Wilson & Co., Inc. v. Holmes

• Decision Date: 22 November 1937
• Docket Number: 32874
• Citation: 180 Miss. 361,177 So. 24
• Parties: WILSON & CO., INC., v. HOLMES
• Court: Mississippi Supreme Court

177 So. 24

180 Miss. 361

WILSON & CO., INC., v. HOLMES

No. 32874

Supreme Court of Mississippi

November 22, 1937

Division A

Suggestion Of Error Overruled January 3, 1938.

APPEAL from the circuit court of Adams county HON. R. E. BENNETT Judge.

Action by A. L. Holmes against Wilson & Company, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

C. F. Patterson, of Natchez, for appellant.

There is no evidence of negligence on the part of defendant employer to support verdict in favor of the plaintiff.

Bridges v. Jackson Elec. R. Co., 86 Miss. 584, 38 So. 788; I. C. R. R. Co. v. Fowler, 123 Miss. 826, 26 So. 460; New England Navigation Co. v. Luliano, 190, Fed. 551, 113 C. C. A. 23; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Cy. Burr Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235; Pack v. Northeast Cold Co., 145 Ky. 235, 140 S.W. 174; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Buckeye Cotton Oil Co. v. McMorris, 172 Miss. 99, 158 So. 799.

The overwhelming weight of the evidence clearly shows that plaintiff was furnished a reasonably safe place in which to work and that his injury, if any, was entirely due to his own negligence as a matter of law.

Hooks v. Mills, 101 Miss. 901, 57 So. 545; Anderson Tully Co. v. Goodwin, 174 Miss. 162, 163 So. 536.

The court erred in overruling defendant's motion for a new trial, in view of the overwhelming weight of the evidence showing no negligence of defendant.

Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So; 191; Scarf v. Jackson, 216 N.Y. 598, 111 N.E. 242.

There is an entire lack of competent evidence show in a causal connection between the accident and the injury complained of.

Tatum v. Crabtree, 94 So. 449; Denton v. Mammoth Spring Co., 105 Ark. 161, 150 S.W. 572; Collins v. Galliff Coal Co., 196 Ky. 517, 244 S.W. 887; Marlowe v. Kilgen, 252 S.W. 424; Davis v. Castelle, 257 S.W. 870; Husk v. Gunther Grocery Co., 153 Ky. 595, 156 S.W. 120; Malvern Lbr. Co. v. Sweeney, 116 Ark. 56, 172 S.W. 831.

Defendant was not an insurer of plaintiff's safety but fulfilled its duty when it furnished plaintiff a reasonably safe place to work in the exercise of due care.

Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279; Anderson Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536; Herren v. Tuscaloosa Water Works Co., 40 So. 55; Tallahassee Falls Mfg. Co. v. Taunton, 16 Ala. 578, 80 So. 152; Ford v. Tremont Lbr. Co., 123 La. 742, 39 So. 429; Herbert v. Kingston Lbr. Co., 128 La. 775, 52 So. 1021; Lutenbacher v. Mitchell-Boone Co., 136 La. 805, 67 So. 888.

The instructions given by the court for the plaintiff were erroneous in view of the overwhelming preponderance of the evidence that the floor where plaintiff was employed was reasonably safe, and that appliances used were not defective and were both similar and common to the industry.

Columbus & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans R. R. Co. v. Williams, 96 Miss. 376, 53 So. 619.

The court erred in refusing to give to the jury defendant's instruction to the effect that if plaintiff continued working for several days after his alleged injury without complaining of his injury and reporting it to the defendant, that the jury could weigh such fact in determining whether plaintiff had been injured as he alleged.

Jos. E. Brown, of Natchez, for appellee.

The evidence of the appellee was that before the boxes were moved they had already been stacked and loaded on the platform by the appellant in two stacks, twelve bales high each, the usual and customary method of loading employed by the appellant. Not a witness denies that this was the method employed. The entire testimony and evidence of the appellant with reference to an unsafe method of loading and stacking the bales upon the platform, or fiat, described as dangerous and unsafe the stacking of bales twelve high in a single stack. Not a witness testified that it was unsafe to stack and load the conveyor in the manner and to the height as the appellee described the load which he was moving when he was hurt, that is to say, in two stacks, twelve bales high.

Our position is that it was brought out by the appellee, with the able assistance of the appellant, that the appellant had recognized its duty to keep this floor clean of just such trash as was under the jack when it overturned. They had recognized their duty and, as counsel for the appellant expressed it in his question, "Wilson & Company had a colored man there to sweep it up." It is manifest that when the appellant had a colored man, there, to keep that particular portion of the floor clean it cannot escape liability on account of the failure of the colored man to do the very thing which should have been done and which Wilson & Company employed him to do.

Finkbine Lbr. Co. v. Cunningham, 57 So. 916, 101 Miss. 292; J. J. Newman Lbr. Co. v. Dantzler, 64 So. 932, 107 Miss. 31; Gulf Refining Co. v. Ferrell, 147 So. 476, 165 Miss. 296; Hamilton Bros. v. Narciese, 158 So. 467, 172 Miss. 24.

There was ample evidence before the jury as to the worn and uneven condition of the floor and the presence of depressions therein at the exact scene and location of the injury. The jury had the right to say that this worn and uneven condition of the floor, so worn that one of the appellant's witnesses testified that it might break through, caused or contributed to the toppling of the bales and the infliction of the injury upon the appellee.

The appellant asks no instructions qualifying the statement of the rule with respect to the duty to furnish a reasonably safe place in which to work. The appellant having made no point on the statement of the law contained in the appellee's instructions cannot complain of them.

Bridges v. State, 154 Miss. 489, 127 So. 533; Rayl v. Thurman, 156 Miss. 8, 125 So. 912; E. L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350; Brush v. Laurendine, 150 So. 818, 168 Miss. 7.

The appellant cannot complain of the two instructions granted the appellee for the further reason that he asked, and procured, an instruction containing a similar statement of the law.

Wilson v. Zook, 13 So. 351, 69 Miss. 694; I. C. R. Co. v. Jones, 16 So. 300; Y. & M. V. v. Schraag, 36 So. 193, 84 Miss. 125; Y. & M. V. v. Williams, 39 So. 489, 87 So. 344; I. C. R. Co. v. Handy, 66 So. 783, 108 Miss. 421; Clisby v. M. & O. R. Co., 29 So. 913, 78 Miss. 937; Hinton v. State, 91 So. 897, 129 Miss. 226; Edwards v. Cash, 126 So. 33, 156 Miss. 507; Y. & M. V. R. Co. v. Wade, 139 So. 40, 162 Miss. 699.

Under the entire record we earnestly submit to the court that there was ample evidence that the floor was, on account of the worn and uneven places and depressions, unsafe; that it was further unsafe on account of the presence of trash and cleats and that the appellant had a man there at the place of the injury to sweep it up, and that it was not swept up. We submit to the court that the evidence offered by the appellant did not contradict this; that their own manager, Mr. Bronn, who testified, did not by a line or a syllable contradict the appellee's proof as to the dangerous condition of the floor. We submit to the court that the record discloses without dispute that the manner of loading, and the height of the load of bales were that which was customary and required by the appellant. We submit to the court that the injuries inflicted upon the appellee, his pain, suffering and loss of earning power were proximately caused by the negligence of the appellant.

We submit to the court that the issue of fact was fairly presented to the jury and it affords the appellant on ground of complaint that the jury believed the testimony of the appellee and did not believe certain of the testimony offered by the appellant, particularly the testimony of the witness, Pat, in its incredible features.

OPINION

McGehee, J.

Appellee recovered judgment in the circuit court of Adams county for damages in the sum of $ 1,500, on account of a personal injury to his shoulder and arm, which was sustained, according to the finding of the jury, while working as an employee of the appellant, Wilson & Co., Inc., at its box factory located at Natchez, Miss. The case is predicated on the alleged failure of the employer to furnish the employee a reasonably safe place to work, add a safe and suitable appliance with which to do the work in which he was engaged. It was shown, however, without any dispute in the testimony. that the appliance in question was an approved type and standard equipment, commonly used in all box factories, and was not a defective, dangerous, or unsafe appliance. Hence, the only issue to be decided is whether under the facts disclosed by the testimony the master failed to exercise reasonable care to furnish the servant a reasonably safe place to work, and whether such failure, if any, was a proximate cause of the injury and damages sued for.

The proof discloses that the appellee's work consisted in the main of placing the ends in the boxes being manufactured from lumber and lumber veneer in the plant of the appellant; and that on the occasion in question it became necessary, as a part of his duties, for him and a fellow employee to move some empty boxes out of the way and to another part of the factory building. The floor space of the plant covered a large area, and the proper and customary method of moving the boxes was to stack them in bales on a conveyor or roller platform, commonly called a "roller-jack," each bale containing about ten flat boxes, and the conveyor consisting of a platform about thirty inches wide and four or five feet long with a steel frame underneath and under which were four iron wheels, seven inches...