Wilbourn v. Charleston Cooperage Co.

• Decision Date: 05 December 1921
• Docket Number: 22036
• Citation: 127 Miss. 290,90 So. 9
• Court: Mississippi Supreme Court
• Parties: WILBOURN v. CHARLESTON COOPERAGE CO

90 So. 9

127 Miss. 290

WILBOURN v. CHARLESTON COOPERAGE CO

No. 22036

Supreme Court of Mississippi

December 5, 1921

1 NEGLIGENCE. Dealer's employee held customer's invitee entitled to reasonably safe working place.

A person delivering ice to his employer's customer, the owner of a stave mill, in making delivery in the usual manner required by his employer, injured by coming in contact with a saw in such stave mill, was, in his relation to the owner of the stave mill while in the performance of his said duty, not a mere licensee but an invitee; and as such the owner of the mill was due him as such invitee the duty to furnish him a reasonably safe place to perform his duties.

2 NEGLIGENCE. Duty to warn invitee of dangers defined.

The owner of a stave mill containing dangerous machinery, who directly or by implication invites or induces another to go therein, owes such person the duty to have his premises in a reasonably safe condition and to give warning of latent or concealed peril in and about such machinery, and the owner of such mill and machinery is liable for any injury received by the invitee occasioned by the unsafe condition of the machinery therein, provided such unsafe condition is known to the owner and not the invitee; there being no liability of the owner to the invitee where the danger is obvious and known to the latter.

3 NEGLIGENCE. Injuries to invitee by unguarded machinery not actionable unless reasonably to be foreseen.

The owner of a stave mill containing dangerous machinery is not liable for an injury received by an invitee by coming in contract with such machinery because the same was not guarded, unless such owner might have reasonably foreseen that some injury might result to such invitee, or some other person occupying a similar position, by such failure to guard.

HON E D. DINKINS, Judge.

APPEAL from circuit court of Tallahatchie county, HON E. D. DINKINS Judge.

Action by Frank Wilbourn against the Charleston Cooperage Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Affirmed.

Appellant, Wilbourn, sued the appellee, Charleston Cooperage Company, a corporation under the laws of this state, for damages for an injury caused by having the forefinger of his left hand cut off by a circular saw operated in appellee's stave mill. After all of the evidence for both sides was in, the court directed a verdict for the appellee, and judgment was entered accordingly, from which the appellant prosecutes this appeal.

This action of the court is the basis of the only error assigned. Therefore, in considering the question involved, every fact necessary to the establishment of plaintiff's case which the evidence proves directly or by inference should be treated as proven. So treating the evidence, the following state of case was proven on behalf of the plaintiff: The appellee was engaged in the manufacture of staves. There was located in its stave mill a water barrel from which drinking water for a large number of the employees of appellee was furnished. This barrel held about eighty gallons of water, and was so located upon the floor where it sat that it was from six to seven feet from the floor to the top of the barrel. Hanging over the barrel was a water faucet or hydrant which was the source of water supply for filling the barrel for drinking purposes. This faucet was also used for washing off the ice that was daily put into the barrel to cool the water so that it would be fit for drinking purposes. The floor or platform on which the barrel stood and which surrounded it was of oak three inches thick. On the floor around the barrel was kept sawdust to soak up the waste water that was thrown out by the employees after drinking as well as the waste water that ran out over the floor from the faucet when the ice was washed off which went into the barrel. Four feet from this barrel, according to the estimate of the appellant, and six feet, according to actual measurement, there was located a circular saw which was one of the instrumentalities used by the appellee in manufacturing staves. This saw was built into and revolved in a bench or table about two and a half feet above the floor of the building. This table or bench was about thirty inches wide and the saw revolved through the center of it; therefore, the table extended out on each side of the saw about fifteen inches.

The Charleston Coal & Ice Company furnished the ice that went into the barrel referred to for the purpose of cooling the water. The said ice company delivered for this purpose to the appellee every morning one hundred pounds of ice. The appellant was the employee who drove the ice wagon for the said ice company and delivered the ice to appellee. It was his duty, required of him by the appellee as stated in his evidence, to wash off the one hundred-pound block of ice and put it into the barrel. On the morning of the injury he proceeded as usual to wash off the ice by turning the faucet which hung over the barrel to one side and turning the water on the ice from that; and on this particular occasion he had another negro, a boy with him helping. After washing the ice off, he and the boy took hold of it with their ice hooks and attempted to raise it and put it into the barrel, when the hold of the boy broke loose and the ice dropped. Appellant then made an effort to raise the ice with his hooks, when he slipped and fell backwards, and in falling in order to catch involuntarily threw his left hand back, striking the circular saw referred to, which cut off his forefinger. Appellant showed by his own testimony that he knew of the location of the saw, that it was continuously in operation while the mill was running; that he knew the floor was wet notwithstanding the space around the barrel was covered with sawdust for the purpose of soaking up the waste water and to stand on; and that it had been made wet by waste water thrown on it by the employees of the appellee in drinking, and also by himself in washing off the ice before putting it into the barrel; and that he had been delivering ice for his employer to the appellee for some time, and knew the surroundings and the location and situation of the saw. He showed that whatever danger there was on account of the floor being wet as well as on account of the saw was apparent and obvious. The testimony for appellant also tended to show that if the saw in question had been guarded by, a frame, the injury would not have occurred; and that such a guard would not have materially interfered with the operation of the saw.

Affirmed.

James Stone, Oldham, Stone & Stone and Greek L. Rice, for appellant.

It is the contention of the appellant that the trial court erred in directing the jury to find for the appellee, defendant below, because: 1. The appellant was an invitee of the appellee, defendant below. 2. As such invitee the appellant was injured, and that his injury was proximately due to negligence on the part of the appellee, defendant below. 3. There being a conflict in the evidence as to what the proximate cause of the injury sustained by the appellant, this question should have been left to the discretion of the jury and it was not within the province of the trial court to direct the jury to find for the appellee. 4. Even if the trial judge believed the testimony for the appellee, defendant below, still under the law in Mississippi the appellant, plaintiff below, is entitled to recover if his injury was proximately due to negligence on the part of the appellee even though forgetfulness or neglect of the appellant himself contributed to his injury. Allen v. Y. & M. V. Railroad (1916), 111 Miss. 267, 71 So. 386; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 26 L. R. A. 686, 48 Am. St. Rep. 547; I. C. Railroad Company v. Dillon (1916), 111 Miss. 520, 71 So. 809; Lepnick v. Gaddis (1894), 72 Miss. 200, 16 So. 213, 26 L. R. A. 686, 48 Am. State Rep. 547.

Second--It is the contention of the appellant that the injury of the appellant was proximately due to the negligence of the appellee and its employees, and that, for this reason, the trial court erred in directing the jury to find for the appellee, defendant below.

We respectfully submit that it is obvious to any mind in the world that if this saw had not been left unguarded, or if this water container had been located fifty (50) feet from any saw, then this appellant would not have been injured while he was attempting to put a block of ice in the water container.

Third--It is the contention of the appellant that, whatever may have been proximately the cause of the injury suffered by the appellant, and whatever neglect by whatever person or persons may have occasioned the injury suffered by the appellant, that there is a direct conflict of evidence as to the proximate cause of the injury suffered by the appellant; and that there being a direct conflict of evidence on said essential points the question of the proximate cause of the appellant's injury should have been left for the jury to determine, and that the trial court, in peremptorily directing the jury to find for the appellee, defendant below usurped the constitutional powers of the jury and really decided disputed questions of fact. Campbell v. Gulf & M. & N. Railroad Company (1921), 89 So. 1.

Fourth--It is the further contention of the appellant that if the undisputed facts regarding the location and handling of this saw be considered, and if it be true that the appellant would not have been injured, if this saw had not been running at this particular time, and at this particular place, then it does not matter what neglect the appellant may have been guilty of. Whatever negligence the appellant may have been guilty of can only be considered in reducing...