Tatum v. Crabtree

• Decision Date: 02 January 1923
• Docket Number: 22775
• Court: Mississippi Supreme Court
• Parties: TATUM v. CRABTREE

94 So. 449

130 Miss. 462

TATUM v. CRABTREE

No. 22775

Supreme Court of Mississippi

January 2, 1923

1. MASTER AND SERVANT. Proximate cause of injury to servant in unsafe place must be shown.

Although a piece of machinery is defective and thereby renders a servant's place of work unsafe, nevertheless the master is not liable for an injury received by the servant while the latter is engaged in his duties in such an unsafe place where it is shown that such defective piece of machinery had no causal connection whatever with the injuries received, but that the same is attributable exclusively to another cause.

2. MASTER AND SERVANT. Rules only required where work is complex. The master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the work about which such servants are engaged is dangerous to life or limb, such rules being only required where, in addition to the place being dangerous, the work of the servants is complex, and the conditions which may arise are uncertain and obscure. Where there are no complexities and where the danger is manifest no rules are required.

3. MASTER AND SERVANT. Rules for unloading timbers held not required.

Where the plaintiff and a fellow servant were engaged in unloading heavy timber as manufactured in a sawmill from a roller bed down onto lumber ramps, and, at a time when plaintiff was engaged about his duties down on the lumber ramps only for a short time, when he and his fellow servants were in full view of each other and each knew what the other was engaged in, the fellow servant with his cant hook negligently threw a heavy piece of timber down onto the lumber ramps while plaintiff was so engaged, without waiting until plaintiff had completed his work, or warning plaintiff of his purpose, and plaintiff was thereby injured by such piece of timber striking him, the master is not liable for such injury because he failed to promulgate rules governing the plaintiff and his fellow servants in the performance of such labor, because such work was not complex or obscure.

4. MASTER AND SERVANT. Opinion evidence as to employer's duty to promulgate rules held not to raise issue for jury.

The fact that there was evidence in such case to the effect that the master should have promulgated rules for the government of plaintiff and his fellow servant in the performance of their labor did not raise an issue for the jury, because such evidence is mere opinion evidence, and is entitled to no weight whatever where the other evidence showed without conflict that the duties performed by plaintiff and his fellow servant were not attended with any uncertainty or obscurity, and that it was manifest that both plaintiff and his fellow servant knew exactly how to avoid the injury to plaintiff, and that therefore any rule which might be promulgated could only inform them of what they already knew.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Amos Crabtree against W. S. F. Tatum. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed.

Stevens & Heidelberg, for appellant.

An examination of page 573 of 18th Ruling Case Law will show that it is only where the employer's work is complex and dangerous that he is ever required to adopt any rules, and an examination of the authorities upon which the doctrine that it is necessary to adopt any rules under any circumstances, is founded will disclose that in almost every instance the employers were engaged in the complex and highly dangerous business of operating a railroad. Boyer v. Eastern Railway Company, 12 Amer. Negligence Reports, 496. Another case very similar to the case at bar is that of Olsen v. North Pacific Lumber Company, decided by the circuit court of appeals of the ninth circuit and reported in 100 Fed., page 387. Eley v. N.Y. C. & H. Railroad Co., 88 Hun., 323; Morgan v. Hudson River Ore. & I. Company, 133 N.Y. 666.

Whether or not the evidence is sufficient to show a case in which the duty to make rules rested on the employer, is a question of law for the court. Texas & New Orleans Railroad Company v. Echols, 87 Tex. 339; Larsen v. O'Rourke Engineering Construction Co., 102 C. C. A. 51; 178 F. 541; The Punkowski v. Newcastle Leather Co., 4 Penn. (Del.) 544, 57 A. 559; Jemnienski v. Lobdell Car Wheel Company, 5 Penn. (Del.) 385, 63 A. 935, holding no rules required for controlling the running of small cars on railroad in manufacturing plants. American Bridge Company v. Valente, 7 Penn. (Del.) 370, 73 A. 400, holding no rules required to protect labor painting iron columns on car from injuries by other columns being loaded by fellow servants. Knickerbocker Ice Company v. Smith, 45 Ind.App. 445; 91 N.E. 28, holding, no rules necessary in filling and dumping steam shovel. McCafferty v. Maine C. R. Co., 166 Me. 284, 76 A. 865, holding no rule necessary where steam fitter was at work on track of traveling crane and was injured by crane being moved against him. Parmaleau v. International Paper Company, 75 N.H. 69, 71 A. 31, holding no rule required for moving cars by hand. Wagner v. New York Central & St. Louis Railroad Company, 76 A.D. 552, 78 N.Y.S. 696, holding no rules required for anchoring derrick cars. Palmieri v. S. Pearson & Son, 128 A.D. 231, 112 N.Y.S. 684, holding that no rules were required for moving steam crane. Forey v. Syracuse B. & N.Y. R. R. Co., 12 N.Y.S. 198, holding no rules required for unloading gravel from cars. Galvin v. Brown & McCabe, 53 Ore. 598, 101 P. 671, holding no rules necessary in unloading slings for putting lumber into vessels. Moore Lime Co. v. Richardson, 95 Va. 336, 27 S.E. 334, holding no rule necessary for unloading and moving cars by hand. Jackson v. Wheeling Terminal Railroad Company, 65 W.Va. 415, 64 S.E. 450, holding that company operating small terminal road not bound to promulgate rules governing the running of trains. 3 Labatt's Master and Servant (2 Ed.), sec. 1115, page 2953.

So in the case at bar it was not necessary for the master to adopt or promulgate a rule for the purpose of regulating an act which in itself was negligent. It certainly must be apparent to the court that the use of the movable skids testified about did not proximately contribute to the plaintiff's injury and yet the court refused the following instruction asked by the defendant.

The court instructs the jury that the movable skids testified about, regardless of their condition or safety, were not the proximate cause of the plaintiff's injury, and the jury is not authorized to find a verdict for the plaintiff because of the use of said skids. It certainly is true that if the thing which caused the plaintiff's injury in this case was the negligent act of Boles, his fellow servant, in turning the stick of timber off on him at a time when he was fixing the movable skid, the jury should have found a verdict for the defendant, and yet the court refused the defendant the following instructions: "The court instructs the jury for the defendant that if you believe from the evidence that the plaintiff Crabtree and witness Boles were working together and that they or either of them went down on the ramps for the purpose of fixing the movable skids and that before the plaintiff had completed his work his fellow workman Boles took his peavy and turned the stick of timber off on him, then it is your sworn duty to find for the defendant."

Even if there had been any conflict in the testimony as to how the stick of timber happened to leave the roller bed and fall on the plaintiff and cause his injury, it is certainly true that if the stick of timber was turned off by Boles, the defendant was in no way liable and yet the court refused the defendant the following instruction:

"The court instructs the jury for the defendant that if you believe from the evidence in this case that the witness Boles turned the stick of timber off of the roller bed and that it fell on the plaintiff and caused his injuries, then you must find for the defendant regardless of every other fact or circumstance in this case:"

As we have heretofore tried to show the court in this brief, the condition of the roller bed could not possibly have contributed to the plaintiff's injury because it affirmatively and without contradiction appears from the testimony that the stick of timber did not fall off of the roller bed but was deliberately turned off by means of a peavy in the hands of a fellow servant, and yet the court refused the following instruction asked by the defendant: "The court instructs the jury for the defendant that the condition of the roller bed was not the proximate cause of the plaintiff's injuries. The jury is not authorized to find a verdict for the plaintiff in this cause because of any improper condition of the roller bed."

Another instruction which was refused by the court, the refusal of which, in view of the facts of this case, we submit was error, read as follows: "The court instructs the jury for the defendant that if they believe from the evidence that the stick of timber which hurt plaintiff had left the live rolls and had been placed into position on the dead rolls and that then Crabtree undertook to put a skid in place down on the ramp below and while so engaged Boles turned the stick of timber off the rolls and onto the ramps, resulting in Crabtree being caught and hurt, then the defendant is not liable to Crabtree for his injuries and in such case the jury must under their oaths find for the defendant."

However we repeat, that in our humble judgment there was no failure of duty on the part of the defendant in this case, and the case should not have been submitted to the jury at all, but...