Poplarville Lumber Co. v. Kirkland

• Decision Date: 09 January 1928
• Docket Number: 26815
• Citation: 149 Miss. 116,115 So. 191
• Court: Mississippi Supreme Court
• Parties: POPLARVILLE LUMBER CO. v. KIRKLAND. [*]

115 So. 191

149 Miss. 116

POPLARVILLE LUMBER CO. v. KIRKLAND. ^[*]

No. 26815

Supreme Court of Mississippi

January 9, 1928

Division B

1. MASTER AND SERVANT. Negligence in not furnishing safe place to work for employee removing lumber ends from cut-off saw held for jury.

Evidence in action for injury to employee in a planing mill from falling against cut-off saw while in performance of his duties of removing the ends of lumber cut off by such saw held sufficient to go to jury on the grounds of negligent failure to furnish a safe place to work, because of the height to which the pieces were allowed to accumulate placing him in danger of coming in contact with the saw, and on the ground of negligence in not housing the saw.

2. MASTER AND SERVANT. Submitting question of employer's liability for not giving warning, unnecessary because of employee's understanding of danger, held error.

There being nothing complex about employee's surroundings while performing his duties of removing ends of lumber from cut-off saw in planing mill, and the evidence showing that he fully understood and apprehended the danger of coming in contact with the saw, warning thereof was unnecessary, and it was error to submit the question of employer's liability in not giving such warning.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county. HON. J. Q. LANGSTON, Judge.

Action by Toxey Kirkland, by next friend, Mrs. Rachel Kirkland, against the Poplarville Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

J. C. Shivers, for appellant.

Appellant should have been granted peremptory instruction. Most of the following cases have been decided since the passage of the statute on assumption of risk and contributory negligence: Telegraph Company v. Cosnahan, 105 Miss. 615; Yazoo & M. V. R. Company v. Perkins, 106 Miss. 111, 66 So. 273; Mississippi Central Railroad Company v. Bennett, 111 Miss. 163, 71 So. 310; Yazoo & M. V. R. Company v. Downs, 109 Miss. 140, 67 So. 692; Crossett Lumber Company v. Land, 121 Miss. 834, 84 So. 15.

The appellee was not entitled to recover under the second and fourth counts of his declaration, both of which allege the proximate cause of his injury to be the failure of the defendant to warn him of the danger of slipping on the loose boards and of falling against the saw. Appellee was more than seventeen years old at the date of his injury, and the law presumes in the absence of proof that he was a person of ordinary intelligence and could exercise his faculties of reasoning, and the record itself shows positively both by the testimony of appellee and all of the other witnesses that he did know all about the situation and that he did know that if he came in contact with the saw in question he would be injured, and that he did know that if he stepped on a loose board his foot was liable to slip and he was liable to fall against the saw. Dobbins v. Lookout Oil & Refining Company, 133 Miss. 248, 97 So. 546, is exactly in point on this question and is decisive of the same in favor of the appellant.

J. M. Morse, Jr., for appellee.

Appellant contends that the peremptory instruction should have been given, and urges three reasons for his contention: 1st No negligence on part of appellant--it was simply an accident for which the appellants were not liable. 2nd. The saw was a necessary part of machinery, nothing was hidden or unusual, and the appellee knew of the dangers. 3rd. The place was reasonably safe. If wrong in these contentions, then the instructions were wrong. In support of appellant's contention he cites the following cases: Telephone Co. v. Cosnahan; Railroad Co. v. Perkins; Railroad Co. v. Bennett; Crossett Lumber Co. v. Land; and Dobbins v. Lookout Oil Co. Telephone Co. v. Cosnahan, is not in point and cannot be an authority in this case, because in that case the assumption of risk was a defense. Now this defense has been abolished by statute. Railroad Co. v. Perkins, does not apply for the reason that this case was subject to the defense of the assumption of risk; also the man constructed his own scaffold or so altered it that it was the same as a construction. Railroad Company v. Bennett, does not apply for the reason that the court only held in that case that the evidence was insufficient to carry the case to the jury. Railroad Company v. Downs, does not apply for the reason that the facts in the Downs case show no liability. Crossett Lumber Company v. Land, does not apply nor does Dobbins v. The Lookout Oil & Refining Company, for the reason that the facts in those cases do not make out cases of liability.

As to appellant's contentions see: 4 Labatt's Master & Servant (2 Ed.), sec. 1364, p. 3935. The master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. Shortel v. St. Joseph, 104 Mo. 114, 24 Am. St. Rep. 317. The employee may rely upon the superior knowledge and experience of the employer, unless the defect is so glaring and extreme as to make the danger of using the utensil apparent to anyone. Jenney Electric Light Co. v. Murphy, 115 Ind. 566; 3 Labatt's Master & Servant (2 Ed.), sec. 1041, p. 2750; Tissue v. B. & O. R. R. Company, 112 Tenn. 91, 56 Am. Rep. 310. See, also, R. C. L. 565, p. 76; Railroad Company v. Price, 72 Miss. 662, 18 So. 415; 39 C. J., p. 514; Hardy v. Lumber Co., 136 Miss. 355, 101 So. 489; Sec. 504, Hemingway's Code.

There is no assumption of risk by a servant where the master is guilty of negligence. See Food Company v. Alves, 117 Miss. 1, 77 So. 857; Hardy v. Lumber Company, 136 Miss. 355, 101 So. 489. Brooks v. Oil Company, 100 Miss. 849, 57 So. 228, is strikingly like the case now before the court.

As to the instructions, appellants has not pointed out why the instructions granted to appellee were wrong, and has in general terms, condemned them. Appellee was granted seven instructions, and they, together with the instructions of appellant, correctly state the law as it applies to this case. Easterling Lumber Company v. Pierce, 106 Miss. 672, 64 So. 461; Sea Food Co. v. Alves, supra; 17 C. J., p. 872.

Argued orally by J. C. Shivers, for appellant, and J. M. Morse, Jr., for appellee.

OPINION

ANDERSON, J.

Appellee brought this action in the circuit court of Pearl River county against appellant to recover damages for an injury alleged to have been received by him through the negligence of appellant, while in the performance of his duties as one of appellant's employees, and recovered a judgment, from which appellant prosecutes this appeal.

Appellee was an employee of appellant in its planing mill, and was injured while engaged in the performance of his duties in the operation of the planing mill. The declaration is in four counts. Each count sets up that appellee was a laborer in appellant's planing mill; that in the mill was a planer's saw, called a "cut-off saw," which was placed on a wood platform about three feet high from the floor, and used to cut-off or trim the ends of the lumber before the latter was run through the planer; that, when the ends were cut off by the saw, they fell on the floor; that it was a part of the duties of appellee to remove these ends of the boiler, where they were used for fuel; that, on the day the injury occurred, the ends had accumulated around the cut-off saw, and had...