Planters' Oil Mill v. Wiley

• Decision Date: 06 May 1929
• Docket Number: 27846
• Citation: 122 So. 365,154 Miss. 113
• Parties: PLANTERS' OIL MILL v. WILEY
• Court: Mississippi Supreme Court

122 So. 365

154 Miss. 113

PLANTERS' OIL MILL v. WILEY

No. 27846

Supreme Court of Mississippi

May 6, 1929

(Division B.)

1. MASTER AND SERVANT. Employee not under duty of inspecting

machinery operated by him to see whether it is safe does not assume risk of master's negligence; employee not under duty of inspecting machinery operated by him does not assume risk of negligence of another employee, whose duty it is to inspect (Hemingway's Code 1927, section 518).

Under chapter 156, Laws of 1914 (section 518, Hemingway's Code of 1927), an employee does not assume the risk of his employment, where the master is negligent and where the employee was not under duty to inspect the machinery operated by him to see whether it was in a safe condition, but was only charged with the duty of repairing such defects as developed in the operation thereof. He does not assume the risk of the negligence of another employee, whose duty it was to inspect the machinery and see that it was in a safe condition.

2. MASTER AND SERVANT. It is master's nondelegable duty to provide employees working around machinery with safe place or instrumentality.

It is the duty of the master to provide employees who work around machinery with a safe place, or a safe instrumentality, for doing this work. This is a nondelegable duty, and a master is guilty of negligence, where an employee engaged for that purpose by the master was negligent.

Division B

APPEAL from circuit court of Tunica county.

HON. W A. ALCORN, JR., Judge.

Action by Tom Wiley against the Planters' Oil Mill. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

John W. Crisler, of Clarksdale, for appellant.

The record shows without dispute that it was the duty of the plaintiff to examine, inspect and repair this machinery. He cannot, therefore, recover for defects existing in it.

26 Cyc., page 1104.

If the machinery became unsafe, it must have done so in the progress of the work. This being true, the plaintiff cannot recover, according to the established rule in such cases.

26 Cyc., page 1097, par. B; Hope v. Railroad Company, 98 Miss. 822, 54 So. 369.

There must be proof of such a defect that the master should have known it by the exercise of reasonable and ordinary care.

4 Thompson on Negligence, sec. 3864; 2 Labatt on Master & Servant, sec. 832, page 2293; Hope v. Railroad Company, 54 So. 369; A. & V. R. R. Co. v. White, 106 Miss. 142; Mississippi Central R. R. Co. v. Bennett, 111 Miss. 163; 2 Labatt, Master and Servant, sec. 832, 20 A. & E. Ency. Law, 86-92; 26 Cyc. 1410 to 1417, inclusive, and 1444 et seq.; 4 Thompson on Negligence, sec. 3864 et seq.; Y. & M. V. R. R. Co. v. Downs, 109 Miss. 140, 67 So. 962; A. & V. R. R. Co. v. White, 106 Miss. 141, 63 So. 345; Wabash Ry. Co. v. McDaniels, 107 U.S. 434, 2 S.Ct. 932, 27 L.Ed. 605.

In the case of Hope v. Railroad Co., 98 Miss. 822, 54 So. 369, it was decided that the master is responsible to the servant only for injuries received through his negligence, and the burden of proving such negligence is upon the servant, to the same extent that it is upon all other plaintiffs seeking to recover on the ground of negligence.

1 Labatt on Master and Servant, Employer's Liability, sec. 414.

Sec. 3801, Vol. 4, Thompson on Negligence, "Correlative Duty of Master and Servant with Respect to Knowing and Finding Out."

Section 4664, Vol. 4, Thompson on Negligence; Thompson v. Planters' Compress Co., 106 S.W. 470; Sheman Oil Mill v. Neff, 159 S.W. 141; Cisco Oil Mill v. Van Goem, 166 S.W. 439.

The evidence fails to show any defect in the machinery, but if we are wrong in this, it is unquestionably true that the master had no notice of the defect. Knowledge of the witness, Walter Williams, an employee, was not knowledge of the master. The plaintiff and Walter Williams were fellow-servants and being such, the negligence of Walter Williams, if any, was not attributable to the defendant company.

Lagrome v. R. R. Co., 67 Miss. 592; Railway Co. v. Petty, 67 Miss. 255.

J. D. Magruder, of Tunica, for appellee.

As to whether machinery is defective or not is a question for the jury.

A. & V. R. R. Co. v. Groom, 52 So. 703.

The contention of counsel for appellee in this case is the doctrine of res ipsa loquitur applies.

53 A. L. R. 1486.

The defendant appellant has never met the prima-facie case made.

The duty of the master relative to furnishing a safe place to work cannot be delegated to fellow-servants, and the risk relative thereto is not such as ordinarily assumed by the servants.

A. & V. R. R. Co. v. Grooms, supra, 97 Miss. 201, 52 So. 703; Y. & M. V. R. R. Co. v. Smith, 117 So. 339, 150 Miss. 882.

Defendant says, "If the defect existed in the machinery, the plaintiff cannot complain as it was his duty to inspect the machinery and repair it." We say that the evidence is to the contrary.

Defendant says, "If the machinery was unsafe, it became unsafe in the progress of the work and the plaintiff cannot recover therefor."

To support this proposition counsel cites the case of Hope v. Railroad Company, 98 Miss. 822, 54 So. 369.

This case is not applicable to the case at bar for the reason that in the Hope case, supra, the court decided--"When a servant is injured by reason of a defect in a tool furnished by the master, if must be shown that the master had knowledge, actual or constructive, of such defective tool." In that case it was shown that the defendant had no knowledge, actual, or constructive, of the defect, but in the case at bar, it is shown conclusively, that the master, the Planters' Oil Mill, appellant, did have knowledge, because Walter Williams, servant of the master knew of the defect of the broken or "busted" washer, and of the stripped thread off of the bolt, which was the approximate cause of the accident, and the knowledge of the servant is the knowledge of the master.

Labatt's Master and Servant (2 Ed.), section 2229.

Where the gist of an action is negligence, the question whether the defendant has been negligent so as to subject him to liability, and whether the plaintiff has been negligent so as to exempt the defendant from liability is one of fact for the jury under the instructions of the court.

Memphis & Charleston R. R. Co. v. Whitfield, 44 Miss. 466; Y. & M. V. R. R. Co. v. Humphries, 83 Miss. 735, 36 So. 154.

Counsel for defendant, appellant, cites a great number of cases to establish the fact that the plaintiff appellee, assumed the risk and hazards of his position; none of these cases are from this state. In Mississippi, there is no assumption of risk in cases like the case at bar.

Section 504, Hemingway's Annotated Code of Mississippi 1917.

Abolishing doctrine of assumption of risks of employee when the master is negligent.

Edwards v. Haynes Walker Lumber Co., 74 So. 284; Labatt's Master & Servant (2 Ed.), sec. 1110.

Our position further in this case is that it was the duty of the master to furnish a reasonably safe place in which the servant was employed to work and to maintain it in a safe condition.

26 Cyc., p. 1097; Finkbine Lbr. Co. v. Cunningham, 57 So. 916; 26 Cyc. 1529-1530-1531; A. & V. R. R. Co. v. A. B. Lowe, 19 So. 96.

Counsel for appellant cites the following cases upon which he asks this court to reverse the case:

Hope v. Railroad Co., 98 Miss. 142; A. & V. R. R. Co. v. White, 106 Miss. 142; Y. & M. V. R. R. v. Downs, 67 So. 962; Miss. Central v. Bennett, 111 Miss. 163.

All of these cases follow the rule laid down in the case of Hope v. Railroad, supra, that it must be shown that the master had knowledge actual, or constructive of the defect complained of which caused the injury; which, if our theory of the case at bar is correct, has no application.

Counsel cites Hooks v. Mills, 57 So. 545; Lagrone v. Mobile & Ohio R. R. Co., 7 So. 432; L., N. O. & T. Railroad Co. v. Petty, 7 So. 351.

These cases raise the question of fellow-servant rule and I am sure the court will immediately...