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

• Decision Date: 28 May 1928
• Docket Number: 26976
• Citation: 117 So. 339,150 Miss. 882
• Parties: YAZOO & M. V. R. Co. v. SMITH. [*]
• Court: Mississippi Supreme Court

117 So. 339

150 Miss. 882

YAZOO & M. V. R. Co. v. SMITH. ^[*]

No. 26976

Supreme Court of Mississippi

May 28, 1928

Division A

1. MASTER AND SERVANT. Evidence warranted jury's finding that carpenter working on box cars was injured because of railroad's failure to furnish reasonably safe place to work.

In action by railroad employee for injuries sustained while working as carpenter in work of converting box cars into a storeroom and office when struck by tie-rod driven through car by employees working on inside, evidence warranted jury's finding that plaintiff was injured because of failure of master, the railroad company, to furnish him a reasonably safe place to work at time he was injured, and that failure to furnish safe place was proximate cause of injuries.

2. MASTER AND SERVANT. It was master's nondelegable duty to warn servant working on box car of impending danger growing out of work.

Where plaintiff was working as carpenter on scaffold on outside of railroad box car taking off angle irons, it was duty of master to warn him of impending danger when employee working on inside of box car drove tie-rod through car, resulting in injury to plaintiff, and master could not protect itself by undertaking to delegate such duty to servant.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Panola county, First district, HON GREEK L. RICE, Judge.

Action by William B. Smith against the Yazoo & Mississippi Valley Railroad Company and another. From a judgment for plaintiff defendant named appeals. Affirmed.

Affirmed.

H. D. Minor, Chas. N. Burch and C. H. McKay, for appellant.

No liability unless absence of safe place to work was proximate cause of injury. In practically every case of injury to an employee it develops that if he had been somewhere else he would not have been hurt. In other words, in every instance the injured employee happened to be in an unsafe place. But that does not furnish a basis of recovery where the proximate cause of the injury was not the unsafety of the premises but some overt act from another source. This is well illustrated by the case of Railroad v. Bishop, 76 Miss. 758. There, a section hand, while riding on a car, "over his protest, was required by the section foreman to sit on a plank placed on the hand car to be used for a seat and hold a keg while the car was being run." While crossing a bridge, the plank on which deceased was sitting struck the lever used to operate the drawbridge, this lever having been negligently left in an upright position by a fellow servant, as a result of which he was knocked from the car into the water and drowned. The court reversed a judgment for the plaintiff on the ground that "use of the plank was not the cause of the injury complained of;" that the cause of the injury was the act of a fellow servant of the deceased in charge of the drawbridge. The proximate cause of the injury in this case was the act of plaintiff's fellow servant, Williford, in stricking the tie rod and driving it against plaintiff's body. The place was a mere incident. In a case quite similar in its facts, the principle of the case just cited was applied by the Federal supreme court. A section foreman in charge of a hand car had his section hands on the car and gave orders to the plaintiff, one of the laborers who was with him on the hand car, that he should not look back to watch for a train as he (the foreman) would watch and give warning. Through the negligence of the foreman in failing to watch and give warning the plaintiff was injured. Martin v. Railroad, 166 U.S. 403; Wood v. Potlatch Lbr. Co., (C. C. A.) 213 F. 591, is illustrative of our contention. Plaintiff, employed by defendant in the operation of a sawmill, was directed to assist in making repairs in the brick work about the base of a refuse burner. While so engaged, he was injured by a piece of timber thrown from the conveyor attached to the burner through the negligence of F., who with two assistants had just completed the installation of a new sprocket wheel at the top of the conveyor. The argument for plaintiff was that the accident was due to the master's failure to provide a reasonable safe place to work--a duty which he could not shift. The court denied this contention and affirmed a judgment for the defendant. The same principle was recognized and applied in Railroad v. Williams, 96 Miss. 375. Under this decision, the instruction given for plaintiff in the instant case (quote supra, p. 16) was clearly error and there should have been a peremptory instruction for defendant.

Master's duty as to safe place of work does not apply to transitory peril nor to dangers arising during the course of the work. This principle finds recognition in all the authorities only a few of which need to be referred to. Cybur Lbr. Co. v. Erkhard, 118 Miss. 401, a tong man operating a skidder in an open forest, was injured while walking to slacken a line--being struck by a broken tree falling from its stem. A judgment for plaintiff was reversed and suit dismissed. The court quoted from Morman v. Wabash R. Co., 158 Ill.App. 244, to the effect that where the master has provided a reasonably safe place for the servant to work and, in the prosecution of that work changes are produced in the conditions of the place. "The rule has no application where the master does not make or create the conditions but they are created by the progress of the work and the men engaged in it."

In Shipbuilding Co. v. Carter, the court, in denying liability, said: "We think that the rule which requires the master to furnish a safe place to work does not apply to cases where the prosecution of the work itself makes the place and creates the danger. The prosecution of the work in the instant case necessarily changed the place to work as the work progressed." Internat. Co. v. Carter, 121 Miss. 103. The court quoted with approval from Miller v. Moran, 39 Wash. 631. In Hercules Powder Co. v. Hammack, 145 Miss. 304, the plaintiff, an employee, was injured while he and the foreman under whom he was working were engaged in pulling up a stump by means of a cable attached to a tractor. The employee claimed that the stump was pulled from the ground by the tractor before he had given the signal to begin pulling as a result of which he was struck by a large root attached to the stump and thereby violently jerked from the ground. The court held that the proximate cause of the accident was the negligence of a fellow servant. G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, is in point. The court, reversing a judgment for plaintiff and entering a judgment for defendant, quoted from the opinion in Armour v. Hahn, 111 U.S. 313, later referred to (infra p. 33) and quoted also from Kentucky Coal Co. v. Nanch (C. C. A.), 165 F. 44). A leading case in Wisconsin dealing with a situation like this is Knudsen v. Stone Co., 145 Wis. 394. Master's duty to provide safe place does not require a safe condition at every moment so far as safety depends upon due performance of the work by the employee and his fellows. Armour v. Hahn, 111 U.S. 313; G. M. & N. Ry. v. Brown, 143 Miss. 890. This view of the case is thoroughly borne out by the opinion in a recent case in the circuit court of appeals for the Fifth circuit. Gulf Transit Co. v. Grande (C. C. A.), 222, F. Rep. 817, 820. The case of Haas v. American Car Co., 157 S.W. 1036, is quite pertinent. See, also, Goransson v. Mfg. Co., 186 Mo. 306; Lewinn v. Murphy, 63 Wash. 356; Dobbins v. Brown, 119 N.Y. 188.

Analogy to rule of simple tool. This rule is well settled in Mississippi that the master is under no duty, as respects simple tools, to furnish the servant with a safe tool, the servant's knowledge and judgment in such case being equal to the master. Allen v. Yarbrough, 133 Miss. 652; Wausau Lbr. Co. v. Cooley, 130 Miss. 333; Bear Creek Co. v. Fountain, 130 Miss. 436; Tatum v. Crabtree, 130 Miss. 473; Wood v. Lumber Co. (C. C. A.), 213 F. 591; Deye v. Tool Co. (C. C. A.), 137 F. 480.

Failure to promulgate rules. The principal, if not the sole reliance of the plaintiff in this case is on the proposition that the master was negligent in failing to promulgate rules and regulations as to the conduct of the work, as a result of which the place of work was unsafe. The cases of Coast Ship Co. v. Yeager, 120 Miss. 152; and Benton v. Finkbine Lbr. Co., 118 Miss. 558, are cited. Our answer is that the rule in question does not apply where the work is not complicated or intricate but is simple and involved only the injured servant and his co-worker. Wood v. Lumber Co. (C. C. A.), 213 F. 591; Deye v. Tool. Co. (C. C. A.), 137 F. 480, 18 R. C. L. 573, 574, sec. 80; Boyer v. Eastern Ry Co., 87 Minn. 367, 92 N.W. 326; Tatum v. Crabtree, 130 Miss. 473.

This court, in the Tatum case, referred to and distinguished the earlier case of Coast Ship Co. v. Yeager, 120 Miss 152, reviewing and quoting from the cases above cited and the further case of Olsen v. Lumber Co. (C. C. A.), 100 F. 384. The principal reliance of the plaintiff--almost his sole reliance, indeed--is the case of Coast Ship Co. v. Yeager, 120 Miss. 152, and the case of Benton v. Finkbine Lumber Co., 118 Miss. 558, the latter decision being responsible for the former. In the former case Judge Stevens who wrote the opinion indicated a doubt as to the soundness of the latter. In Hercules Powder Co. v. Williamson, 145 Miss. 172, the employee's duty was to bore holes in pine stumps, put pieces of dynamite therein with fuses attached and then light the fuses so as to blow up the stump. This meant that pieces of wood would be hurled through the air, four, five or six hundred yards. It was held that the lower court was correct in refusing the defendant's motion for a peremptory instruction...