Summary
noting employers have nondelegable duty to exercise reasonable care to furnish a reasonably safe place for employees to work
Summary of this case from Neel v. Fannie MaeOpinion
No. 32919.
January 31, 1938.
1. MASTER AND SERVANT.
In employee's action against stockyards proprietor for injuries sustained when bulls, which he was driving to auction pen, were frightened by horses released nearby and ran over employee, evidence was sufficient for jury to find that proprietor did not exercise reasonable care to provide a reasonably safe place to work, by failing to provide locks for doors so that horses could not be released to mingle with bulls.
2. APPEAL AND ERROR.
The Supreme Court is not required to prescribe a certain method whereby an operation can be made reasonably safe for employees, but the court must declare that when facts warrant finding that employer has not exercised reasonable care to create a reasonably safe place for a human being to work, negligence is established.
3. MASTER AND SERVANT.
A master has a nondelegable duty to exercise reasonable care to furnish a reasonably safe place for his servant to work.
4. MASTER AND SERVANT.
Where stockyards proprietor negligently failed to guard against release of horses into alleyway through which employee was driving bulls to auction pen, proprietor's negligence continued when bulls were frightened by released horses and ran over employee, even though proprietor might reasonably have anticipated that horses might be released, and proprietor was not relieved of liability to employee for injuries on ground that release of horses was the "sole proximate cause" thereof.
APPEAL from the circuit court of Lauderdale county. HON. A.G. BUSBY, Judge.
Gilbert Cameron, of Meridian, for appellant.
There were no hidden dangers here; there were no dangers from which the employee could not escape by vigilance and by getting out of the way; there were no dangers here that any experienced man in handling animals could not know or anticipate; there were no dangers that any man who undertakes to handle animals could not have anticipated.
Jones v. Railroad Co., 90 Miss. 547.
It will be noted that in the case at bar there was no complaint made to Mr. Adams to make any repairs of any existing defect; to make repairs on the bolts to the pens or remedy any other defects; nor were there any charges of any defect on any of the equipment, appliances, or ways in the stockyards but the only charge was a demand for safer appliances, that is, substitute locks for the sliding bolts, and the Jones case, supra, held that it was not the duty of the master to use the safest appliances, even if the new ones were feasible.
Vehicle Woodstock Co. v. Bowles, 158 Miss. 347.
As to the charge that there was insufficient help, it is sufficient to say that there is no proof as to the number of employees in the alley nor any proof as to what additional help would have been necessary nor what their duties would have been nor what they could have done.
As to the suggestion in question to witnesses that there was no warning given when the horses left the pen, it is sufficient to say that no one knew who turned them out, no proof that employees did it, and besides, Mr. Hicks could have seen the horses as soon as any other employer as he was facing the same direction; the horses did not come from his rear and run him down, but came facing him and he could and should have seen them as quickly as a watchman.
Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279.
If Hicks had been working with his back to the horses we would have a different situation, for then the danger would have been hidden and the situation like that in:
Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Y. M.V.R.R. v. Smith, 150 Miss. 882, 117 So. 339.
Whatever the danger it was open and obvious; there was no sudden breaking out of horses upon him; they had to travel a long distance before reaching him, always facing him, never running upon him unawares from the rear.
There is no contention that Mr. Adams undertook to warn him of approaching horses face to face with him as the company failed to do as agreed with Ferrell who was run into from behind, in the case of Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476.
The horses were not turned out by any foreman, or even employee, and Hicks was not in the predicament of Norton in Norton v. Standard Oil Co., 171 Miss. 758, 171 So. 691.
There was nothing complex about the business; there is no charge that rules should have been promulgated or that different rules were necessary or usual in the prosecution of the business.
Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.
There was no rule requiring him to be and remain in a position of known danger against which he could not protect himself as was Perritt in Long Bell v. Perritt, 172 So. 747.
The rules of law in respect to the obligation of the master to adopt and put into operation an adequate method or system for the safety of his servants are, in all substantial particulars, the same as those dealing with his obligation as to the promulgation and enforcement of rules and regulations for the maintenance of a safe method or system. And that obligation has been expressly defined by this court in Tatum v. Crabtree, 130 Miss. 462, 94 So. 449, as follows: "A master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the work about which such servants are engaged is dangerous to life or limb; it is only where, in addition to being dangerous, the work of the servants is also complex, and the conditions which may arise are uncertain and obscure. If the work is simple in character and free from complexities, the master is under no obligation to adopt rules. In other words, where the danger is apparent to all, the duty of the servants to avoid such danger is manifest, no rules are required."
Brown v. Coley, 168 Miss. 778; Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279; Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906.
If the master is not an insurer of the safety of the places, appliances, and machinery or employees, then how can he be held liable for the acts of third persons over whom Hicks had as much control or more than Adams had back in his office?
We respectfully submit that there was no issue for the jury and the court erred in refusing a peremptory instruction for the appellant and that the case should be reversed and rendered.
M.V.B. Miller, of Meridian, for appellee.
Appellee's case is this: that this practice of turning horses into the runway when cattle were being driven on same made it a place that was not reasonably safe to work in, and that the master failed in his duty to exercise reasonable care to make the place reasonably safe. Appellant's witness admitted that this practice made the place a place that was not reasonably safe. Therefore, the only issue left in this case was whether reasonable care would have made it reasonably safe.
As was held in the case of Anderson v. McGrew, 122 So. 492, decided by our court, if the master exercises reasonable care to make the place reasonably safe, he has performed his full duty, and the servant cannot complain that he would have preferred that the master have done something else than what the master did do in exercising reasonable care.
In the McGrew case, supra, a guard had been removed from a capping machine. The master in the place of it furnished the servant gloves, which the evidence showed would have afforded the servant as much or more protection than the guard that had been removed. Our court held that in furnishing the gloves the master performed his full duty.
In the case at bar, appellee was a laborer, with the duty of driving the cattle to and from the auction ring, and the further duty of unlocking and checking out at the northern exit of the stockyard stock that had been bought. He was not charged with any duty toward devising methods, or plans, ways, or means, or the system of the work. That was the nondelegable duty of the master.
It became a question for the jury to decide whether the master had exercised reasonable care to keep the runway where appellee Hicks was performing his duty reasonably safe.
Finkbine Lbr. Co. v. Cunningham, 57 So. 916, 101 Miss. 292.
In the case of Murray v. Natchez Drug Co., 56 So. 330, 100 Miss. 260, a case in which lighting gas, not wild horses, was permitted to escape in the laboratory of the Natchez Drug Company. No reasonable effort was made to protect the employees there from dangers that would result in an explosion of this gas. An explosion occurred resulting in a number of deaths. The trial court granted a peremptory instruction in this case. It was reversed and held by this court to be a case for the jury because the master had failed to exercise reasonable care.
Miss. Cotton Oil Mills Co. v. Ellis, 17 So. 214, 72 Miss. 191; Norton v. Standard Oil Co., 171 So. 691; McLemore McArthur v. Rodgers, 152 So. 883; Lee County Gin Co. v. Middlebrooks, 137 So. 108.
In the case of Wilbe Lbr. Co. v. Calhoun, 140 So. 680, wherein plaintiff recovered a judgment which was affirmed on appeal, the facts briefly were these: The defendant operated a planing mill. Plaintiff was his employee and operated a ripsaw. It kicked a piece of timber back which struck appellee. The saw was unguarded. There was evidence also that a fellow servant contributed to the plaintiff's injury in the manner in which he held the plank from which the piece struck back against the plaintiff. It was held that whether or not it was the master's duty to furnish a guard so as to make the place of work reasonably safe was a question for the jury, and if the master failed in this, he was liable, even though a fellow servant was also guilty of negligence which contributed to the injuries.
In the case at bar, it was not timber that struck appellee, it was bulls. And the question of whether master exercised reasonable care to keep the horses from causing the bulls to run over appellee makes this case one for the jury's decision.
Eagle Cotton Co. v. Pickett, 166 So. 764; Gulf Refining Co. v. Ferrell, 147 So. 476; Coast Ship Co. v. Yeager, 81 So. 797; Y. M.V.R. Co. v. Smith, 150 Miss. 882, 117 So. 339; Ross v. Louisville N.R. Co., 172 So. 735; Edwards v. Haynes-Walker Lbr. Co., 74 So. 284.
It is our contention that the master owed the appellee the duty of using reasonable care to make the place he worked reasonably safe. In the case at bar any verdict except one for the plaintiff would have been against the overwhelming weight of the evidence.
We respectfully submit that the only question in this case is one of fact. Repeatedly this court has said, "It is a rare case of negligence that is not one for the jury's decision." We respectfully submit that this is not one of those rare cases, and that the trial court rightfully submitted this case to the jury, and that the jury were well warranted in reaching the verdict they did.
The appellee, Hicks, recovered a substantial judgment in an action for damages against Adams, administrator, from which judgment the latter prosecutes this appeal. The suit was originally brought against M.R. Adams, who died while the case was pending, and the cause was revived in the name of his administrator.
The contention of the appellant is that he was entitled to a peremptory instruction, and that, as a matter of law, the case should not have been submitted to the jury. M.R. Adams, in his lifetime, was engaged in the business of selling cattle, horses, mules, and hogs at public auction, in Meridian, Miss. He operated the Meridian Union Stock Yards, in a building where live stock were kept, for sale at auction. Hicks was employed by Adams to drive the stock from their stalls to and from the pen where they were sold at auction; it was also his duty to take up permits of stock sold, upon being carried out of the building by the owner. While engaged in driving some bulls south to the pen to be auctioned off, through an alley about twelve feet wide, horses were released in the alley about thirty-five feet south of where the bulls were penned. The horses rushed down upon the bulls, who were frightened, and turning, ran over the appellee, thereby seriously injuring him. It was a custom, approved by the manager and the owner, to receive all live stock at the north door or gate of the building. Horses were placed in pens south of the auction pen, facing what is called the west alley; then there was an east alley of about the same width, with pens on either side. Although there was a gateway in the south of the building, it was the custom to keep that gate locked, and all live stock admitted into the building, or permitted to be taken out, passed through the north gate. As live stock came into the building, numbers or stickers were attached to them by the employees; they were then placed in pens substantially built of lumber, each with a gate opening into the alley; these gates being fastened by means of a wooden slide, which fastened into a slot in the post with which the gate connected. These pens were shown to be safely closed; the only way in which stock could escape therefrom was by some person sliding the bar, and opening the gate.
Both the owner and the manager knew that this method of conducting auction sales required quick action on the part of the employees in driving the stock to the auction pen when called on by the manager so to do. They also knew it was dangerous for horses and bulls to be allowed in the alley at the same time. The evidence for the plaintiff tended to establish that it was customary, while cattle were being driven from the north through the alley to the auction pen, for owners, employees and other people to turn horses loose in the alley; and that under their system, when live stock was bought at the auction sale it was returned to the pen, the owner was given a statement containing the number of his live stock; whereupon he went to the office, the bookkeeper calculated the amount to be paid by the purchaser, and, when so paid, the purchaser was given a permit which entitled him to remove his live stock from the building; the only exit provided being the north gate.
It was shown by the appellee that at some other stockyards locks were provided for the gates which confined the animals, so they could only be removed as and when the owner directed. There is a sharp conflict on this point. The general manager of appellant testified that they had a rule among their employees that horses were not to be turned into the alley during the time that cattle and bulls were to be auctioned. It was a custom to auction horses and mules in the morning and until 1 o'clock in the afternoon; immediately thereafter the sale of bulls at auction was begun. The accident in which the appellee was injured occurred after 1 o'clock in the afternoon, while he was in discharge of his duty, driving the bulls to the auction pen, as he had been ordered to do by the manager.
In these stockyards were handled wild, unbroken horses, and vicious bulls. The record shows that on sale days permitting horses to be turned into the alley, where they came into conflict with bulls, created a complex and very dangerous situation.
Prior to this, accidents of a similar nature had occurred both to live stock and to human beings. On two occasions Hicks had requested the owner of the building to provide locks for the doors, so that horses would not be turned in upon him while engaged in driving the bulls — or to arrange some other safe method. It was evident that the use of locks on the gates, to confine the horses, would have been a cheap and safe precaution. The evidence further showed that horses and mules could have been driven out of the building by another gate, completely obviating his danger. Adams had acceded to Hicks' request to take measures to prevent further danger. It is admitted that under the system as practiced the owner and manager of the stockyards could not control purchasers of horses or mules, after the permit to remove them from the building had been issued; although the manager said they frequently requested the owners not to remove them while the cattle were on sale in the afternoon.
It is contended by the appellee that the evidence which we have set forth warranted the jury in finding that Adams was negligent because of his failure to provide a reasonably safe place for the appellee to work; and that the verdict of the jury should settle all issues of fact in his favor.
Appellant contends that if the horses had been turned out by employees, that would have been the act of a fellow servant; that if turned out by purchasers or others, not employed by Adams, the latter would not be liable therefor. Appellant next contends that even if locks had been provided, it would have delayed delivery; and that the evidence showed that the gates, as used, were such as were in common use in other stockyards. In the third place it is contended that the danger was so open and obvious that Hicks assumed the risk, and that therefore there is no liability.
We think the jury were warranted in finding that the master or owner was negligent in this matter, and that the negligence consisted in a system, and the continuance thereof, which constantly created a dangerous place for an employee such as Hicks to work; that the master was aware of this danger, and had been requested to take steps to correct it — and had agreed to do so; that the master knew, and had reason to know, that the owners and other people could easily turn horses and mules out in the alley to mingle with bulls and cows. It is conceded that this constituted a dangerous situation.
It is not the duty of this court to prescribe a certain method by which an operation can be made reasonably safe; but it is our duty to declare that when the facts warrant a finding that the master has not exercised reasonable care to create a reasonably safe place in which a human being is to work, then negligence is established. See Edwards v. Haynes-Walker Lumber Co., 113 Miss. 378, 74 So. 284; Mississippi Cotton Oil Co. v. Ellis, 72 Miss. 191, 17 So. 214; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; McLemore v. Rogers, 169 Miss. 650, 152 So. 883; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764, and Ross v. Louisville N.R. Co., 178 Miss. 69, 172 So. 752; also, Parlee Albert, Adm'r, v. Doullut Erwin, Inc., Miss., 178 So. 312, decided by Division B, January 24, 1938.
Having concluded that the jury were warranted in finding that the master here did not exercise reasonable care to provide a reasonably safe place to work, the character of the work considered, then the servant did not assume the additional risk which said negligence proximately caused. Brown v. Coley, 168 Miss. 778, 152 So. 61, and McLemore v. Rogers, supra. We cannot agree with counsel for the appellant in his contention that because the master himself did not release the horses — for that matter it is not shown who did release them on this particular occasion — that therefore they were released by those over whom they had no control. In other words, that the release of the horses into the alleyway was the sole proximate cause of Hicks' injury. When we remember that it is the nondelegable duty of the master to exercise reasonable care to furnish a reasonably safe place in which the servant is to work, and he fails so to do, although he might reasonably have anticipated that such intervening cause would occur, in our opinion the original negligence continues; and the latter cause will not interrupt the connection between the original cause and the injury. In this case there is no question but that the master could easily foresee that any one who so desired could at any time set the horses at liberty in this alleyway; therefore, such action of a third party does not interrupt the connection between the original negligence of the master and the injury to the servant. Russell v. Williams, 168 Miss. 181, 150 So. 528, 151 So. 372, and Ross v. Louisville N.R. Co., supra. The master did have control of the system, so that when he delivered a permit to a purchaser of live stock, that person was not restricted in the manner of, or time for, removing his property from the building.
We think it would be profitless to wander through the authorities cited as applying to this case, where the principles here involved have been analyzed and applied so long and so often.
Affirmed.