Ovett Land & Lumber Co. v. Adams

• Decision Date: 28 June 1915
• Docket Number: 16942
• Citation: 109 Miss. 740,69 So. 499
• Parties: OVETT LAND & LUMBER CO. v. ADAMS
• Court: Mississippi Supreme Court

69 So. 499

109 Miss. 740

OVETT LAND & LUMBER CO. v. ADAMS

No. 16942

Supreme Court of Mississippi

June 28, 1915

APPEAL from the circuit court of Jones county. HON. P. B. JOHNSON Judge.

Suit by M. D. Adams against Ovett Land & Lumber Company. From a judgment for plaintiff, defendant appeals.

Appellee brought suit for damages for injuries received by him while in the employ of appellant, and recovered a judgment for six hundred and fifty dollars from which this appeal is prosecuted.

Appellant owned and operated a sawmill. Logs were hauled from the ramps up an incline to the saw shed by means of a cable attached to the log car. A belt ran over a spool wheel, to which the cable was attached, and while appellee was hauling a log up the incline he noticed that the leather belt was slipping off of the wheel, and without stopping the machinery he placed his foot against the rapidly moving belt in an effort to push it back into place on the wheel, and a lip or projection in said belt struck against his foot as the belt revolved, and threw him down and injured his leg. Appellee contends that he was confronted with an unexpected emergency, and was attempting to keep the belt from slipping off the wheel, and thereby prevent an accident which would have resulted in injury both to himself and to the machinery. Appellant contends that the defective belt was not the proximate cause of the injury, and that appellant should have pulled a lever and stopped the machinery before attempting to adjust the belting, and that in failing to do so he assumed whatever risk attached to his placing his foot against the rapidly moving belt.

The court refused the peremptory instruction requested by appellant, and sent the case to the jury, who found for appellee.

Reversed and cause remanded.

Pack &amp Collins, for appellant.

As to the proposition, that plaintiff should be precluded from recovering because he voluntarily placed his foot against a rapidly moving belt, we contend that appellee cannot hide himself behind the statute abrogating the rule of contributory negligence. We admit that this statute has rescued many apparently sinking cases and has served and is serving a great purpose in the protection of that class of laborers whose lives and safety are endangered by hazardous employment, and that in the construction of this statute this court in Crawford's case, 55 So. 596, Carroll's case 60 So. 1013, and Cosnahan's case, 62 So. 824, has permitted the pendulum to swing far, and rightfully so as we believe, in favor of the employee, yet this statute was enacted to protect no such case as the one at bar. Neither this statute, nor any other law, will protect a man against his own recklessness and failure to exercise at least self protection. If this verdict can stand, then it occurs to us that a servant may wilfully and recklessly thrust his limb into any dangerous machinery of his master, or intentionally place his foot in front of a rapidly moving train, receive injuries, go into the courts and invoke this statute.

"The master is not required or expected to deal with his servant as with an automaton, as a person following a routine without intelligence. The servant may be expected to exercise some measure of intelligence and the instinct of self preservation. It is a fair rule that the servant assumes the risk of all dangers, however they may arise, against which he may protect himself by the exercise of ordinary observation and care." Woodard Iron Co. v. Marbut (Ala.), 62 So. 807, citing with approval 1 Labatt Master & Servant chapter 4.

It is interesting to note that all the proof in this case shows that...