Seifferman v. Leach

• Decision Date: 04 January 1932
• Docket Number: 29675
• Court: Mississippi Supreme Court
• Parties: SEIFFERMAN v. LEACH

138 So. 563

161 Miss. 853

SEIFFERMAN v. LEACH

No. 29675

Supreme Court of Mississippi

January 4, 1932

Division B

1. MASTER AND SERVANT.

It cannot be said as fixed rule that employer having belt repaired while machinery is moving is negligent.

2. MASTER AND SERVANT.

Employer was not negligent in failing to warn experienced millworker injured by revolving set screw while repairing belt.

3. MASTER AND SERVANT.

Employer's leaving set screw on adjusting collar within frame, exposed and unguarded in accordance with common practice, held not negligence.

4. MASTER AND SERVANT.

Ground of liability in respect to unsafe places. to work is not danger, but negligence.

5. MASTER AND SERVANT.

Test of whether place of making minor repairs is safe is whether employer, as reasonably prudent man, could assume that particular employee could safely do particular work at particular place, if he took reasonable care.

6 NEGLIGENCE.

Experienced mill hand catching clothing in exposed set screw within frame while lacing belt held guilty of contributory negligence requiring abatement of amount of recovery if employer was negligent.

HON. J L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sunflower county HON. J. L. WILLIAMS, Chancellor.

Suit by C. W. Leach against George Seifferman. From the decree, defendant appeals. Reversed and remanded.

Reversed and remanded.

Moody & Johnson, of Indianola, and Watkins, Watkins & Eager, of Jackson, for appellant.

The master is not required to furnish the newest, best and safest machinery, but only such as is reasonably safe and suitable and such as is in general use in like businesses.

Dobbins v. Lookout Oil and Refining Company, 133 Miss. 248, 97 So. 546; I. C. R. R. Company v. Price, 72 Miss. 862, 18 So. 415; 39 C. J., p. 313, sec. 442; Hatter v. I. C. R. R. Co., 69 Miss. 642, 13 So. 827; Kent v. Y. & M. V. R. R. Co., 77 Miss. 494, 27 So. 620; Jones v. Y. & M. V. R. R. Co., 90 Miss. 547, 44 So. 813; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99; 39 C. J. 332; Fuller v. New York, etc., R. R. Co. (Mass.), 56 N.E. 574; Delaware River Iron Ship Building and Engine Works v. Nuttall, 13 A. 65; Titus v. Bradford, B. & K. R. R. Co., 20 A. 517; Ford v. Anderson et al. (Pa.), 21 A. 18; Goodenow v. Walpole Emery Mills (Mass.), 15 N.E. 576; Ford v. Mt. Tom Sulphite Pulp. Co. (Mass.), 52 N.E. 1065; Hale v. Cheney, 34 N.E. 255; Lemoine v. Aldrich, 58 N.E. 178; Wabash Paper Company v. Webb, 45 N.E. 474.

A servant of mature age and of experience is charged by the law with knowledge of obvious dangers, and of those things that are within common observation and are according to natural law. In such case the master need not give warning of possible danger of which both parties had equal knowledge.

Mississippi River Logging Company v. Schneider, 74 F. 195.

The proof is undisputed in this case that even if it be true that the set screw was unguarded, and that the appellee, in the course of his employment, was sewing a belt, though the latter is explicitly denied by every witness present with the exception of the appellee himself, the evidence showed with equal clearness and beyond dispute that the point where appellee would have been standing sewing the belt was three and one-half feet from the set screw; that he knew of its presence and would have no occasion to go near it. That being true, the appellee was not in a position required by his employment, and therefore, the appellant is not liable.

McKinnon v. Braddock, 104 So. 154, 139 Miss. 424; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179.

The presence or absence of sawdust was not the proximate cause, and had no causal connection with his injury.

Tatum v. Crabtree, 94 So. 449, 130 Miss. 462.

Farish & Bell, of Greenville, for appellee.

The negligence of the appellant does not consist alone in leaving the set screw unguarded or uncovered, but knowing that the set screws were unguarded and uncovered and directing the appellee to sew the belt in place where he was in danger of being caught on one of the set screws and where there was loose sawdust on which he had to stand, and leaving the machinery in operation or running while the appellee was sewing the belt. Taking all of this into consideration, the chancellor was well warranted in finding that the appellant was guilty of negligence.

It is true that the appellee knew that the set screws were unguarded, but this knowledge on the part of the appellee does not relieve appellant from liability for his negligence.

City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471; Sea Food Company v. Alves, 117 Miss. 1, 77 So. 857; Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489; Darnell Lumber Co. v. Bontall, 110 Miss. 332, 70 So. 405; Edwards v. Lumber Co., 113 Miss. 378, 74 So. 284.

Argued orally by Elbert Johnson and W. H. Watkins, Sr., for appellant, and by H. P. Farish, for appellee.

OPINION

Griffith, J.

Appellee sued appellant, a nonresident, by way of an attachment in chancery and alleged in his bill that on the 24th day of June, 1930, appellee was in the employ of appellant as a helper in and around a plantation sawmill, and that on said day appellant negligently ordered appellee into a place of danger, where appellee, in the attempt to obey said order, was seriously injured by coming into contact with an exposed set screw on a revolving shaft. It appears that the set screw in question was on an adjustable collar inside the frame of that part of the equipment which supports and holds the saw firmly in place, the said collar being on the line shaft. Inside of the said frame, as best we can make out from this rather unsatisfactory record, was a pulley which carried a belt to a sawdust conveyor. Oh the day mentioned, this belt became loose, and according to appellee he was directed by his employer to go within this frame and lace said belt. In order to do so, as he says, he was brought into proximity with said revolving set screw which caught in his clothing and wound him upon the line shaft.

The bill alleges several grounds of negligence: (1) That appellant failed to furnish appellee with a safe place in which to work; (2) that appellant failed to furnish and use safe machinery; (3) that appellant failed in his duty to warn and instruct appellee how to do the work; and (4) that appellant ordered appellee into a place that was dangerous because the machinery was in motion and appellant negligently failed to have the machinery stopped.

We have been unable to discover on what theory the court adjudged liability, whether on one of the above-stated propositions or upon more than one, or upon a general combination of all of them....