Yazoo & M.V.R. Co. v. Perkins

• Decision Date: 09 November 1914
• Docket Number: 16560
• Citation: 66 So. 273,108 Miss. 111
• Parties: YAZOO & M.V.R. CO. v. PERKINS
• Court: Mississippi Supreme Court

66 So. 273

108 Miss. 111

YAZOO & M.V.R. CO. v. PERKINS

No. 16560

Supreme Court of Mississippi

November 9, 1914

APPEAL from the circuit court of Warren county. HON. H. C. MOUNGER Judge.

Suit by E. L. Perkins against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Mayes &amp Mayes, for appellant.

Defendant's peremptory instruction should have been given for the further reason that, according to plaintiff's own showing, he assumed the risk of the scaffold's condition. For the same reason the court erred in refusing the twenty-fourth and twenty-seventh instructions requested by defendant. Assumption of the risk is not the same as contributory negligence; and it was not until the Act of 1914 that it was abolished as a full defense.

Appellee was an experienced carpenter, and if, as a matter of fact the manner in which Jones directed the scaffold to be repaired was the least improper, appellee was fully aware of this fact. "Q. You had built or constructed a great many scaffolds like the one you have testified about, during your lifetime as a carpenter? A. Yes, sir; I have constructed a good many. Q. You know all about the erection and construction of a scaffold of that kind? A. Yes, sir. Q. You knew how they ought to be constructed? A. Certainly. Q. You thought it was safe when you went on there? A. No sir; I did not. Q. Didn't think it was safe? A. I told him it looked like a trap to me when he had the change made and directed me to put it up that way."

Appellee seeks to avoid the consequence of this admission by insisting that, though believing the scaffold was unsafe, he relied upon the judgment of Jones. If the manner in which Jones directed the scaffold to be repaired was not reasonably safe and appellee knew this prior to his injury for that matter--if he relied upon the judgment of Jones, having the while this knowledge, he simply assumed the error of that judgment. Knowledge is always charged against its possessor, and it cannot be juggled around under fine spun theories until its possession is of no consequence. Jones' judgment and his directions were the same thing, and if appellee knew the latter was unsafe he knew the other was.

Furthermore, we deny that appellee relied on the judgment of Jones. The evidence clearly shows--and appellee himself states that the cause of the scaffold's fall was the manner in which the end of the plank was nailed. These nails were wholly responsible for the accident. Appellee stated that he, himself, drove the nails "at the direction of the assistant foreman." Not only that, but he stated that Jones told him the exact number to drive--"two or three." That is to say he states that in the judgment of Jones "two or three" was sufficient. Now let us see whether appellee, as a matter of fact, relied on the judgment of Jones.

"Q. You nailed the end that kicked up? A. Yes, sir. Q. You didn't put any more nails (than Jones directed) in the end that kicked up because you didn't think it necessary? A. I put one more than the assistant told me to. Q. Why didn't you put more than the foreman told you? Tell the jury if the foreman told you the exact number of nails? A. He told me to nail down two or three tenpenny nails, and that would be sufficient, and I put four in there."

In view of his prior admission, the situation of appellee is beyond doubt. There is no such thing in law as supplementing some one else's judgment, and relying on it at the same time. He either did or did not rely on Jones' judgment, and we submit to the court that his own statement shows that he was not willing to rely upon what Jones thought was a sufficient number of nails, and exercised his own judgment about just how many there ought to be; and when he did so, he assumed the risk of the scaffold's fall from that source. This must be the case when the man himself states that he thought the thing was unsafe from the beginning.

Theo. McKnight, for appellee.

It is an undisputed fact that Jones directed the change in the scaffolding by the removal of the post, and that he directed that said post be not put back in its original place, but that it be substituted by the nailing down of the plank as described in the record. The falling of the scaffolding is prima facie evidence of negligence. Thompson on Negligence, sec. 7650; Railroad Company v. Groome, 97 Miss. 201; Green v. Banta, 48 N.Y.S. (16 Jones & S.) 156.

Appellant does not deny that Jones, after directing the substitution of the nailing of the plank for the replacement of the post, told appellee to go upon and, use said scaffolding; but on these points, content themselves by saying: First that Jones was not a vice principal, but a fellow servant of appellee; second, that appellee was guilty of contributory negligence in that he put one more nail into the plank than he was directed to do by Jones, and in going upon scaffolding as directed by Jones; third, that appellee, by obeying the instructions of Jones to nail down the plank and go upon the scaffolding, assumed the risk of all danger and exonerated appellant of all liability, even though Jones were a vice principal.

Counsel says that Jones was nothing more than an ordinary carpenter in his contractual relations with the master; that he was simply a "time-keeper," left there temporarily to see that the men perform their duty; and in case of dereliction to report them. That this statement does not comport with the record, is most respectfully submitted. Again, they say that he could not be a vice principal because he sometimes worked even when Carr was not present, and they cite the record as to his having been engaged in cutting some paper for his men at the very time when the scaffolding gave way.

In reply to this position of counsel the following is quoted from Carter v. Baldwin, 81 S.W. 207: "Therefore he was a vice principal, notwithstanding the fact he worked with the men and performed the same character and grade of labor they performed; and it was not error under all the evidence, for the court to assume in the instructions that Gilmore was a vice principal." And, after citing a long list of authorities in support of this proposition, the opinion continues as follows: "As vice principal, it was Gilmore's duty to provide the men with as reasonably safe place to work as the nature of the employment would admit." While the employees of a railroad company engaged "in other work not at all connected with the operation of the cars," in the Heflin Case, does not come within the provisions of section 198 of the Constitution, because: "They would be in no more danger than any other like employee of any other master," yet, such employees do have the same right as the employees of other masters. Therefore, it follows, that in the instant case the appellant is to be governed by the same rules of law relating to the use of scaffolding, as would govern an individual, or in other words, the common law, as applied between master and servant.

One of these rules of the common law is that the master owes to the servant the duty of providing a safe place, and safe ways and appliances, in and with which to work. Groome case, 97 Miss. 208; Fitzgerald v. Southern Ry. Co., 6 L. R. A. (N. S.) 214, 337; Buyers v. Carnegie Steel Co., 16 L. R. A. (N. S.) 214; Railroad v. Hardy, 88 Miss. 732, and Finkbine Lumber Co. v. Cunningham, 101 Miss. 292.

It is out of the fundamental principles of law forbidding the master from escaping liability for the performance of his primary duties to his servant, or his nonperformance thereof, by delegating such duty to another, that the doctrine of vice principal arises. Miller v. Missouri Pac. Ry. Co., 32 Am. St. Rep. 673; Fink v. Ice Co., 84 Iowa 322, 51 N.W. 155; Newberry v. Mfg. Co., 100 Iowa 441, 69 N.W. 743, Am. St. Rep. 582; Haworth v. Manufacturing Co., 87 Iowa 765, 51 N.W. 68, 62 N.W. 325; O'Neal v. Railway Co. (Minn.), 51 L. R. A. 590, and notes (S. C., 82 N.W. 1086); McMahon v. Mining Co., 95 Wis. 308, 70 N.W. 468, 60 Am. St. Rep. 117; Van Disen v. Letellier, 78 Mich. 492, 44 N.W. 572; Ryan v. Bagaley, 50 Mich. 179, 15 N.W. 72, 45 Am. Rep. 35; Railroad Co. v. Patterson, 162 U.S. 346, 16 S.Ct. 843, 40 L.Ed. 994; Baldwin v. Railroad Co., 75 Iowa 297, 39 N.W. 507, 9 Am. St. Rep. 479; Mitchell v. Robinson, 80 Ind. 281, 41 Am. Rep. 812.

"The master is responsible for the negligence of a servant, who stands as his vice principal and direct representative, invested with his own authority over inferior servants, and the latter when injured by such negligence, are not barred by the doctrine of fellow servants." Faren v. Sellers, 36 La. Ann. 1011, 3 So. 363, 4 Am. St. Rep. 256; Slater v. Chapman, 67 Mich. 523, 35 N.W. 106, 11 Am. St. Rep. 593; Lewis v. Seifert, 116 P. 629, 11 A. 514, 2 Am. St. Rep. 631; Haworth v. Seevers Mfg. Co., 51 N.W. 68; Gravelle v. Minneapolis & St. L. Ry. Co. (C. C.), 11 F. 569, 3 McCarary, 359; Mad River & Co. v. Barber, 67 Am. Dec. 312; Lindwall v. Wood (C. C.), 44 F. 855; Stevens v. Hannibal & Co., 86 Mo. 221.

"A foreman entrusted by the master with control of the work in which a servant is engaged, and with authority to direct him how, when and where it shall be done, is a vice principal for whose negligences the master is liable to the servants." Cox v. Syenite Granite Co., Mo.App. 424. "A foreman with power to hire, discharge, and direct workmen and to obtain and employ suitable means and appliances, etc., is not a fellow servant of a laborer in the employ of the common master." Hussey v. Coger, 39 Hun. 639. "A foreman having full charge of work, and empowered to give all directions to the workman, is not a fellow servant with the workmen." ...