Opinion
No. 36515.
October 6, 1947.
1. NEGLIGENCE.
Questions of negligence and contributory negligence are generally for the jury.
2. TRIAL.
Before granting a peremptory instruction in favor of defendant, trial court should assume as true every fact which the testimony reasonably tends to establish in favor of plaintiff as well as the reasonable inferences to be drawn therefrom.
3. MASTER AND SERVANT.
Whether employer exercised reasonable care to furnish a reasonably safe place for night watchman to perform duties of his employment was a question for jury in action for personal injuries sustained by night watchman in fall into grease pit in garage at which he was employed.
APPEAL from the circuit court of Washington county. HON. S.F. DAVIS, J.
Creekmore Creekmore, of Jackson, and Ernest Kellner, of Greenville, for appellant.
Defendant was guilty of negligence in failing to furnish plaintiff a reasonably safe place in which to work.
Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379; Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Scott-Burr Stores Corporation v. Morrow, 182 Miss. 743, 180 So. 741; Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Brooks v. DeSoto Oil Co., 100 Miss. 849, 57 So. 228; City of Natchez v. Lewis, 90 Miss. 310, So. 471.
Custom or usage is not a defense in this case.
Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Texas R. Co. v. Gehymer, 189 U.S. 468, 47 L.Ed. 905; Dunagan v. Appalachian Power Co., 33 F.2d 876, 68 A.L.R. 1393; Fairfield v. Bickler, 195 Mo. App. 45, 190 S.W. 32; Southern R. Co. v. Miller, 267 F. 376; 39 C.J., Master and Servant, Sec. 583.
The evidence and undisputed testimony was enough to authorize the trial court to submit the question of negligence to the jury.
Code of 1942, Sec. 1455.
It is well settled that a premptory instruction should be given only when all the facts in evidence being taken as absolutely true and every just inference from them has failed to maintain the issue.
Whitney v. Cook, 53 Miss. 551; Alabama Great Southern R. Co. v. Daniel, 108 Miss. 358, 66 So. 730, 733; New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770.
Ben Wilkes, of Greenville, for appellees.
The trial judge did not err in granting a peremptory instruction for the defendants. Maintaining the open grease pit was not negligence per se since it was the same kind in general use by careful and prudent people in similar business throughout the country. The rule is established practically without dissent that the master is not liable where he observes and follows the usual and customary method or system generally employed by careful and prudent men engaged in the same business.
Hammontree v. Cobb Const. Co., 168 Miss. 844, 852, 152 So. 279, 281; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Mobile O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98.
The evidence shows that the grease pit was sufficiently lighted. Interpreting the testimony in the light most favorable to the plaintiff we find that the two lights nearest the grease pit into which he fell were out of order and not burning, but that there was plenty of light to see the pit, although not the bottom of the pit. After all, this Court is interested in whether there was sufficient light to see the pit, not which lights were burning and which were not burning. Even if the two lights nearest the pit were out of order, if there was still sufficient light to see the pit, the defendants have performed their duty.
The master is not an insurer of his servant's safety; his duty is to furnish his servant with a reasonably safe place to work, and failure to anticipate remote possibilities does not constitute negligence.
Aponaug Mfg. Co. v. Hammond, 185 Miss. 198, 187 So. 227; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; City of Hazlehurst v. Matthews, 180 Miss. 42, 176 So. 384; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182; Columbus G.R. Co. v. Coleman, supra; Hooks v. Mills et al., 101 Miss. 91, 57 So. 545; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Louisiana Oil Co. v. Davis, 172 Miss. 126, 158 So. 792; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Mobile O.R. Co. v. Clay, supra; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Shuptrine et al. v. Herron, 182 Miss. 315, 180 So. 620; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9.
The master is not required to furnish his servant the newest, best and safest places to work.
Eagle Cotton Oil Co. v. Sollie, supra; Mitchell v. Brooks, supra; Morgan Hill Paving Co. v. Morris, supra; Seifferman v. Leach, supra; Vehicle Woodstock Co. v. Bowles supra.
The master owes his mature servant no duty to warn him of obvious dangers.
Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Seifferman v. Leach, supra.
Even if the evidence is conflicting as to whether or not the pit was sufficiently lighted, still the case should not have been submitted to the jury on this point for it was plaintiff's duty, as watchman, to keep the building lighted. If a servant is injured and this injury results from his failure to perform his duties, his negligence cannot be attributed to the master.
Eagle Cotton Co. v. Sollie, supra; Edward Hines Lumber Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Hegwood v. J.J. Newman Lumber Co., 132 Miss. 487, 96 So. 695; Wade-Stevens Lumber Co. v. Addy, 187 Miss. 851, 194 So. 303; Waterman-Fouke Lumber Co. et al. v. Miles, 135 Miss. 146, 99 So. 759; Wilkie v. West Const. Co. of Tennessee, 196 Miss. 233, 16 So.2d 154.
Plaintiff was a mature and experienced man and knew the danger involved. The law of this state makes a careful distinction between injuries to mature and experienced men such as this plaintiff and injuries to youthful and inexperienced persons.
Argued orally by Wade H. Creekmore, for appellant.
The appellant, J.W. Davidson, was employed as a night watchman at the storage place, or garage, of the appellees, J.L. McIntyre and others, doing business as a common carrier under the firm name of Delta Coaches. The defendants constructed and maintained in a very large room, about sixty feet square, two or three grease pits, where its motor buses were serviced, at Greenville, and it was shown that the plaintiff fell into one of these pits while about the duties of his employment, and was injured. The pit was about twenty-four feet in length, about two or three feet in width, and about four or five in depth, and was constructed and maintained in the usual and customary manner for using such pits in other like places of business. But the complaint is that the failure of the defendants to have the room properly lighted was a contributing factor to the accident. The trial court granted a peremptory instruction in favor of the defendants, from which action the plaintiff appealed.
The question involved is, of course, whether or not the defendants exercised reasonable care to furnish the plaintiff a reasonably safe place in which to perform the duties of his employment. The proof disclosed that the accident occurred almost immediately after the plaintiff entered upon his duties on that particular evening. There were one or more lights burning at the time; but the proof shows that one of the light bulbs near the pit had burned out, and that the socket where another light should have been was out of repair. It was the plaintiff's duty to turn on the other lights about the building and premises, and he was about the business of performing this duty when, in a moment of temporary forgetfulness, he fell into this grease pit.
It would serve no good purpose to fully discuss the testimony, since the case is to be reversed for a new trial, but we shall merely state that while we are of the opinion that it is a very close case on the facts, we have concluded that since questions of negligence and contributory negligence are generally for the determination of the jury, and in view of the fact that before granting a peremptory instruction the trial court should assume as true every fact which the testimony reasonably tends to establish in favor of the plaintiff, as well as the reasonable inferences to be drawn therefrom, the case should be reversed and remanded for a new trial on the issue of fact as to whether or not, under all the circumstances, the defendants had, in fact, exercised reasonable care to furnish the plaintiff a reasonably safeplace in which to work.
Reversed and remanded.