Truly v. North Lumber Co.

• Decision Date: 22 February 1904
• Citation: 36 So. 4,83 Miss. 430
• Court: Mississippi Supreme Court
• Parties: MARY E. TRULY ET AL. v. NORTH LUMBER COMPANY

36 So. 4

83 Miss. 430

MARY E. TRULY ET AL. v. NORTH LUMBER COMPANY

Supreme Court of Mississippi

February 22, 1904

FROM the circuit court of Harrison county. HON. JAMES H. NEVILLE Judge.

Mrs Truly and others, appellants, were plaintiffs, and the North Lumber Company, appellee, was defendant, in the court below.

Appellants brought the suit to recover damages for the death of James B Truly, caused by alleged negligence of the defendant. In the first four counts of the declaration, which are substantially the same, it is alleged: "That James B. Truly was employed by defendant to help load lumber on a car at said defendant's dry kiln, and push the car, as loaded with lumber, along a tramway, about 100 feet, into appellee's dry shed, under the control or direction of a superior agent of said defendant, or a person having the right to control or direct the said services of James B. Truly, and that said James B. Truly, while so employed by said defendant as above set forth, and other laborers under the control and direction of a superior agent of said defendant, having the right to control the services of said James B. Truly, loaded lumber in a proper manner on the car at the said dry kiln, and was pushing the car loaded with the lumber, when the lumber so loaded on the car shifted, moved, and lay irregularly, and extended further on each side of said car, which shifting and movement of the lumber was caused by the defective condition of said car, in this: that the wheels of said car wobbled and revolved unevenly, thereby causing the lumber on the car to shift or move, and lay irregularly on said car, as above set forth. That although the said foreman saw the condition and position of the lumber on the said car after the lumber shifted or moved as above set forth, he, the said foreman ordered and directed the said James B. Truly and other laborers, to continue to push said car along said tramway into said dry shed, and, Truly trying to carry out and execute said orders and directions of said foreman, the lumber on the car struck against a post at or near the entrance of the said dry shed, whereby the said lumber car and Truly were pushed and knocked off the tramway, the lumber and the car falling against and on Truly, bruising him, and he sustained injuries, by reason whereof he died. It is further alleged in said counts that Truly, in pushing said car of lumber, had to walk behind said car of lumber, which was between him and said post, and therefore he did not see and could not have seen that the car of lumber could not safely pass said post, and that Truly did not know, and did not have any reason to believe, that said car of lumber could not safely pass said post, and that said death was without fault of said Truly, and caused by the negligence of defendant." The fifth count alleges: "That James B Truly was employed as a laborer by said defendant to help load lumber on a car at said defendant's dry kiln, and push the car, when so loaded, along a tramway about one hundred feet, into the defendant's dry shed, and unload the lumber from said car in said dry shed. That, James B. Truly, being so employed by said defendant, in pushing the car so loaded with lumber on said tramway from the dry kiln to the dry shed, the lumber on said car struck against a post at or near the entrance of the dry shed, whereby the said lumber and James B. Truly were pushed and knocked off the tramway, the lumber and car falling against and on the said James B. Truly, crushing and bruising him, and he sustained injuries by reason whereof he, within a few hours, died. That Truly, in pushing said car of lumber, had to walk behind said car of lumber, which was between him and said post, and therefore he did not and could not safely pass said post, and that he did not know, and did not have any reason to believe, that said car of lumber could not safely pass said post. That the death of the said James B. Truly occurred without fault on the part of said Truly." Defendant's demurrer to the declaration was sustained. Plaintiffs declined to amend, and from a final judgment rendered for defendant, plaintiffs appealed to the supreme court.

Affirmed.

D. B. Seal and Bloomfield & Cowan, for appellants.

The declaration does not state that the death of Truly was caused by the action of a fellow servant, or by a defective car, and therefore appellants have the right to proceed under the common law.

And it may be observed in this connection that it is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to know or appreciate the risks resulting, or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with contributory negligence on the assumption of the risks growing out of them. The question is, did he know, or ought to have known, in the exercise of ordinary common sense and prudence, that the risks and not merely the defects existed? 14 Am. & Eng. Enc. Law (1st ed.), 844 (note).

If a master or superior orders an inferior into a situation of danger and he obeys and is injured, the law will not charge him with the assumption of risk unless the danger was so glaring that no prudent man would have entered into it. 14 Am. & Eng. Enc. Law (1st ed.), 857.

The allegation, that the injury was produced in consequence of the negligence of the employees of the defendant implies that there was no negligence on the part of the deceased contributing to it, as a matter of pleading, and it was sufficient. Hickman v. Kansas City R. R. Co., 66 Miss. 154.

McWillie & Thompson, for appellee.

In this case we find nothing that has not been fully and finally disposed of by the decision of this court in Ballard v Oil Co., 81 Miss. 507. Indeed, the action was brought before the decision in the Ballard case was rendered, and, perhaps, would not otherwise have been brought at all. It is idle to claim that the allegations of the declaration showed a case of liability at the common law. The fellow servant doctrine, independently of statutory enactments, is subject to the "superior servant" limitation in but few states, and never has been in Mississippi. The approved rule is that the...