Walters v. Thompson
| Decision Date | 05 May 1930 |
| Docket Number | 28661 |
| Citation | 157 Miss. 351,128 So. 81 |
| Court | Mississippi Supreme Court |
| Parties | WALTERS et al. v. THOMPSON |
1. MASTER AND SERVANT. Proof that mule team furnished by employer did not promptly stop when employee called "whoa" held not to establish mules were unsafe.
In a suit for damages based upon the negligence of the master or employer to provide a safe team to the defendant, mere proof that the team did not promptly stop when the servant called "whoa" does not necessarily render the team unsafe. Mules are customarily driven and managed by lines or reins attached to bridles, and it does not appear that they were not so equipped at the time of the injury, and mere proof that they failed to stop promptly and at the particular time when the driver called "whoa" is insufficient evidence to show that they were unsafe.
2. MASTER AND SERVANT. Evidence that limb injuring driver of team hauling log was not seen by other employees or driver held insufficient to establish employer's negligence.
In a suit for damages against the master for negligence in trimming logs which the plaintiff was hauling for the master where the proof showed that the limb which was not trimmed was on the under side of the log, and was not seen either by the servants cutting and trimming the logs or by the plaintiff in hauling the logs, and was not seen or known until the log turned while being moved, such proof is insufficient to establish negligence against the master.
APPEAL from circuit court of Jones county, First district HON. W. J PACK, Judge.
Action by W. A. Thompson against Bentley, Emery, and A. F. Walters. Judgment for plaintiff, and defendants appeal. Reversed and rendered.
Reversed.
C. C. Smith, of Richton, and W. S. Welch and Ellis B. Cooper, both of Laurel, for appellants.
The failure of mules to stop immediately on the command of "whoa," when they were properly equipped with lines and bridles, does not make them so unsafe as to constitute negligence on the part of the master who furnished the mules.
Farmer v. Cumberland Tel. Co., 86 Miss. 55, 38 So. 775; Central Lumber Co. v. Porter, 139 Miss. 66, 103 So. 506; Fererira v. Sivley, 38 Cal.App. 346, 176 P. 371; Brennen v. Meadow, 252 Pa. 178, 97 A. 183; O'Connell v. Mooney, 32 Misc. 641, 66 N.Y.S. 486; Coal Co. v. McNuety, 120 Pa. 414, 14 A. 387; Hoot v. Walker County Lbr. Co., 219 S.W. 544.
Appellee's injury was the result purely of an accident for which no one is responsible.
Hattiesburg Bottling Co. v. Price, 106 So. 77, 141 Miss. 892.
Deavours & Hilbun, of Laurel, for appellants.
The rule requiring the master to use ordinary care to provide a reasonably safe place for his servant to work is not applicable to a case in which the very work which the servant is employed to do is of such a nature that its progress is constantly changing the conditions as regards an increase or dimunition of safety. The hazards arising thus are regarded as being the ordinary dangers and risks of the employment which are assumed by the servant when he accepts the employment.
3 Labatt on Master and Servant, section 1176, page 3140; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Kentucky Coal Company v. Nance, 165 F. 44, 91 C. C. A. 82; Jacques v. Miami Ice Co., 73 Fla. 1193, 75 So. 788; Lumber Company v. Miles, 135 Miss. 146, 99 So. 759; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Gulf, M. & N. R. R. Co. v. Brown, 108 So. 503; Cubur Lumber Co. v. Erkhart, 118 Miss. 401, 79 So. 235.
Collins & Collins, of Laurel, for appellee.
A mule may be reasonably safe to work to a wagon or reasonably safe to work to a plow, but the evidence in this case shows that the mule was not reasonably safe to bunch logs with and the reason for this is well set out.
Sloss-Sheffield Steel & Iron Company v. Long, 53 So. 910.
It was for the jury to say whether or not it was negligence to leave the log in the condition in which the facts show that it was left. The jury resolved these facts in favor of the appellee. The finding of the jury should not be disturbed by this court.
Argued orally by Ellis B. Cooper, and Henry Hilbun, for appellants.
Thompson was plaintiff in the court below, and filed a suit against the appellants for damages for the loss of an eye and suffering and expenses incident to such injury. He alleged that Bentley and Emery were residents of Perry county, and that he was employed by them on the 23d day of July and prior thereto in the logging business at Ovett in the First district of Jones county; that they employed a large number of men, and that the plaintiff was employed to help banks logs upon the railroad track belonging to the defendants and used in its logging business; that, while so engaged in his business, the defendants owed him certain duties, among which was to furnish him a reasonably safe place in which to work and reasonably safe tools and appliances with which to work, which duty the defendants violated. He then alleged that on the 23rd day of July, 1928, while he was working for the said defendants, he was engaged in the business of driving a mule team for the defendants to bank or tong logs to be loaded on cars and manufactured into lumber, and that the defendants negligently and carelessly furnished him with a team of mules that were known by them to be wild and unruly and dangerous when engaged in such occupation, and that he was instructed by the defendants to take such team, and, because of the negligence of the defendants in knowingly, or by the exercise of reasonable care could have known, furnishing him an unsafe team, he was injured and damaged.
It was further alleged that it was the duty of the defendants to cut logs and timber in the words and to trim the limbs off of said timber and logs and clear them from all such limbs before they were hauled by the said plaintiff or dragged to the railroad; that defendants negligently and carelessly failed to perform this duty, and that they negligently and carelessly left the log, which plaintiff was ordered to remove to the railroad, which had limbs upon it; that the plaintiff hitched the said mules to the said log in the ordinary and usual way, and undertook to move said logs, and the mules moved the said logs, and, as the mules started plaintiff discovered that there were limbs on said logs that had not been cut off,...
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