Summary
In Albert, the court held that the jury could conclude that defendant employer breached a duty to enforce a rule requiring sawyers to shout a warning when the sawyers felled a tree or brush.
Summary of this case from Melton v. Melton Planting Co.Opinion
No. 32987.
January 24, 1938. Suggestion of Error Overruled March 7, 1938.
1. EVIDENCE.
Testimony that a fact did not occur, given by witnesses so situated that in the ordinary course of events they would have heard or seen fact had it occurred, is sufficient to warrant jury in finding that fact did not occur.
2. MASTER AND SERVANT.
In action for death of highway contractor's employee who was struck by falling tree sawed down by other crew members while he was picking up and piling brush and debris for burning, whether other members gave warning that tree was about to fall in accordance with rule established by contractor was for jury under conflicting evidence.
3. MASTER AND SERVANT.
Under the "safe place to work rule," a master whose work is complex and dangerous should safeguard his servants by adoption of approved methods and promulgation of rules for their safety, and master does not discharge that duty by the mere promulgation of rules, but he must see that rules are enforced, and duty cannot be delegated.
4. MASTER AND SERVANT.
The "fellow-servant rule" does not apply where dangers are manifest and, in the very nature of the work, are necessarily recurring, but such dangers are a part of the surroundings and place of work, and master must use reasonable care to guard against them by warnings, guards, or otherwise.
5. MASTER AND SERVANT.
Where felling of trees was constantly recurring in constructing highway, contractor was required to guard against danger of falling trees by warnings or otherwise to make a reasonably safe place to work, and that duty was not delegable, and hence contractor could not, under fellow servant rule, avoid liability for death of employee struck by falling tree felled by other crew members while he was picking up and piling brush and debris for burning, since failure of fellow servants to carry out duty was contractor's failure.
APPEAL from the circuit court of Lamar county. HON. HARVEY McGEHEE, Judge.
E.F. Coleman, of Purvis, and Adam H. Harper, of New Orleans, La., for appellant.
The law is well settled in Mississippi that where a servant is required to work in a place where dangers arise or recur unexpectedly and unknown to the servant, then the duty rests upon the master to give timely warning to the servant of these dangers.
Edwards v. Lbr. Co., 113 Miss. 378; Y. M.V.R.R. Co. v. Smith, 150 Miss. 882; Gulf Refining Co. v. Ferrell, 165 Miss. 296; McLamore McArthur v. Rogers, 169 Miss. 650; Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191; 18 R.C.L., page 573, sec. 80; Fletcher v. Ludington Lbr. Co., 76 So. 592; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577; Tatum v. Crabtree, 130 Miss. 473.
The testimony for the appellant shows or establishes the fact that there was no warning given the deceased, Ezell McWilliams, and this being true then the duty resting upon the appellees was breached by them. This being true the court below should have overruled the motion for a directed verdict and permitted the case to go to the jury, and having refused to do this, the court below committed error.
Testimony that a fact did not occur, given by witnesses, so situated that in the ordinary course of events he would have heard or seen the fact that it occurred is sufficient to warrant a jury in finding that the fact did not occur.
1 Wigmore on Evidence, sec. 664; 23 C.J. 40; Y. M.V.R.R. Co. v. Lucken, 137 Miss. 572; G. S.I.R.R. Co. v. Carlson, 137 Miss. 613; Grantham v. G. S.I.R.R. Co., 138 Miss. 360; G.M. N.R.R. Co. v. Hudson, 142 Miss. 542; C. G.R.R. Co. v. Lee, 149 Miss. 543; Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191.
The duty resting upon the master in the case at bar was a non-delegable one, and could not be passed on or delegated to another servant and then permit the master to stand behind the failure of that servant as a defense in the case.
Gulf Refining Co. v. Ferrell, 165 Miss. 296.
It is a non-delegable duty of the master to warn the servant of arising dangers which arise at a time when the servant is busy engaged in the work of the master and the dangers are unknown to the servant but are known to the master, and also the master cannot be relieved by shifting the responsibility to a fellow servant, for the failure of the fellow servant would be the failure of the master.
Gulf Refining Co. v. Ferrell, 165 Miss. 296; Edwards v. Lbr. Co., 113 Miss. 378; Y. M.V.R.R. Co. v. Smith, 150 Miss. 882; A. V.R.R. Co. v. Groome, 97 Miss. 201; Murray v. Natchez Drug Co., 100 Miss. 260; Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191; Railroad Co. v. Bailey, 40 Miss. 395; Ford v. Lake Shore, etc., R.R. Co., 124 N.Y. 493, 26 N.E. 1101; Fletcher v. Ludington Lbr. Co., 76 So. 592; 18 R.C.L. 573, sec. 80.
The court below was in error in directing a verdict for the defendant, and taking the case from the jury. The law is well settled in Mississippi that, where there is substantial evidence tending to establish the plaintiff's case, verdict may not be directed for the defendant. This proposition is so well settled we feel that it will require the citation of no authorities, but in support of the proposition, we cite the following cases from the many:
Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55; Newton v. Homochitto Lbr. Co., 162 Miss. 20.
It is the plain duty of the jury to determine all questions of negligence and contributory negligence.
Section 512, Code of 1930.
It is a well settled law in Mississippi that an employee shall not be held to have assumed the risk of his employment where injury or death results in whole or in part from the negligence of the master.
Section 513, Code of 1930; 18 R.C.L. 601, par. 101; 39 C.J., pages 523-525, par. 629; G. S.I.R.R. Co. v. Bryant, 147 Miss. 421; Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Dinkmann Lbr. Co., 167 Miss. 246.
Davis Davis, of Purvis, for appellees.
The entire record shows that the work being done was of such a nature that whatever danger there was arose out of the doing of the work itself and was transitory. No employee was stationary for any particular length of time, and especially appellant's intestate, Ezell McWilliams. The evidence shows that he could see and hear, that he had been in the crew for a number of days, that he knew the exact method and manner of doing the work, that he knew that trees were being cut down from time to time, and that his employment required him to go from place to place and that his employment did not permit him to be stationary any length of time at any given point. The condition that existed one moment would be immediately changed, and any danger that arose, grew out of the very nature of the work being done and Ezell McWilliams was fully acquainted with that fact. It was his duty to use due diligence to look out for his own safety. Whatever danger there was connected with his employment grew out of the changing condition of the work as it progresses and was an incident to the work being done and Ezell McWilliams assumed the risk of whatever danger there was incident to his employment.
An exception to the rule requiring the employer to make safe the place where his employees are at work is said to exist where the condition of the place is constantly changing as the work progresses.
18 R.C.L. 595, par. 96; 3 Labatt (2 Ed.), 1177; Cytrone v. O'Rourke Engineering Construction Co., 80 N.E. 1092; Cybur Lbr. Co. v. Erkhart, 79 So. 235, 118 Miss. 401; International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413; Railroad Co. v. Williams, 96 Miss. 373, 53 So. 619.
We submit that the work of appellant's intestate, Ezell McWilliams, was not complex. It cannot be said, in the opinion of counsel for appellees, that the picking up of brush out in the open woods and carrying it and placing it in piles, is in any way complex.
The 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, such rules being only required where, in addition to the place being dangerous, the work of the servants is complex, and the conditions which may arise are uncertain and obscure. Where there are no complexities and where the danger is manifest, no rules are required.
Tatum v. Crabtree, 130 Miss. 426, 94 So. 449; Brown v. Coley, 168 Miss. 778, 152 So. 61; 18 R.C.L. 570, par. 78; G.M. N.R.R. Co. v. Brown, 143 Miss. 898, 108 So. 503.
The appellee, Doullut Ewin, Inc., under the law, was not under any non-delegable duty to promulgate rules and to give plaintiff's intestate, Ezell McWilliams, warning of the felling of the tree in question.
39 C.J. 490, par. 603; Chesapeake, etc., R. Co. v. Hennessey, 96 Fed. 713, 38 C.C.A. 307; Graham v. Detroit, etc., R. Co., 151 Mich. 629, 115 N.W. 993, 25 L.R.A. (N.S.) 326; Mercantile Trust Co. v. Pittsburgh, etc., R. Co., 115 Fed. 475, 53 C.C.A. 209.
The employees who sawed down the tree in question were the fellow servants of appellant's intestate, Ezell McWilliams. Therefore, the failure to give the warning as alleged in the declaration was the act of a fellow servant, for which Doullut Ewin is not liable.
Hercules Powder Co. v. Hammock, 145 Miss. 304, 110 So. 676; McMaster v. I.C.R.R. Co., 65 Miss. 264, 4 So. 59; Nelton v. E.E. Jackson Lbr. Co., 133 Ala. 580, 31 So. 848.
Argued orally by E.F. Coleman, for appellant, and by T.W. Davis, Sr. and Jr., for appellees.
This action was brought in the circuit court of Lamar county by appellant for the wrongful death of Ezell McWilliams; the suit was by appellant, as administratrix of his estate, against appellees. At the conclusion of the trial, the court, on appellees' motion, directed a verdict and judgment in their favor. From that judgment this appeal is prosecuted.
On the first of April, 1937, the appellee Doullut Ewin, Inc., was engaged by contract in the construction of a public highway from the town of Purvis to the city of Hattiesburg in this state. The right of way for the highway was 100 feet wide. It had to be cleared of all trees, brush, and other debris. Appellee employed a large number of men to clear the right of way. They were divided into crews consisting of from 12 to 15, each crew was under the direct supervision and control of a foreman whose duty it was to see that the work was properly done, and to that end supervise and control the work. Each crew was divided so that some would be sawing down the trees standing on the right of way, while others would be chopping the trees already sawed down into lengths, and others would be piling up and burning the brush and other debris. At the time of his death McWilliams was working with one of these crews under the direct control of appellee O'Neal as foreman. He had been selected, and it was his duty, to pick up and pile the brush and debris for burning, and while so engaged a tree was sawed down by other members of his crew which fell upon him and killed him.
The contractor had established a rule for the protection of the men by requiring that warning be given when a tree was about to fall, so that the workers in its reach could get out of the way. One or the other of the men sawing down the tree was required to cry "timber" or "tree falling." According to the evidence for appellant no warning was given when the tree which killed McWilliams was felled. It was charged in the declaration that the contractor promulgated this rule so that the men working in the crew would have an opportunity to seek a place of safety; that McWilliams relied on this rule being complied with; and that at the time of the felling of the tree he was busily engaged about his duties and oblivious of the danger. The evidence tended to sustain these allegations.
There was direct evidence on behalf of appellees that a warning was given, while on behalf of appellant several witnesses testified that they were from 20 to 100 feet of where the tree was being felled and if any warning was given by the sawyers they did not hear it, and if it had been given they would have heard it. Appellees contend that this evidence was negative and for that reason not sufficient to make an issue for the jury, as against the positive testimony that the warning was given. Testimony that a fact did not occur, given by witnesses so situated that in the ordinary course of events they would have heard or seen the fact had it occurred, is sufficient to warrant a jury in finding that the fact did not occur. 1 Wigmore on Evidence (2 Ed.), section 664; 23 C.J. 40; Yazoo R.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Gulf R.R. Co. v. Carlson, 137 Miss. 613, 102 So. 168; Grantham v. Gulf R.R. Co., 138 Miss. 360, 103 So. 131; Gulf R.R. Co. v. Hudson, 142 Miss. 542, 107 So. 369; Columbus R.R. Co. v. Lee, 149 Miss. 543, 115 So. 782. We are of the opinion that it was an issue for the jury as to whether or not the warning was given.
It is sought to justify the judgment upon the ground that the failure of the sawyers to give the warning was the negligence of fellow servants, for which appellees are not liable. That contention is based upon a confusion of the fellow servant rule and the safe place to work rule. Whenever the master's work is complex and dangerous, he should safeguard his servants by the adoption of approved methods and the promulgation of rules and regulations for the safety of his employees, and he does not discharge his duty by the mere promulgation of the rules for the guidance of his servants — he is bound to see that such rules are enforced. This cannot be delegated so as to relieve the master. The negligence of a delegate or representative is deemed the failure of the master. Upon such rules, when necessary, and upon their enforcement, depends in a large measure the character of the place to work — the safety of the place. Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; Ross v. Louisville R.R. Co., 178 Miss. 69, 172 So. 752; Edwards v. Lumber Co., 113 Miss. 378, 74 So. 284; Yazoo R.R. Co. v. Smith, 150 Miss. 882, 117 So. 339; McLemore v. Rogers, 169 Miss. 650, 152 So. 883; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764, 766; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; 18 R.C.L., p. 573, section 80.
In the Eagle Cotton Oil Case the court used this language: "However, danger does not create liability, but the failure of the master to exercise ordinary or reasonable care to protect his servants from the dangers necessarily incident to their employment does create liability, and we think that under the facts here in evidence it was the province of the jury to say whether or not, in adopting a plan or method of performing the work, and in providing a safe place to work, the appellant exercised reasonable care." The fellow servant rule does not come into play where the dangers are manifest and in the very nature of the work are necessarily recurring. Such dangers are a part of the surroundings and place of work. The master is required to use reasonable care to guard against them by warnings, guards, or otherwise. Here the felling of the trees was constantly recurring, probably many times during the day — it was a necessary part of the work and was dangerous to those in reach; it constituted a part of the method and place of work. In order to make the place reasonably safe it was the duty of the master by warnings or otherwise to guard against the danger of the falling trees. That duty was nondelegable, therefore the failure of the fellow servant to carry it out was a failure of the master.
To require such rules, however, the work must be "complex and dangerous." It is argued that the work was not complex; that all McWilliams had to do was look out for himself when a tree began to fall. The fault with that position is that whenever a tree was being felled the minds of the crew not engaged in felling the tree would necessarily be directed away from their own work. Often they would be a considerable distance from the tree. That fact might make it difficult for the servant to know when the tree "pitched to fall." We think the dangers and complexities of the situation were such as to require warnings.
Reversed and remanded.