Randolph Lumber Co. v. Minchew
| Decision Date | 11 March 1935 |
| Docket Number | 31564 |
| Citation | 159 So. 849,172 Miss. 535 |
| Court | Mississippi Supreme Court |
| Parties | RANDOLPH LUMBER CO. v. MINCHEW |
1. MASTER AND SERVANT.
Employee held not precluded from recovering for injuries sustained when he was caused to fall thirty feet from trestle because of defect in rail over which hand car was being operated, on ground of assumption of risk, since assumption of risk doctrine is abolished by statute except as to conductors and locomotive engineers in charge of dangerous and unsafe cars or engines voluntarily operated by them (Code 1930, section 513).
2. MASTER AND SERVANT.
Employer held liable for injuries sustained by employee who was caused to fall from trestle by derailed hand car where employer's foreman had knowledge of defect which could easily have been remedied.
APPEAL from circuit court of Pearl River county HON. HARVEY McGEHEE, Judge.
Action by John Minchew against the Randolph Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
T. J Wills, of Hattiesburg, for appellant.
The declaration in this case does not state a cause of action.
There is no rule of law that requires the repair of buildings or structures or anything else, to make them safe when they are being torn away.
The plaintiff knew the condition of the track. He knew that the trolley car had run off. All he had to do was to catch hold of the rails with a firm grip and if it ran off the track it would in no wise affect his stability or equilibrium.
There was no duty on the master to repair the track and the injury, resulting to the plaintiff, for which he prosecutes this suit, does not place liability on the master.
Truly v. J. E. North Lbr. Co., 83 Miss. 430, 36 So. 4; Ballard & Ballard Co. v. Lee's Admrs., 115 S.W. 732; St. Louis I. M. & S. R. R. Co. v. Baker, 163 S.W. 152; Searles v. Boorse, 107 A. 838.
Hathorn & Williams, of Poplarville, for appellee.
It is not the law that where the place in which the servant is required to work has been permitted to become unsafe, and the same could be made reasonably safe without in any way interfering with the construction or demolishing work, that the master is relieved from liability for injuries resulting from his negligence in failing to make such place safe.
Hamilton Bros. Co. v. Narciese, 158 So. 467; Young v. Snell, 200 Mass. 242, 86 N.E. 282; Bone v. Fruin, etc., Construction Co., 191 S.W. 1062.
From the Hamilton Bros. case and the case of Young v. Snell it is seen that the rule is that where the servant is required to do a part of his work in a place that at the time is not changing or shifting, it is the duty of the master to use reasonable care to make said place reasonably safe, even though the place where he is doing the remainder of his work may be shifting or changing.
Appellee brought this action in the circuit court of Pearl River county against appellant to recover damages for an injury received by him while in the service of appellant, and alleged to have been caused by appellant's negligence in furnishing him as such servant an unsafe place in which to perform his work. Appellee recovered a judgment in the sum of three thousand dollars. From that judgment, appellant prosecutes this appeal.
Appellant owned a sawmill plant at Kiln, in Hancock county. The plant had been permanently closed. In connection with the mill there was a trolley line something like a quarter of a mile long on an elevated trestle about thirty feet from the ground. The line consisted of two tracks of steel rails fastened together at the joints with angle bars; these bars were bolted with from four to six bolts. Appellant was having these steel rails removed and shipped away. Appellee was one of half a dozen or more of its servants engaged in that work. A hand car was used to convey the rails to a point where they were dumped off for loading and shipment on a railroad flat car. The hand car was five or six feet long. The crew in charge of the work took up the rails immediately...
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