Tibbs v. Deemer Mfg. Co.

• Decision Date: 03 October 1910
• Docket Number: 2,050.
• Citation: 182 F. 48
• Parties: TIBBS v. DEEMER MFG. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

182 F. 48

TIBBS v. DEEMER MFG. CO.

No. 2,050.

United States Court of Appeals, Fifth Circuit.

October 3, 1910

S. A Witherspoon, for plaintiff in error.

C. C Dunn, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

The plaintiff in error, J. A. Tibbs, brought this suit against the defendant in error, the Deemer Manufacturing Company, to recover damages for personal injury caused to have been received by him through the negligence of the defendant. The suit was instituted in the state court in Neshoba county Miss., and was removed by the defendant to the Circuit Court of the United States for the Southern District of Mississippi on the ground of the diverse citizenship of the parties. The declaration states, in substance, that the defendant owns a large sawmill in Neshoba county, and from its mill has constructed and operates a railroad out into the pine forests from which it secures the logs to be manufactured into lumber. Upon this railroad is operated two skidding machines to which are attached very long wire ropes, and to the end of each of these ropes is fastened a pair of tongs made of iron bars, and the teeth or points of these tongs are fastened into the end of the logs, which are then drawn to the side of the railroad by the power of the skidding machine. The plaintiff was the foreman of the crew which operated the skidding machine and brought the logs from the woods to the railroad; and his complaint is that the defendant failed to use ordinary care in providing the crew with suitable and safe tongs, alleging that the tongs provided were entirely too small, weak, and insufficient for the purpose of their use, and were, therefore, unsafe and dangerous. The plaintiff notified the superintendent of the defendant, one Tedford, that the tongs or hooks were unsafe, and was promised by the superintendent that, if he would continue in the service of the defendant, it would supply him with larger and stronger hooks or tongs, which would be safe and suitable for the work; that this promise had not been fulfilled when, on the 30th day of June, 1908, one of the hooks, which had been fastened to the end of a log which the skidding machine was drawing to the railroad, gave way, and, slipping off the end of the log, was thrown with great force and violence along the line towards the skidding machine, and in its passage struck a tree, and, rebounding from the tree, glanced to the position of the plaintiff, knocking him down and breaking both of his legs, disabling him permanently. It states that the plaintiff had taken his position about 41 feet from the line along which the log was being dragged, which was a position of reasonable safety, had the tongs been suitable and safe. The negligence of the defendant, as averred, consisted in not providing suitable and safe hooks or tongs.

The defendant pleaded the general issue, and, according to the practice in Mississippi, gave notice of special matters of defense. These notices state, in substance: (1) That the plaintiff had knowledge of the insufficiency of the tongs or hooks, and therefore assumed the risk.

commonly used at that time. (3) That the plaintiff selected an unsuitable and unsafe route over which to drag the log. (4) That the log in its course to the railroad struck a root or stump, which obstruction subjected the tongs or hooks to an unusual and extraordinary strain, and that it was caused to come loose by this strain, and not by any defect or weakness. (5) That the log in its course...