Vehicle Woodstock Co. v. Bowles

• Decision Date: 14 May 1930
• Docket Number: 28647
• Court: Mississippi Supreme Court
• Parties: VEHICLE WOODSTOCK CO. v. BOWLES

128 So. 98

158 Miss. 346

VEHICLE WOODSTOCK CO. v. BOWLES

No. 28647

Supreme Court of Mississippi

May 14, 1930

Division A

APPEAL from circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by M. R. Bowles against the Vehicle Woodstock Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed.

Brady Dean & Hobbs, of Brookhaven, for appellant.

The rule is that an employer is not under obligation to furnish the latest, best, or most approved type of equipment but only that which is reasonable for the service.

Howd v M. C. R. R. Co., 50 Miss. 178; Hatter v. I. C. R. R. Co., 69 Miss. 642, 13 So. 827; Kent v. Y. & M. V. R. R. Co., 77 Miss. 494, 27 So. 620; A. & V. Ry. Co. v. White, 106 Miss. 141, 63 So. 345.

The absence of a screen is not per se negligent.

Independent of statutory requirement, it is not negligence per se for a master to leave his machinery uncovered or otherwise unguarded, but the question depends on the circumstances of each case, the nature of the service, the degree of exposure, and notice thereof to the servant.

39 C. J. 401-3.

Kennedy & Geisenberger, of Natchez, for appellant.

It is the duty of the master to furnish his servant reasonably safe ways, means and appliances for work, but it is not his duty to furnish him with the most modern equipment nor does the law contemplate that he shall, or is able, to insure absolute safety either as to appliances or place of work to any employee engaged in the operation of inherently dangerous machinery.

The evidence in this case shows conclusively that the use of a screen for saws in mills of this kind is optional with the sawyer and that no request of appellant was made by appellee for its installation.

A master is not required to furnish the newest, safest and best machinery, appliances and places for work, but this obligation is met when he furnishes such as are reasonably safe and suitable for the purpose here in view.

39 C. J., Master and Servants, section 449; Zachmen v. Lane Bottling Works, 163 Ia. 652, 145 N.W. 274; Washington Asphalt Block Co. v. Mackey, 15 App. (D. C.) 410, 426.

No jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way for which liability can be imposed.

Wm. D. O'Conner v. Richard Webber, et al. (N. Y.), 36 A. L. R. 1473.

Engle & Laub, of Natchez, for appellee.

Appellee testified to a state of facts as disclosed by the record which indicated that in mills of the type in question standard equipment calls for a screen between the circular saw which revolves through the log and tears therefrom bark and particles and the sawyer who is in line of flight of those particles. His testimony was borne out by W. E. Beardon a laboring man in the employ of the appellant, but who had the courage to state the facts, although his daily bread depended upon his employment by appellant.

The testimony had shown that there was negligence by the defendant and the testimony had shown that the plaintiff had not failed in his own duty of watchfulness or otherwise in operating the saw and the testimony showed an unsafe place of work which could have been prevented by the placing of a screen in front of appellee as was usually done in mills of this kind.

The case of Howd. v. Miss. Central R. R. Co., 50 Miss. 178; Hatter v. I. C. R. R., 69 Miss. 642, 13 So. 827, and the line of cases cited by appellant on page six of his brief is a line of cases which went by the board in this state when the assumption of risk rule was overthrown by our legislature. The servant does not assume risk in Mississippi in cases of the type and kind here in question. Laws 1914, chapter 156, Hemingway's Code 1927, section 528, Hemingway's Code 1917, section 504. When counsel for appellant cited 39 C. J. 401-3 as to the assumption of risk they completely left the jurisprudence of the state of Mississippi and ignored the statute in such case made and provided.

Eagle & Laub, of Natchez, and G. Garland Lyell, of Jackson, for appellee.

A careful examination has been made by counsel for appellee of the entire record in the Kirkland case, 149 Miss. 116, 115 So. 191, and we assert with perfect assurance that the conflicting evidence in that case which division B held was sufficient to take the case to the jury, was far and away weaker for the plaintiff therein, Kirkland, than was the evidence in the instant case.

Respectfully, we suggest that the appellant did not supply such a screen as was reasonably necessary to safeguard the plaintiff.

We submit that under the law and the facts in this case that the negligent appellant cannot escape.

The testimony in the case at bar shows conclusively that a circular saw, as this one was, will be continually throwing particles in the direction of the sawyer; it shows conclusively that his position is a dangerous position, and the only uncertainty is as to the size of particles that will likely strike him.

The testimony also shows that the installation of a screen between the sawyer and the saw so as to catch these flying shrapnel particles is a matter of common knowledge and that everybody knows of the use of this protective device.

The question as to whether the master had exercised ordinary care in furnishing appliances and place for work such as are reasonably safe and suitable for the work is essentially a question of fact to be passed on by the jury.

The supreme court will not set aside the verdict of a jury, finding the facts of a case merely because it is of the opinion that the verdict was contrary to what the court deemed the weight of the evidence.

St. L.-S. F. R. R. Co. v. Bowles, 107 Miss. 97, 64 So. 968; Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453.

A verdict on conflicting evidence will not be disturbed. It is never more than necessary that there be some substantial evidence to support the verdict.

Argued orally by A. H. Geisenberger and T. Brady, for appellant, and by S. B. Laub, for appellee.

OPINION

McGowen, J.

The appellee, M. R. Bowles, sued the appellant, the Vehicle Woodstock Company, for the loss of his left eye while he was temporarily serving as a sawyer for the appellant, charging that the appellant was negligent in failing to have a wire screen between the saw and the sawyer, which negligence resulted in a fragment of bark being thrown from the saw, striking the sawyer in his left eye and causing the subsequent loss thereof.

The verdict of the jury was for seven thousand five hundred dollars, from which the appellant, the Vehicle Woodstock Company, prosecutes an appeal here.

The appellant was operating a small sawmill, with a capacity of ten thousand feet of lumber per day. There was used therein a circular saw operated by a lever controlled by the sawyer and the log was carried to the saw and slabs sawn therefrom by bringing the log on the carriage in contact with the saw. It was necessary for another employee to ride the carriage while it was being...