Stricklin v. Harvey

• Decision Date: 28 February 1938
• Docket Number: 33093
• Citation: 179 So. 345,181 Miss. 606
• Court: Mississippi Supreme Court
• Parties: STRICKLIN v. HARVEY

179 So. 345

181 Miss. 606

STRICKLIN v. HARVEY

No. 33093

Supreme Court of Mississippi

February 28, 1938

Division A

Suggestion Of Error Overruled April 25, 1938.

APPEAL from the circuit court of Newton county, HON. D. M. ANDERSON Judge.

Action by W. A. Harvey against W. R. Stricklin to recover for personal injuries sustained in fall from temporary bridge constructed by defendant. Judgment for plaintiff, and the defendant appeals. Affirmed.

Affirmed.

Gilbert & Cameron, of Meridian, and Nichols & Huff, of Forest, for appellant.

The peremptory instruction requested by the defendant should have been given. (a) If the stringers were dangerous for appellee the danger was obvious. (b) The appellee refused the safe passage by boat offered him by appellant; and voluntarily attempted to walk the bridge stringers. (c) The appellee had the choice of three ways across the creek. He chose the only way on which the accident possibly could have happened. (d) The appellee elected a different, and to him dangerous, way to cross the creek, instead of the safe way provided by appellant.

Tatum v. Crabtree, 94 So. 449, 130 Miss. 462; Dobbins v. Lookout O. & R. Co., 97 So. 546, 133 Miss. 248; Stokes v. Adams-Newell Lbr. Co., 118 So. 441, 151 Miss. 711; Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Goodyear Yellow Pine Co. v. Clark, 142 So. 443, 163 Miss. 661; Eastman-Gardiner Hardwood Co. v. Chatham, 151 So. 556, 168 Miss. 471; Brown v. Coley, 152 So. 61, 168 Miss. 778; Hammontree v. Cobb Bros. Const. Co., 152 So. 279, 168 Miss. 844; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719; Martin v. Beck, 171 So. 14, 177 Miss. 303; Ross v. L. & N. R. R. Co., 172 So. 752, 178 Miss. 69.

The court erred in giving the first instruction for appellee. (a) The instruction predicates liability upon the appellant 's knowledge of and permission in the use of the bridge to cross the creek, when he had provided another way. (b) It is the equivalent of a peremptory instruction that the bridge was not reasonably safe as a passage way, when the weight of the evidence is to the contrary. (c) It deprives the appellant of his right to expect the appellee to take care of himself as to obvious or manifest dangers. (d) It assumes that the bridge was dangerous as a walk-way and predicates liability on danger alone. (e) It takes out of consideration by the jury the question whether the appellant followed the usual and customary method generally employed by careful and prudent men engaged in the same business, and nullifies the fourth instruction given for the appellant, which correctly announces the law on that point.

Brown v. Coley, 152 So. 61, 168 Miss. 778; Ross v. L. & N. R. R. Co., 172 So. 752, 178 Miss. 69; Edwards Hines Lbr. Co. v. Dickinson, 125 So. 93:, 155 Miss. 674; Hammontree v. Cobb Bros. Const. Co., 152 So. 279, 168 Miss. 844; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719.

The court erred in refusing the appellant 's fourth and eighth refused instructions. (a) The refusal of these instructions took from the jury's consideration the undehied fact that the appellant maintained a boat in which the appellee might have crossed the creek in absoIute safety against the particular injury which he sustained. (b) Their refusal in effect denies the right of the master to expect the servant to use the safe method provided; and holds the master for injury to the servant resulting from his own wrong and disobedience.

Anderson v. McGrew, 122 So. 492, 154 Miss. 291.

The court erred in refusing the sixth and seventh refused instructions.

The court erred in refusing the appellant 's fifth refused instruction. (a) The refusal of this instruction is tantamount to making the master the insurer of 'the safety of the servant. (b) It requires impracticable and infeasible practices.

Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Hammontree v. Cobb Const. Co., 152 So. 279, 168 Miss. 84; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719.

The overwhelming weight of the evidence is contrary to the verdict.

The facts and cireumstances were insuffieient to support the verdict.

Y. & M. V. R. R. Co. v. Lamensdorf, 177 So. 50.

D. M. Graham and Mize, Thompson & Mize, all of Gulfport, for appellee.

The temporary bridge was constructed by the defendant for the transportation of machinery and materials and also for the passage of employees going to and fro across said creek about the defendant's business of constructing the main bridge; and this being so it was the duty of the defendant to exercise reasonable care to maintain this temporary bridge in a reasonably safe condition for the passage of the plaintiff and other employees over said creek when engaged about the defendant's business. This principle of law is recognized by all of the authorities on the subject.

Stokes v. Adams-Newell Lbr. Co., 118 So. 441; Gillespie v. Thornton, 117 So. 714.

It is the master's nondelegable, paramount and continuing duty to exercise reasonable care to furnish a reasonably safe place for his servants and only after he has performed this duty does the assumption of risk by the servant come into play.

Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Murry v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Edwards v. Hanyes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Gow Co. v. Hunter, 168 So. 264, 175 Miss. 896; Norton v. Standard Oil Co., 171 So. 691, 177 Miss. 758.

It is the nondelegable duty of the master to exercise reasonable care to provide and maintain a reasonably safe place for his servants to work.

Oil Mill Co. v. Ellis, 72 Miss. 191, 17 So. 214; Gulf Refining Co. v. Ferrell, 65 Miss. 296, 147 So. 476; Murry Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Y. & M. V. R. R. Co. v. Smith, 150 Miss. 882, 117 So. 339; Hardy v. Turner-Farber-Love Co., 101 So. 489.

Though there may be two ways open to a servant in which to perform his work, one of which turns out to be less dangerous than the other, and he adopts the other, yet if that way is not so dangerous that a person of ordinary prudence would not have undertaken it, it cannot be said that the servant was guilty of negligence because he chose the way which was reasonably safe but which was not the safer.

Headrick v. ti. D. Williams Cooperage Co., 134 S.W. 957, 97 Ark. 553; Southern Coal & Coke Co. v. Swinney, 42 So. 808, 149 Ala. 405; Thompson v. Chicago M. & St. P. Ry., 132 N.W. 158, 27 S.D. 567; Lagenfeld v. Union Pac. R. Co., 123 N.W. 1086, 85 Neb. 527; Brady v. Florence & C. C. R. Co., 98 P. 321, 44 Colo. 283; Arnold v. Douglas & Co., 155 N!. W. 845, 175 Iowa 405; ReynoldsWest Lbr. Co. v. Taylor, 23 F.2d 36; Pittman v. LaFontaine, 68 F.2d 469; Nhtional Box Co. v. Wroten, 66 F.2d 86; G. & V. R. R. Co. v. Groome, 52 So. 703. 97 Miss. 201; Edwards v. Hanyes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Murray v. Natchez Drug Co., 56 So. 330, 100 Miss. 260; Standard Oil Co. v. Franks, 149 So. 798, 16.7 Miss. 282; Texas Co. v. Jackson, 165 So. 546, 174 Miss. 737; Gow Co. v. Hunter, 168 So. 264, 175 Miss. 896; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Sea Food Co. v. Alves, 77 So. 857; Hamilton Bros. v. Nareisse, 158 So. 467; Beadle v. Spencer, 298 17. S. 124; Hardy v. Turner-Farber-Love Co., 101 So. 489; Gillespie v. Thornton, 117 So. 714.

On the point involving the request for a peremptory instruction, or a motion to direct verdict, the court must concede to be true, all of the evidenee supporting the view of the parties against whom motion is made giving him benefit of all legitimate inferences. While authority on this point can be multiplied almost without end, so universal is this rule, we cite only a few of the better selected cases:

N. O. & N.E. R. R. Co. v. Penton, 100 So. 521, 135 Miss. 571; N. O. & N.E. R. R. Co. v. Jackson, 105 So. 770, 140 Miss. 375; N. O. & N.E. R. R. Co. v. Martin, 105 So. 864, 140 Miss. 410; Yates v. Houston and Murray, 106 So. 110, 141 Miss. 881; Lowe v. M. & O. R. R. Co., 116 So. 601, 149 Miss. 881; M. & O. R. R. Co. v. Clay, 125 So. 819, 108 Miss. 46,3; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Keith v. W. & M. V. R. R. Co., 151 So. 916, 168 Miss. 519; Gravett v. Golden Saw Mill Trust, 154 So. 274, 170 Miss. 15; Masonite Corp. v. Denis, 168 So. 613, 175 Miss. 855.

The court properly submitted all issues to the jury, properly raised under the pleadings and the testimony, and the court was not required to give any instruction not in response to the issue nor to multiply the instruetion already given and if the instructions as a whole correctly stated the law there is no error.

McIntyre v. Cline, 30 Miss. 361, 64 Am. Dec. 165; Whitfield v. Westbrook, 40 Miss. 311; Burns v. Kelly, 41 Miss. 339; Heirn v. McCaughn, 32 Miss. 17, 6.6 Am. Dee. 588; Herndon v. Bryant, 39 Miss. 335; Hunt v. Crane, 33 Miss. 669, 69 Am. Dee. 381; Davis v. Heek, 79 So. 59, 118 Miss. 74; Natchez & S. R. R. Co. v. Guice, 101 So. 439, 136 Miss. 307; Williams v. City of Gulfport, 141 So. 288, 163 Miss. 334.

Where instructions taken as a whole present the jury a proper guide they were sufficient, notwithstanding some instructions if taken alone might be inaccurate and erroneous.

Pearl River Valley Railroad Co. v. Moody, 171 So. 769; Yorkshire Ins. Co. v. Brew, 166 So. 361, 175 Miss. 538; Cox v. Dempsey, 171 So. 188; N. O. & N.E. R. R. Co. v. Hegwood, 124 So. 66, 155 Miss. 104; Stevens v. Locke, 125 So. 529, 156, Miss. 182; Y. & M. V. R. R. Co. v. Mullen, 131 So. 101, 158 Miss. 774; Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792, 168 Miss. 152; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65.

Argued orally by J. Knox Huff, for appellant, and by Robert W. Thompson, Jr., for appellee.

OPINION

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