Opinion
No. 33630.
March 27, 1939.
1. MASTER AND SERVANT.
In action against employer for injuries allegedly caused by defect in ladder from which employee fell, evidence held not to authorize verdict for employee on issues of negligence and of notice to employer.
2. MASTER AND SERVANT.
A master is not an insurer of the safety of instrumentality furnished to servant nor of the place of work, and is only required to use reasonable care to furnish reasonably safe place to work.
3. MASTER AND SERVANT.
A master is not required to furnish the newest, best, and safest machinery, appliances, and place to work, but only such as are reasonably safe.
4. MASTER AND SERVANT.
Actual or constructive notice of alleged defect in ladder from which employee fell is necessary in order to hold employer liable for resulting injuries.
5. MASTER AND SERVANT.
Where one employed to make place of work or instrumentalities safe negligently fails in his duty and is injured, his negligence cannot be attributed to the master.
6. MASTER AND SERVANT.
Where master furnishes equipment in common use by similar enterprises under similar conditions, he is not negligent although other equipment might be safer.
7. MASTER AND SERVANT.
Furnishing the ways, means, and appliances generally used by careful and prudent men long engaged in the same character of business is the measure of master's duty toward servants unless unsafeness thereof is so obvious that impartial persons could not well disagree upon the issue.
APPEAL from the circuit court of Lauderdale county; HON. A.G. BUSBY, Judge.
Jacobson Snow, of Meridian, for appellant.
Appellant was not negligent in furnishing the kind of appliance involved in this accident. It was the kind of appliance used generally by those operating the same character of mill and business as appellant was engaged in.
Master furnishing equipment in general use by the business of same kind under similar conditions is not negligent, though other equipment might be safer.
Vehicles Woodstock Co. v. Bowles, 128 So. 99, 158 Miss. 346; Hatter v. I.C.R.R., 69 Miss. 642, 13 So. 827; Kent v. Y. M.V. Ry. Co., 77 Miss. 499, 27 So. 620, 78 A.S.R. 534; Jones v. Y. M.V. Ry. Co., 90 Miss. 547, 43 So. 813; Hammontree v. Cobb Construction Co., 152 So. 279, 168 Miss. 844; Newell Construction Co. v. Flynt, 161 So. 298, 172 Miss. 719; Daniel v. Jackson Infirmary, 163 So. 387, 173 Miss. 821.
It has been consistently held by this court that the employer or master is not an insurer of the safety of his employee, and that where the employee seeking recovery does not show negligence on the part of the master proximately causing an injury complained of, no recovery can be had.
Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392; Meridian Grain Elevator Co. v. Jones, 169 So. 771, 176 Miss. 764.
The employer use reasonable care to furnish his employees a reasonably safe place in which to work, and the employee must use reasonable care for his own safety.
Meridian Grain Elevator Co. v. Jones, 169 So. 771, 176 Miss. 764; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65, 178 Miss. 791; Brown v. Coley, 152 So. 61, 168 Miss. 778; Gulf State Creosoting Co. v. White, 157 So. 86, 171 Miss. 127.
Master need not furnish newest, best and safest machinery or appliances and place for work, but need only furnish such as are reasonably safe.
Vehicles Woodstock Co. v. Bowles, 158 Miss. 346; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; C. G.R.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Kent v. Y. M.V.R.R., 27 So. 620, 77 Miss. 494, 78 A.S.R. 534; Seifferman v. Leach, 138 So. 563, 161 Miss. 853.
Duty of master to furnish employee with reasonably safe tool does not require inspection and examination of tool before each separate operation of particular tool.
Gulf States Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; Hope v. Natchez C. M.R. Co., 54 So. 369, 98 Miss. 822; A. V.R.R. v. White, 63 So. 345, 106 Miss. 141; City of Tupelo v. Payne, 168 So. 283, 176 Miss. 245.
Employee must show that employer had either actual or constructive notice of unsafe place causing injury.
G.M. N. v. Brown, 108 So. 503, 143 Miss. 890; M.C.R.R. Co. v. Bennett, 71 So. 310, 111 Miss. 163; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392.
Where master had furnished suitable place for work, suitable equipment, and reasonably safe appliances, then if servant is mature and experienced in character of work being done, obligation to take care of himself as to all obvious dangers is on servant, and duty of master exists only as to non-obvious dangers.
Brown v. Coley, 152 So. 61; Martin v. Beck, 171 So. 14, 177 Miss. 303; Favre v. L. N. Ry., 178 So. 327; Cobb Bros. Construction Co. v. Campbell, 170 So. 283, 176 Miss. 695; Anderson-Tully Co. v. Goodin, 163 So. 536, 174 Miss. 162.
There can be no doubt Sollie assented to and agreed to keep his eyes open and fix, or have fixed, whatever defects developed. He was the man employed to make repairs. The nailing on of strips was his job, the job of a carpenter or millwright. Mr. Morrison was interested in keeping the mill in ship-shape order, and in seeing that defects were repaired immediately. He knew Sollie was the repair man, so he went to him direct and as Sollie says, on as many as four occasions prior to the accident, told him to be on the watchout for defects. He had these instructions and respected Mr. Morrison's authority. Sollie continued his employment and continued to work as millwright and as carpenter under those instructions. He was doing that character of work when injured, and was doing that work after having been instructed by Mr. Morrison to keep a watchout for defects. These instructions could have meant no more than that Sollie was charged with the duty of watching the machinery and the plant generally with a view to keeping up with whatever defects might develop and repairing them. By stating he respected Mr. Morrison's authority he could have meant nothing, unless he meant as long as he remained in the company's employ he agreed to do whatever Mr. Morrison had instructed him to do.
Hooks v. Mills, 57 So. 545, 101 Miss. 91; E.L. Bruce Co. v. Brogan, 166 So. 350, 175 Miss. 208; Edward Hines Lbr. Co. v. Dickinson, 125 So. 92, 155 Miss. 674; Texas Co. v. Mills, 156 So. 866, 171 Miss. 231; Hegwood v. J.J. Newman Lbr. Co., 132 Miss. 487, 96 So. 695; Watermann-Fauke Lbr. Co., v. Miles, 99 So. 759, 135 Miss. 146.
We earnestly insist this is a case where the court should have granted the motion for a directed verdict, and should have granted an instruction to the jury to find for the defendant, and that since the trial court failed to direct a verdict this court will reverse this case and render judgment in favor of the appellant.
Reily Parker, of Meridian, for appellee.
If the evidence favorable to the plaintiff, accepted as true, makes out a case, the question should be submitted to the jury.
Anderson v. Cumberland Tel. Co., 38 So. 786.
In determinnig what is and what is not negligence, in cases of this kind the jury is usually the judge.
Collins Baking Co. v. Wicker, 142 So. 8.
The dangers incident to ladders and lever power, depends upon the general knowledge and experience of men, and therefore, it is the jury that must decide as to negligence or no negligence. This rule is further extended so as to apply to those cases where reasonable minds might differ as to whether or not the proven facts show negligence.
Evans v. Brown, 106 So. 281; Y. M.V.R.R. Co. v. Williams, 74 So. 835; Hercules Powder Co. v. Williamson, 110 So. 244.
It is only when the appellant is in position to contend that reasonable impartial men could not differ as to whether or not proper care had been used, that the defendant is entitled to a directed verdict. And under the testimony in this record, the appellant is not in position to defend such position.
City of Greenville v. Laury, 159 So. 121.
The trial judge should direct a verdict in favor of the defendant only when no inference of negligence can justly be drawn from the testimony, and the facts in this case not only justified the jury in finding that the ladder in question was dangerous and calculated to cause injury, but there were competent witnesses who testified positively that such was the case. It must be accepted as true that the cleat on this ladder was in fact insecure and unsafe and did break because of such unsafe condition. There was competent witnesses who testified that the manner of construction was unsafe and sure, in the course of time, to pull loose and be calculated to cause the exact injury sustained by the appellee. And if there is a dangerous condition which should be anticipated and corrected by the exercise of reasonable care, then a failure to exercise such care is negligence, rendering the master liable in damages for any injury proximately resulting therefrom.
City of Greenville v. Laury, 159 So. 121; C.T. T. Co. v. Woodham, 54 So. 890.
If the danger involved in this action could have been reasonably anticipated as likely to happen, then it was the duty of the appellant to take measures to correct such condition. And the testimony in this case shows that this danger was sure to happen if the ladder was continued in use, the only feature that was uncertain was when the injury would be received.
Hamilton Bros. v. Narciese, 158 So. 467; Gulf Refining Co. v. Williams, 185 So. 234; Ness Creameries v. Barthes, 155 So. 222.
We are unable to see how it could be held that the testimony in this case does not show that the ladder in question, due to the manner of its construction and the use to which it was put, would develop into an unsafe condition, and did become unsafe and was thereby caused to become detached and injure the appellee, and that this condition could have been and should have been anticipated by the appellant and avoided by the exercise of ordinary care. On the testimony in this record, the trial judge was not in error when he refused to direct a verdict for the appellant based upon the contention that no negligence was shown.
But it is contended that the appellant is not chargeable with negligence because this character of ladder was in common use by other mills engaged in a similar business. We deny that this principle of law has any application to the facts in this case, if the facts were undisputed; but the facts in this case would not support this contention if it was a proper case for its application.
Jefferson v. Dinkmann Lbr. Co., 148 So. 237; Eagle Cotton Oil Co. v. Pickett, 166 So. 764; Cotton Mills Product Co. v. Oliver, 121 So. 111.
If the appellant was guilty of negligence in not using ordinary care to avoid a danger that could and would have been anticipated and avoided by the exercise of ordinary care, then the fact that other like concerns have also been guilty of the same negligence will afford no comfort or protection in this case. Under the testimony in this record, the jury was warranted in finding that the appellant was guilty of negligence, and the appellant is afforded no protection under the rule which permits a master to use a machine or method in common use by others engaged in the same line of work. And to have granted the appellant a directed judgment would have been without support in the facts and contrary to the law.
The contention made by the appellant that it was entitled to a directed verdict based upon the theory that all the negligence concerning the safety of this ladder, was the negligence of the appellee, because it was the duty of the appellee to maintain this ladder in a safe condition and, therefore, the appellee can't complain about a condition that was due to his own negligence is not correct either on the evidence or the law.
From the testimony it will be seen that the appellee was a carpenter and a repair man, but he was not charged with the duty of keeping the mill in a safe condition, and the fact that an employee is a repair man does not deny him the right to recover for injuries sustained as a proximate result of an unsafe condition in the mill.
Planter's Oil Mill v. Wiley, 122 So. 365; Masonite Corp. v. Lochridge, 140 So. 223; Hooks v. Mills, 57 So. 545.
There is a difference in being a repair man and, therefore, at all times engaged in repair work and endeavoring to make or keep a place safe, and being "employed to make a place safe or to keep a place safe as a part of his employment." The character of working being done is not the test, it is the authority to keep the place safe and the duty imposed thereby.
E.L. Bruce Co. v. Brogan, 166 So. 350.
But if it be conceded, which we do not, that this defect was an ordinary minor defect such as the appellee did have authority to repair in the general operation of this mill, that it ceased to be such when those in authority over the appellee, the superintendent and the office, were fully informed of this defect and did not want it corrected.
The appellant is not in position to assert that the appellee should be denied the right to recover because he failed to exercise more wisdom or more care than they desired.
Argued orally by E.L. Snow, for appellant, and Marion Reily, for appellee.
The appellee, Sollie, brought this action against appellant, Eagle Cotton Oil Company, in the circuit court of Lauderdale county to recover damages for an injury received by him while in the service of the oil company, alleged to have been caused by the negligence of the company in failing to furnish him a reasonably safe instrumentality with which to do the work he was employed to do. There was a verdict and judgment in his favor in the sum of $5000, from which judgment the oil company prosecutes this appeal.
The only question in the case is whether the court should have granted the oil mill's request for a directed verdict. In considering that question every material fact necessary to support the judgment should be treated as proven, which the evidence substantially tends to prove.
Sollie was injured in July, 1936. At the time of his injury the oil mill was shut down for repairs and he was engaged in repair work, for the doing of which he was employed. He had been all his adult life a carpenter. In addition, he was a millwright. He testified that he was a master carpenter and a skilled millwright. He had been in the service of the oil company since 1930 — about six years. It was his duty to be on the lookout for defects in the ways, means, and appliances of the mill, and remedy such defects without being specifically directed to so do by anyone in authority. At the time of his injury he was engaged, with a negro helper named Mitchell, in repairing the elevator head in the "huller room." He fell from where he was at work about twenty feet to the concrete floor below, and was seriously injured. The character of his injury necessitated his being carried to a hospital, where he remained about three weeks. After he had sufficiently recovered, he went back to work for the oil company and so continued about two years before this suit was brought. Soon after his injury, on being questioned by some of the officers of the oil company as to what caused it, he stated that he did not know. In his testimony in the case, he admitted that he made such a statement but did so because he thought if he told the truth about it, it would jeopardize his job. The "huller room" has a concrete floor and the overhead structure is supported by piers about twenty feet in height, and ten inches square, on which rests at the top stringers about ten inches square and of the required length. The elevator head being repaired is in the top of the structure. There are three piers. About halfway between the concrete floor and the top of the piers is a walkway supported by braces attached to the piers, and at the top of the piers is another walkway. These walkways were used by servants engaged in repair work. As a means for reaching the walkways, one of the piers had been made into a ladder in this manner: Rungs had been nailed on it from near the concrete floor to the top stringer — a distance from eighteen to twenty feet. These rungs were something like an inch and a half thick, three inches wide, and three and a half feet long. They were nailed across the pier about sixteen inches apart and projected on each side from twelve to fourteen inches. They were not mortised into the pier but were nailed on with nails of appropriate sizes. The ladder so constructed had been in use for a good many years. Sollie testified that he had used it in making repairs during the entire period of his employment. He admitted that he used it the day before his injury, and saw no loose rungs. On the day of his injury he climbed the ladder to the second walkway to make repairs on the elevator head. His helper, Mitchell, was standing below on the concrete floor. He decided to come down to the floor for some purpose connected with the work. He testified that in making the descent he stepped on the top rung which gave away under his weight, throwing him to the concrete floor causing his injury. Mitchell, the only eyewitness, testified that no such occurrence took place, that the rung did not give away, but for some reason Sollie lost his balance and fell. Sollie admitted that in making the ascent the rung appeared to be secure and that on no other occasion had he noticed that any of the rungs were loose. Only a little while after his fall and injury, the scene was viewed by certain officers and employees of the oil company. They testified that there was no rung lying on the floor, nor any loose rung attached to the pier. Scott, the superintendent, testified that there had been a rung at the top of the pier which he removed several years before because it was in the way of an electric wire conduit, that there had been none there since, and none was needed. Sollie testified that the rungs of a ladder so constructed would have a tendency to become loose and give away from use; that the safer construction would be to mortise them into and nail them to the pier. He was supported by three other witnesses. Sollie admitted in effect, however, that the method used was not uncommon in mills. On the other hand, there was a great deal of evidence given by carpenters, architects, and millmen to the effect that the kind of ladder involved was in common use in mills and other establishments; that it was typical of the character of device used by them and was reasonably safe for its purposes.
The following are the controlling principles of law in this case; applied to the undisputed facts they lead to the conclusion that the oil company was entitled to a directed verdict: A master is neither an insurer of the safety of the instrumentality furnished his servant with which to work, nor of the place of his work. The master is only required to use reasonable care to furnish his employee a reasonably safe place to work. Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65.
A master is not required to furnish the newest, best, and safest machinery appliances and place to work, but only such as are reasonably safe. Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Kent v. Yazoo M.V. Railroad Co., 77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 534; Seifferman v. Leach, 161 Miss. 853, 138 So. 563.
There was no evidence that the oil company had either actual or constructive notice that the rung, which Sollie claims caused his fall, was loose and might give away. Sollie's testimony that it gave away under his weight was all there was on the subject. Actual or constructive notice was necessary in order to hold the oil company liable. Gulf M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Mississippi Central Railroad Co. v. Bennett, 111 Miss. 163, 71 So. 310; Dr. Pepper Bottling Co. v. Gordy, supra.
Sollie admitted that if the rung was defective, it was his duty to repair it. A person cannot profit by his own wrong. Where he is employed to make the place or instrumentalities safe, and negligently fails in his duty, such negligence cannot be attributed to the master. Edward Hines Lumber Co. v. Dickinson, 155 Miss. 674, 125 So. 93; E.L. Bruce Co. et al. v. Brogan, 175 Miss. 208, 166 So. 350; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Hegwood v. J.J. Newman Lumber Co., 132 Miss. 487, 96 So. 695; Waterman-Fouke Lumber Co. et al. v. Miles, 135 Miss. 146, 99 So. 759.
The argument that the evidence tended to show that the original construction of the ladder was negligent, that it was unsafe, at least to the extent that it made a question for the jury, is without merit. As hereinbefore stated, the evidence showed without any substantial conflict that the ladder involved was in common use in similar industrial plants and others and reasonably safe for its purposes. Where the master furnishes equipment in common use by enterprises of the same kind under similar conditions, he is not negligent although other equipment might be safer. Putting it in other language: Where the master furnishes the ways, means, and appliances generally used by careful and prudent men long engaged in the same character of business, that is the measure of his duty toward his servants unless the unsafeness in the ways, means, and appliances is so obvious that impartial persons could not well be in disagreement upon the issue. Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Vehicle Woodstock Co. v. Bowles, supra; Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 300, 743. In the latter case the court quoted with approval the following language: "`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, unless . . . the unreasonable unsafeness in the method or system is so evident that impartial persons could not well be in disagreement upon the issue.'"
Reversed and judgment here for appellant.