Rose v. Pace

• Citation: 109 So. 861,144 Miss. 375
• Decision Date: 01 November 1926
• Docket Number: 25823
• Court: United States State Supreme Court of Mississippi
• Parties: ROSE v. PACE. [*]

109 So. 861

144 Miss. 375

ROSE v. PACE. ^[*]

No. 25823

Supreme Court of Mississippi

November 1, 1926

Division A

MASTER AND SERVANT.

Employer held not liable for injury caused by act of employee voluntarily attempting to uncoil knot in steel rope winding on drum when machinery was running.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by Daniel Ryan Pace against E. L. Rose. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed.

Leftwich & Tubb, for appellant.

Extracts from the plaintiff's own testimony show that he suffered the injury by his own rashness in trying to take a kink out of the steel rope while the machinery was in motion, got his hand caught between the friction wheel and the bull wheel or the drum, and several fingers were so mashed that they had to be amputated. The court will observe further that the frazzles on the rope and the projecting nut bolts had nothing to do with the injury further than to confuse the jury. The frazzles may have contributed originally to the kinking of the steel rope, but the proximate cause of the hurt was the rashness of plaintiff in trying to straighten the rope while the mill was in motion when the testimony shows that all he had to do was to signal the engineer to stop the machinery.

This court only recently held that it was incumbent on the plaintiff to prove the negligence of the master substantially as charged in the declaration and if he failed to do so, a peremptory instruction should be given. Hand v Botner, 130 Miss. 292. It was palpable negligence for an employee to attempt a task of the kind performed by the plaintiff while the machinery was in motion and his doing so was sufficient to prevent his recovery. Ovett Land & Lbr Co. v. Adams, 109 Miss. 740; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407.

Testimony of the plaintiff not only shows his experience but shows his intelligence and that he was fully informed and knew what he was doing. Experienced and intelligent as he was, plaintiff needed no instruction and no warning, though some of the mill-hands claim that they did warn him when the danger was imminent. Employees of experience do not need instruction especially about the obvious. Crossett Lumber Co. v. Land, 131 Miss. 824.

The testimony is overwhelming in this case that the machinery complained of in this case was the standard machine properly constructed and protected. The court very recently has held that if the master furnishes the standard equipment he is not guilty of negligence. G. M. & N. R. R. Co. v. Mable Nicholson, 107 So. 208.

Young & Coleman, for appellee.

The evidence for the plaintiff makes a clean, clear cut case for the plaintiff. The defendant furnished him unsafe machinery and an unsafe place to work. The knotted rope and the long bolts sticking out caused all the trouble by the rope hanging and catching the worn place in the upright plank and catching under the bolts, thereby jerking the appellee's hand into the machinery and causing the injury. And too, there was no frame or protection or safeguard for the operator of the machinery. The young man could have handled the cable all right if the unnecessary and unsafe parts of machinery had not been as they were. What is the excuse or justification in having such bolts protruding to snatch the rope, and what excuse can be offered for the knotty and frazzled cable catching and hanging over the edge of the vertical plank placed to hold the rope on the drum in winding either way?

It is contended that plaintiff below, appellee here, was guilty of carelessness in not stopping the machinery to fix the rope. Of course, the witnesses for the sawmill testified that it ought to have been stopped to correct the trouble with the wire cable and that they did so. But the plaintiff said if the bolts had not projected and caught the rope and jerked his hand down, it was not necessary to stop the machinery to fix the rope. The rope was supposed to stay on a drum which did not run unless there was friction.

The appellee had had some experience in working at a mill similar to this, but he stated that it was different from the one at which he got hurt in various respects. The knowledge of dangerous conditions does not relieve the negligent appellant. It was the legal duty of the appellant to furnish the boy a safe place and safe machinery to work with. Just answer the question as the jury did answer.

In the trial court the defendant said much about the machinery being standard. This rope was dangerously worn, knotted, and frazzled and that is not standard, and the upright plank with a hole worn in the edge of it just right to catch a non-standard rope and bolts just right to catch the rope and no frame or pieces to protect the worker from going against the machinery all make the place unsafe, dangerous and likely to cause injury.

Admitting for argument's sake that the appellee was negligent which we do not admit, it brings us to the comparative negligence law. Where there is negligence both ways, the jury is the judge as to the amount of recovery and the negligence of the injured person does not bar recovery. Some of the late cases which might apply are: I. C. R. R. Co. v. Nixon, 109 Miss. 308; I. C. R. R. Co. v....