Scott Burr Stores Corporation v. Morrow

• Citation: 180 So. 741,182 Miss. 743
• Decision Date: 25 April 1938
• Docket Number: 33167
• Court: United States State Supreme Court of Mississippi
• Parties: SCOTT BURR STORES CORPORATION v. MORROW

180 So. 741

182 Miss. 743

SCOTT BURR STORES CORPORATION v. MORROW

No. 33167

Supreme Court of Mississippi

April 25, 1938

Division A

Suggestion Of Error Overruled June 20, 1938.

APPEAL from the circuit court of Hinds county, HON. JULIAN P ALEXANDER, Judge.

Personal injury action by Claude Morrow against the Scott Burr Stores Corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, for appellant.

Appellee is bound by the case as made in his declaration.

Ozen v. Sperier, 150 Miss. 458, 117 So. 117.

Appellant is not liable since it conclusively appears that appellee's injury was a result solely of the negligence of appellee's fellow servant, the porter.

Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644; Lagrone v. Mobile, etc., R. Co., 67 Miss. 592, 7 So. 432; Morris v. Brookhaven, etc., R. Co., 88 Miss. 539, 41 So. 267; Tallahala Lbr. Co. v. Holliman, 125 Miss. 308, 87 So. 661; Givens v. Southern Ry. Co., 94 Miss. 830, 49 So. 180; Beale & Strayhorn v. Clayborn, 152 Miss. 681, 120 So. 812; Buckley v. United Gas Public Service Co., 176 Miss. 282, 168 So. 462; Gobeil v. Ponemah Mills, 69 A. 684.

Appellee will not be heard to contend that appellant furnished a place which was not sufficiently lighted around the elevator gate where the evidence conclusively shows that an abundance of both natural and electric lights had been provided for his use and at his easy access, and when of his own option he entered the stock room only a short time previous to the accident and did not see fit to turn on the electric light switch.

Hegwood v. Newman Lbr. Co., 132 Miss. 487; Hooks v. Mills, 101 Miss. 100, 57 So. 545; Martin v. Beck, 177 Miss. 303, 171 So. 14; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298.

There was no duty under the evidence in this case on the part of the master to warn the servant.

Poplarville Lbr. Co. v. Kirkland, 149 Miss. 122, 115 So. 191.

The mere fact that on other occasions the gate had stuck is no proof that it was left open on this particular occasion because it at that time stuck, and, consequently, no causal connection is shown between it having stuck on former occasions, and its condition on the occasion in question.

Columbus & Greenville Ry. v. Coleman, 172 Miss. 514, 160 So. 277; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86.

The master is not liable where the servant sustains his injuries as a result of momentary forgetfulness of the hazards of his employment.

Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764.

Barnett, Jones & Barnett and John E. Stone, all of Jackson, for appellee.

The declaration charges that appellant was guilty of negligence in failing to use reasonable care to provide for appellee a reasonably safe place to work, and the proof in evidence greatly preponderates to establish negligence as charged.

It is the nondelegable duty of the master to use reasonable care to furnish the servant a reasonably safe place to work and to maintain the place as a reasonably safe one.

Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; S. H. Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858; Strickland v. Woolworth & Co. , 143 Mo.App. 528; Thompson on Negligence, pars. 4856, 4863; Shearman & Redfield on Negligence (5 Ed.), par. 188; 2 LaBatt on Master Servant, par. 814; 9 R. C. L. 1245, par. 9; Stricklin v. Harvey, 179 So. 345.

Where the doctrine of a reasonably safe place to work applies, the fellow servant doctrine has no application.

Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; G. M. & N. R. Co. v. Brown, 143 Miss. 890, 108 So. 503.

The servant does not assume the risks which are the result in whole or in part of the master's negligence.

Sec. 513, Code of 1930; Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 147 So. 680.

The two cases, Davis v. Freisheimer, 219 P. 236, and Wack v. Schoenberg Mfg., 53 S.W.2d 28, are strong in appellee's favor.

Argued orally by Pat Eager, for appellant, and by Arden Barnett and Ross R. Barnett, for appellee.

OPINION

McGehee, J.

The only question presented for decision by this appeal is whether the court below erred in refusing to grant a peremptory instruction on behalf of the appellant.

The appellee was seriously injured when he fell to a depth of from 16 to 20 feet into an unguarded elevator shaft from the second floor of the appellant's mercantile store, in the city of Jackson, where he was employed as stock man to open up and carry merchandise from the stock room down to the first floor of the building as the same was needed to replenish the sales counters in the store. In going to the stairway from the place where he obtained the merchandise, it was necessary that appellee should pass within a few inches of the elevator shaft, where a wooden gate was provided for the purpose of closing the entrance or opening thereto. This gate worked up and down in grooves, and would usually be raised about 6 feet from the floor when freight was to be unloaded at the second floor. The top part of the gate would then frequently become wedged or stuck in the grooves and could not be lowered without considerable difficulty, so as to close the opening into the elevator shaft--in fact, it was often necessary for the elevator operator to be assisted by some other employee in order to prize the gate loose and pull it down. This condition had existed for several months; and, according to the testimony of some of the witnesses for the appellee, the manager of the store had personally assisted them occasionally in getting the gate prized loose in order to close the opening from the passageway into the elevator shaft. Frequent complaints had been made to him regarding the matter; and the proof disclosed, although not without conflict, that the gate was left up about 50 per cent. of the time, due either to the difficulty experienced in trying to close it when it was wedged or stuck or to the negligence of the employees in failing to close it at such times as it would not be wedged or stuck in the grooves; that the manager had instructed the employees to keep the gate closed when the elevator was not at the second floor; that it required three or four minutes for the manager to close the gate that day shortly after the accident, and he had made no effort to remedy the difficulty in order that it might be closed without difficulty.

The declaration alleged that Dave Boykin, who the evidence shows was a fellow servant, was the last person to use the elevator before the appellee received his injury, and that he carelessly and negligently failed to close the guard gate in question; but the declaration further alleged, in substance, that the appellant owed the appellee the duty of furnishing and maintaining a gate to the elevator that could be raised and lowered without great difficulty, and that the appellant knew, or should have known by the exercise of reasonable care, that a gate which would become wedged and so tight when raised that it could not be lowered without great difficulty was likely to be left open by employees on account of such difficulty in lowering the same; that the "gate was often negligently left open, due to the difficulty in closing the same and to the negligence of the said Dave Boykin"; that appellant failed to furnish and maintain sufficient light in the place where the appellee was required to work, and especially along the passageway near the elevator shaft; and, further, that the negligence of the said Dave Boykin, as well as the defective condition of the guard gate and the failure of the appellant to provide sufficient light near the elevator, all contributed to rendering the place where the appellee was required to work not reasonably safe; and alleged a failure to exercise reasonable care in that behalf.

In support of these allegations the...