Wilbe Lumber Co. v. Calhoun

• Citation: 140 So. 680,163 Miss. 80
• Decision Date: 28 March 1932
• Docket Number: 29878
• Court: United States State Supreme Court of Mississippi
• Parties: WILBE LUMBER CO. v. CALHOUN

140 So. 680

163 Miss. 80

WILBE LUMBER CO. v. CALHOUN

No. 29878

Supreme Court of Mississippi

March 28, 1932

Division B

1. MASTER AND SERVANT.

Where planing mill employee was injured when ripsaw kicked timber back against him, whether saw unguarded was dangerous instrumentality held for jury.

2. MASTER AND SERVANT.

Servant does not assume risk of master's negligence in not furnishing reasonably safe place to work or reasonably safe instrumentality.

3. MASTER AND SERVANT.

Risk servant assumes is danger incident to service remaining after master has exercised reasonable care for servant's safety.

4. MASTER AND SERVANT.

Master furnishing unsafe instrumentality to work with could not escape liability because fellow servant may have contributed to plaintiff's injury.

5. MASTER AND SERVANT.

It is master's nondelegable duty to furnish servant with safe place to work and suitable appliances and instrumentalities with which to work.

6 JURY.

Burden held upon defendant to show juror and plaintiff's attorney were related by affinity at time of trial.

7 JURY.

If marriage, because of which juror and attorney are related by affinity, is dissolved, relationship in contemplation of law ceases to exist, unless issue of marriage survives.

8. TRIAL. In employee's action for injuries, instruction regarding choice of ways of operating saw held not conflicting with instruction given for employer.

The instruction complained of was, in substance, that, even though another way mentioned was the best and safest way to operate machine, if it was habit and custom known to employer for operator of machine to operate it by passing timber through and by saw and leaving same to be then taken by taller, and employer acquiesced in such custom, then it did not constitute negligence on employee's part to operate it in such usual and customary manner. The instruction given for employer was, in substance, that, if negligence of tailerman in any manner was sole cause of accident, and injuries, if any, then jury must find for employer, because employer was not liable for his negligence, if any.

9. MASTER AND SERVANT.

Instruction regarding choice of ways of operating machine held not erroneous, as authorizing employee's recovery notwithstanding his sole negligence caused injury.

10 TRIAL. Instruction held not erroneous as narrowing question to whether there were on market ripsaws protected by guards that would prevent danger to employees, and employer neglected to purchase one.

The instruction complained of was, in substance, that, if jury believed that ripsaw of kind used was dangerous, and that same was known to employer or should have been known before injury because saw was unprotected by guard, and that there was at that time on the market at reasonable cost a guard in common use as standard equipment that would prevent or reduce danger, and lack of such guard was proximate cause of injury, then jury should find for employee.

HON. EDGAR M. LANE, Judge.

APPEAL from circuit court of Simpson county, HON. EDGAR M. LANE, Judge.

Action by F. E. Calhoun against the Wilbe Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Hilton and Hilton and May, Sanders, McLaurin & Byrd, all of Jackson, for appellant.

A juror is not incompetent in a criminal action because related to the prosecuting attorney, or to defendant's counsel, or, in a civil action, because related to the attorney of one of the parties, except where such attorney is directly interested in the event of the action.

35 Corpus Juris, page 231.

Where an attorney is compensated by way of a contingent fee to be taken out of the amount recovered, a relative of such attorney is incompetent as a juror.

Crockett v. McLendon, 73 Ga. 85; Melson v. Dickson, 63 Ga. 682, 36 Am. R. 128; Davis v. Southern R. Co., 18 Ga. A. 134, 88 S.E. 919.

Where an attorney is compensated by way of a contingent fee to be taken out of the amount recovered, a relative of such attorney is incompetent as a juror.

Melson v. Dickson, 63 Ga. 682; 36 Am. R. 128; 24 Cyc. pages 275 and 276; 16 R. C. L., page 259, par. 77.

The Mississippi cases declaratory of the common law with reference to the incompetency of a juror on account of relationship to the parties are:

Hubbard v. Rutledge, 57 Miss. 7; Railroad Co. v. Mask, 64 Miss. 738, 2 So. 360; Burbette v. State, 109 Miss. 94, 67 So. 853; Jackson v. Board of Mayor and Aldermen of the Town of Port Gibson, 111 So. 828.

Appellant was deprived of the benefit of the statute giving to it four peremptory challenges because it was required to exercise a peremptory challenge on a juror who should have been excused for cause.

Searle v. Roman Catholic Bishop of Springfield, 203 Mass. 493; 17 Am. & Eng. Cases, 348.

The peremptory instruction should have been granted defendant, because plaintiff chose an unsafe and dangerous means of operating the ripsaw, when there was a safe method that he could have used.

Ovett Land & Lumber Co. v. Adams, 109 Miss. 740; Buckeye Cotton Oil Co. v. Saffold, 125, Miss. 407; Rose v. Pace, 144 Miss. 375.

The giving of the following instruction was error:

"The court instructs the jury for the plaintiff that even though you should believe from the preponderance of the evidence in the case that the best and safest way to operate the machine in question was for the feeder of the machine to hold on to the timber being put through the machine until the tailer took hold of such timber, nevertheless, if it has been shown by a preponderance of the evidence that in the operation of the mill of the defendant it was the habit and custom known to the defendant or its foreman for the operator of said machine to operate the same by passing such timber through and by the saw and leaving the same to be then taken by the taller and the defendant acquiesced in such custom and permitted this operator so to do, then in that event it did not constitute negligence on the part of the plaintiff to operate such machine in such usual and customary manner."

This instruction is fatally erroneous:

1st--Because it incorrectly states the law as to the choice of ways:

2nd--It is in direct conflict with Instruction No. 5 given for the defendant.

3rd--Because it tells the jury, in effect, that if the plaintiff negligently proceeded to do his work and the defendant knew that the plaintiff had thus been negligent, that such knowledge of the defendant rendered such procedure on the part of the plaintiff non-negligence, and in such circumstances authorized a recovery by the plaintiff, notwithstanding the fact that his sole negligence might, and probably did, cause his injury.

An instruction is erroneous which narrows the question to be decided by the jury to the inquiry as to whether there were on the market ripsaws protected by a guard that would prevent, or reduce the danger, and if appellant failed or neglected to purchase such ripsaw, then the jury was required to find for the appellee.

The master must use ordinary care such as men of ordinary prudence employ, in furnishing his servant or employee with tools and appliances suitable for the performance of the service required of him, but he is not bound to furnish his employee with the safest tools and appliances obtainable.

Morgan Hill Paving Co. v. Morris, 160 Miss. 79.

The master need not furnish the newest, best, and safest machinery, appliances, and places for work, but need only furnish such as are reasonably safe.

Vehicle Woodstock Co. v. Bowles, 128 So. 98.

Wells, Jones, Wells & Lipscomb, of Jackson, and H. M. McIntosh, of Collins, for appellee.

A party to a suit has no vested right to any particular juror. All that any party has is a legal right to have a fair and impartial jury.

Barnett v. Dalton, 69 Miss. 611; Ferriday v. Selser, 4 Howard 519; Gilliam Exr. v. Brown, 43 Miss. 641, 651.

The fact that an attorney in the case had a mere contingent fee does not disqualify a judge related to such attorney.

Norwich Union Fire Ins. Co. v. Standard Drug Co., 83 So. 676.

In order to disqualify a juror by reason of his relationship by affinity with an interested party, it must affirmatively appear that the connecting relatives on account of the marriage with whom the relationship by affinity arose are still living and the marriage otherwise undissolved; or that there is living issue of such marriage, the burden being upon the party challenging the juror to make such disqualification affirmatively appear.

Crosby v. State, 106 So. 741; Miller v. State, 25 So. 366; State v. Shaw, 25 N.C. 532.

Appellant did not fulfill the duty imposed upon it in that it failed to supply a guard for the saw which would protect the life and limb of the operator, such guards being in common use, inexpensive and do not interfere with the use of the saw.

Brooks v. De Soto Oil Company, 57 So. 228, 100 Miss. 849; Cecil Lumber Company v. McLeod, 122 Miss. 767; Continental Gin Company v. Milbrat, 65 So. 424; Merritt v. Victoria Lumber Co., 35 So. 497.

A servant never assumes a risk that grows out of the master's negligence however plain or obvious and, the risk he does assume is the peril incident to the service remaining after the master has exercised ordinary care. And it is for the jury to decide as to whether the master has exercised ordinary care.

Kuhn v. Lusk, 219 & W. 638; Williams v. Pryor, 272 Mo. 613; Brooks v. De Soto Oil Co., 57 So. 228, 100 Miss. 849; Dettering v. Levy, 79 A. 476; Westman v. Lumber Company, 91. P. 478; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 So. 498.

Where the testimony is conflicting as to whether the employer had furnished the servant a safe place to work, the question should be submitted to...