, 249 U.S. 616, 68 L.Ed. 803.
If there 'was arty error in granting; instruction for plaintiff we insist that same was eared 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.
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 hi 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...
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