Stokes v. Adams-Newell Lumber Co.

• Decision Date: 22 October 1928
• Docket Number: 27155
• Citation: 118 So. 441,151 Miss. 711
• Court: Mississippi Supreme Court
• Parties: STOKES v. ADAMS-NEWELL LUMBER CO. [*]

118 So. 441

151 Miss. 711

STOKES v. ADAMS-NEWELL LUMBER CO. ^[*]

No. 27155

Supreme Court of Mississippi

October 22, 1928

Division B

1. APPEAL AND ERROR. Judgment pursuant to verdict on conflicting evidence must stand unless there is error of law.

Unless there is some error of law, judgment pursuant to a verdict of the jury on conflicting evidence must stand.

2 TRIAL. Refusal of instruction on doctrine of employees assumption of risk held not error, where not responsive to issues and proof.

In employee's action for personal injuries, refusal of instruction to effect that employee did not assume risk of master's failure to furnish reasonably safe place to work and reasonably safe machinery or appliances held not erroneous, in view of fact that it was not responsive to issues and proof, though stating correct abstract principle of law.

3. MASTER AND SERVANT. Servant using dangerous methods when safe means are provided by master cannot recover -for resulting injuries.

In case master provides a safe means or method for doing work and the servant elects to use different and dangerous methods, he cannot recover, for resulting injury, for the reason that such acts become negligence of the servant and not of the master.

4. MASTER AND SERVANT. Refusal of instruction that knowledge of employer's foreman of manner of doing work estopped employer from defending on ground employee did not adopt safe method held not erroneous.

In employee's action for personal injuries, refusal of instruction to effect that employer was estopped from defending on ground employee did not adopt a safe way or method of doing work in case employer's foreman had knowledge of character of work and manner it was being done held not erroneous, in that it was not predicated on custom or habit of doing work in a different way with knowledge of employer.

5 EVIDENCE. Defendant is not required to prove any defense except one of affirmative nature.

Defendant is never required to prove by a preponderance of the evidence any defense except one of an affirmative nature.

6. MASTER AND SERVANT. Instruction on statutory presumption of negligence of employer as to injury to employee operating skidder held properly refused.

Instruction in employee's action for injuries to effect that employer was prima-facie guilty of negligence in case employee was injured while assisting in operation of skidder requiring employer to overcome statutory presumption of negligence held properly refused without regard to whether Hemingway's Code 1917, section 1645 (Code 1906, section 1985) is applicable to injuries received in operation of skidders.

HON. G. E. WILSON, Judge.

APPEAL from circuit court of Neshoba county, HON. G. E. WILSON, Judge.

Action by R. J. Stokes against the Adams-Newell Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

Williamson & Clayton, for appellant.

Watkins, Watkins & Eager, for appellee.

Argued orally by Nate S. Williamson, for appellant, and W. H. Watkins, for appellee.

OPINION

PACK, J.

Appellant, plaintiff in the court below, sued appellee, defendant in the court below, for personal injury alleged to have been sustained by plaintiff while employed by defendant.

Plaintiff's declaration alleges that he was employed as decker in defendant's logging skidder crew. Logs sawed in the woods were drawn to this skidder by means of cables attached thereto. These logs were then required to be piled or decked alongside the logging railroad track parallel thereto, to be afterward loaded upon cars and thence transported to the mill. A decking line or cable suitably attached to the skidder was used to lift and place these logs into piles or decks. This decking line coiled around a drum, operated by another employee known as drum "skinner." The declaration further alleges that there was attached to the end of the decking line a hook used for fastening a log so that the drum "skinner," by proper manipulation of the drum, could pull or lift the log into its proper place in the deck; that plaintiff had formerly worked in said skidder crew as flagman, but that the foreman of the crew changed him to decker, and, as decker, it was his duty to pull the decking line out from the skidder and hook it to the log, for the purpose of piling or decking it into its proper place in or on the deck; that, after placing the hook into the log, it was then the duty of the drum "skinner" to place the log, and was no part of plaintiff's duty.

The declaration further alleges that, in carrying said decking line out at the time of the injury, he was required to walk over this deck or pile of logs; that these logs were negligently stacked or piled, the pile being "loosely constructed," made easy to dislocate and caused to roll or fall, as plaintiff walked over them in carrying said line, thereby rendering it an unsafe place in which to work.

It is also alleged that "said skidder and drum or machinery was in such defective condition, or was being so operated," as to render it difficult for the plaintiff to pull the line out as he attempted to walk over the pile of logs, and due, as it is alleged, to the defective way in which said logs were piled, and to the defective condition of the "skidder and drum, or by its negligent operation," a log on which plaintiff stepped rolled and he was made to lose his footing, his feet slipping from under him causing him to fall across the logs and to sustain the injury sued for.

Defendant pleaded the general issue and gave notice thereunder that it would prove if plaintiff received an injury, which was denied, that it was due to his own negligence, and in failing to do the work in the safe way furnished by defendant; and, further, if there was an injury, it was due to one of the normal risks incident to the employment which was assumed by plaintiff when he accepted said employment.

The evidence being in conflict, the cause was submitted to the jury, resulting in a verdict for the defendant.

Unless there is some error of law, the judgment must stand.

The court refused plaintiff an instruction invoking the doctrine that plaintiff did not assume any risk of the failure of the master to furnish plaintiff with a reasonably safe place in which to work, or failure to furnish reasonably safe machinery or appliances with which to work. This instruction announced an abstract principle of law, but a refusal to grant it will not constitute reversible error, unless it was responsive to the issues and proof. It is true a mention of assumption of risk is made in the notice under...