Opinion
No. 33609.
March 20, 1939.
1. MASTER AND SERVANT.
The master's duty to furnish servant with a safe place to work is not absolute, but is simply to exercise reasonable care to furnish the servant with a place in which to work which is reasonably safe when the servant himself exercises reasonable care in its normal use.
2. MASTER AND SERVANT.
Where space set apart for welding purposes was not to be used as passageway by employees but an employee instead of going route theretofore pursued by him stepped over rail which had been welded onto metal disc used during welding process and lying on floor near rail and fell, evidence did not warrant inference that employer was negligent in not furnishing employee with safe place to work.
APPEAL from the circuit court of Yazoo county; HON. J.P. ALEXANDER, Judge.
Bozeman, Cameron Bozeman, of Meridian, and L.J. Wise, of Yazoo City, for appellant.
It is well settled that if the master provide a safe means or method for doing certain work, and the servant elects to use different and dangerous methods, he cannot recover, for the reason that such acts become the negligence of the servant, and not that of the master.
Brown v. Coley, 168 Miss. 778, 152 So. 61; Stokes v. Adams-Newell Co., 151 Miss. 711, 118 So. 441; Martin v. Beck, 177 Miss. 303, 171 So. 14.
The mere fact that an unusual way was occasionally used by employees for convenience, as a means of egress and ingress, will not convert it into a passage way, and where an employee sustains injuries while unnecessarily taking a dangerous route instead of a safe route, he cannot contend that it was the duty of the employer to keep the route free from obstructions.
39 C.J. 349; Ovett Co. v. Adams, 109 Miss. 790, 69 So. 499; Buckeye Co. v. Saffold, 125 Miss. 407, 87 So. 893; G.M. N.R.R. Co. v. Brown, 143 Miss. 890, 108 So. 467; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Eastman-Gardiner Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61; Hammontree v. Cobb, 168 Miss. 844, 152 So. 279; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Newell Constr. Co. v. Flynt, 172 Miss. 719, 161 So. 298; Anderson-Tulley Co. v. Goodin, 174 Miss. 163, 163 So. 536; Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Favre v. L. N.R.R. Co., 180 Miss. 843, 178 So. 327; Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721; Martin v. Beck, 177 Miss. 303, 171 So. 14.
Even if the court should conclude that Hammond was "required" to use this space occupied by the rail, we submit that plaintiff's case would fall, for the independent reason that there is no showing that the master was negligent in any way to cause any unsafe place.
Actionable fault on the part of a defendant must be predicated on action or non-action, accompanied by knowledge, actual or implied, of the facts which make the result of his conduct not only a probable result, but a result also which he should, in view of those facts, have reasonably anticipated.
Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Graham v. Brummett, 181 So. 721; Gulf Co. v. Williams, 185 So. 234.
A master can presume that the servant will exercise reasonable care, having in mind all of the conditions under which he has to perform his duties.
Brown v. Coley, 168 Miss. 778; Favre v. L. N.R.R., 180 Miss. 843, 178 So. 327; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Newell Constr. Co. v. Flynt, 172 Miss. 719, 161 So. 298.
It is, of course, elementary that, in order to fix liability on the master, the unsafeness of the place must be known to the master, either actually or constructively.
Hope v. Railroad Co., 98 Miss. 822, 54 So. 369; Lampton v. Adkins, 129 Miss. 660, 92 So. 638; G.M. N.R.R. Co. v. Brown, 143 Miss. 890, 108 So. 467; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; 39 C.J. 606; 18 R.C.L. 736; Deviny v. Planters Oil Mill, 33 So. 492; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.
Aside from plaintiff's recognition of the fact, under the "dual capacity" rule so well recognized in this state, Davis, when he was performing this manual labor, had none of the attributes of a master or a vice principal, but was only a servant, a fellow servant of the plaintiff.
Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Barron v. Bass, 167 Miss. 786, 150 So. 202; Harper v. Public Service Corp., 170 Miss. 39, 154 So. 266; Buckley v. United Gas Co., 176 Miss. 282, 168 So. 462.
Barbour Henry, of Yazoo City, for appellee.
The way traveled by the appellee was the usual and accustomed one, and there was no reason for him to depart therefrom after the welding of the rail had been completed. In other words, he was not departing from his safe way and voluntarily using an obviously unsafe one. It is manifest his duties required him to move about over the entire floor of the engine room to perform the numerous duties required of him. He was not confined to any limited area, but could use that part of the floor consistent with convenience, in view of the number of times he had to move about, and with all the parts of the room apparently safe. It is undisputed that he did not know the place that he usually walked over, and which he temporarily abandoned during the welding process, had been rendered unsafe by the act of the appellant's representative, Davis, its master mechanic and foreman and superior officer of the appellee.
Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721; Hardy v. Turner-Farber-Love Co., 136 Miss. 355.
The rule contended for by appellant is not an absolute and fixed one that a servant who happens to select a way which has been rendered unsafe by the master's negligence is precluded from recovery, because there was a way, even known to him which was absolutely safe. It is only when the way selected by him is manifestly unsafe. Again the rule is not applicable if any act of the master excuses or justifies of the less safe way. For instance, if the master acquiesces in the use of the less safe way, knowing the servant was using that way.
Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80; Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721.
The court will bear in mind that Davis undisputedly had completed the work and was rubbing his eyes, resting them from the glare of the torch. He admitted he used the gear blanks, but denied he left any of them on the floor. If they were left there as the jury has found the fact to be, it was the act of the master, through its vice-principal and representative, in charge of the premises. In other words, the master, himself, had rendered the place unsafe, and no question of notice, actual or constructive (by lapse of time) is involved.
The testimony of appellee that he momentarily forgot the rail was there is entirely consistent, and does not preclude recovery, as the gear blank was not readily noticeable, and the place was not obviously dangerous. The fact that momentarily the appellee was unmindful of the rail's presence, would at most constitute contributory negligence. In view of the fact that the presence of the rail was not the proximate cause of the fall, but the gear blank, the presence of which was unknown to appellee, then his forgetfulness was not the proximate cause of his injury. Aside from this with the undisputed fact in the record that apellee did not know the gear blank was there, it was at most a question for the jury to determine the contributory negligence of appellee. This was submitted to the jury by appellant's instruction and manifestly the jury applied it, by awarding $2000 for the serious permanent injury inflicted.
Stricklin v. Harvey, 179 So. 345; Railroad v. Slaughter, 92 Miss. 289; Lbr. Co. v. Fairchild, 155 Miss. 271; City of Meridian v. McBeth, 80 Miss. 485.
In Magers v. R.R. Co., 165 So. 416, this court held, "if the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw, nor should have foreseen, the extent of the harm or the manner in which it occurred should not prevent him from being liable.
Veney v. Samuels, 142 Miss. 476; Ragland v. Lbr. Co., 117 Miss. 602.
We respectfully submit that the case of Barron Motor Co. v. Bass, 167 Miss. 786, in which the opinion was written by Justice GRIFFITH is conclusive against the appellant. In the Barron case the plaintiff went to the welding room of the defendant which was in charge of a foreman, who was held by this court under facts identical with those in the case at bar to be a vice-principal, or representative of the master. A drawing knife had been placed on the welding table by the foreman, and the plaintiff while about his work at the table was injured when his hand came in contact with it. The court held the relation of fellow servant did not exist, and there had been a violation of the duty of the master to exercise reasonable care to keep the place where plaintiff was required to work in a reasonably safe condition. In other words, the master, through the act of its vice-principal, had rendered the place unsafe.
Curry Turner Construction Co. v. Bryan, 185 So. 256.
Argued orally by Ben H. Cameron, for appellant, and by J.F. Barbour, for appellee.
The appellee recovered a judgment against the appellant, his employer, for a personal injury alleged to have been caused him by the negligent failure of the appellant to furnish him with a safe place in which to work. One of the assignments of error is that the court below refused the appellant's request for a directed verdict.
The appellant owned and operated a textile manufacturing plant. The room of this plant, in which the appellee was at work when his injury occurred, is about thirty-six by forty feet in size, and below it is a boiler room, which is reached by a stairway at the northwest corner thereof extending down about seven feet. At the south end of this room is a bench on which are covered rollers. A short distance north of this bench is a burning down machine. To the west of this machine a short distance from the western wall of the room is an electric generator, and a short distance north of the burning down machine is a band machine. On the eastern side of the room is a large steam engine with a passageway between it and the band machine of several feet. North of the band machine and several feet from the engine are several shafts and pulleys, and north of them beyond the steam engine is a stairway leading into the basement below, which stairway is surrounded by a railing. Against the western wall of the room, several feet from the north wall thereof, is a bench or table about eight feet long on which machinery, when broken, is welded. About halfway between this welding bench and the stairway to the basement are two metal valves, a water valve, and a steam valve, which project about three feet above the floor, the water valve being opposite the north end of the welding bench and the steam valve opposite the southern end thereof. Welding of broken machinery was habitually and daily done on this welding bench, or, when the machinery was too large, on the floor between the welding bench and these two valves, a blow torch being used therefor. The appellee's duties required him at frequent short intervals to attend the covered rollers at the south end of the building, the burning down machine, the generator, and the boiler in the room below the engine room, to which the steps near the northwest corner of the engine room lead. About four o'clock in the afternoon a broken spinning rail, about eighteen feet long, was brought into the engine room and placed on the floor between the welding bench and the two metal valves diagonally to the welding bench so that it might be welded together. Davis, the appellant's master mechanic and superintendent, did this welding, consuming about two hours in so doing. In order to level the rail so that it could be properly welded and also to protect the floor from the welding torch, it was necessary to elevate this rail above the floor. This was done in the usual manner by placing under the rail iron discs of different sizes. After the welding of this rail had been completed, it was necessary for it to remain where it was in its then position for some time before being removed therefrom in order for the welding to become perfect.
The appellee knew of the presence of this spinning rail, and that it was being welded. While the welding was being done, he made his frequent short interval inspections of the machinery. When at the covered rollers in the south end of the room, he would go from there to the generator, from there back of the band machine, and through the space between that machine and the engine, and from there to the steps leading to the boiler room. So to do required a few more steps than to go from the generator along the west wall of the room and by the welding bench. Immediately after Davis finished welding this spinning rail, and while he and his helper were standing near it, the appellee, after inspecting the generator, instead of going the route he had theretofore pursued to the steps into the boiler room, he went along the west wall of the room and when he arrived at the spinning rail stepped over it onto one of the metal discs, which was lying on the floor near the rail, which caused him to slip and fall, his head striking the water valve. He says that he would have gone the other route, but forgot for the moment of the presence of this spinning rail, and of its being then welded. According to the evidence for the appellant, his injury did not occur in this way and was caused through his own negligence and not that of the appellant. This evidence, however, we will of course put on one side and not consider. According to the evidence for the appellant, this space between the two metal valves and the welding bench was set apart for welding purposes and was not to be used as a passageway by the appellant's employees. The appellee says that he did not himself use it as a passageway when welding was there being done, for two reasons: (1) Not to interfere with the workmen engaged in the welding, and (2) to avoid the intense heat of the welding torch. In his own language: "I wouldn't have wanted him to burn me up."
The appellee's complaint is that the presence of this spinning rail and the iron disc on the floor of the room in which he was required to work rendered it unsafe therefor, thereby violating the appellant's duty to furnish him with a safe place in which to work. "The duty of the master to furnish the servant with a safe place to work is not absolute, but it is simply to exercise reasonable care to furnish the servant with" a place in which to work that is reasonably safe (Hooks v. Mills et al., 101 Miss. 91, 57 So. 545, 546; Anderson v. McGrew, 154 Miss. 291, 122 So. 492; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277), when the servant himself exercises "reasonable care in its normal use." Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 301, 743; Favre v. Louisville N.R. Co., 180 Miss. 843, 178 So. 327; Seifferman v. Leach, 161 Miss. 853, 138 So. 563.
Tested by this rule it is clear that no inference of negligence on the part of the appellant can be here drawn. The appellee was provided with a perfectly safe way to go from the generator to the boiler room, which way he himself had been using. He knew that the welding was being done in the accustomed place therefor, and that he was not expected to use that place as a passageway when welding was being there done, but he says the reason that he went through the welding place was that he forgot that welding was then being there done. This may be true. Nevertheless, he did know of it before he stepped on the iron disc for he saw the rail when he arrived at it, and then the chance of stepping over it. He does say that there was some smoke near the rail, caused, he seems to say, by the welding process which prevented him from seeing the disc. Nevertheless, he did see the rail, and knew therefrom what was being done and that he should not be there. But this aside, for we are not considering whether the appellee was guilty of contributory negligence, the appellant had no reason to anticipate that the appellee would use the welding place for a passageway while welding was being there done. There was, of course, a possibility that he would do so, but the appellant is not guilty of negligence in not so anticipating. Seifferman v. Leach, supra. The appellee, on his direct examination, when testifying as a witness, said that this welding was being done in a place where he was required to work, but on cross-examination he made it clear that he did not use that place when welding was being done there, and, by clear inference therefrom, was not expected so to do. The appellant's request for a directed verdict should have been granted.
Reversed and judgment here for the appellant.