Summary
In E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350, the court announced that the greater danger calls for the greater degree of care which must be taken by the master in furnishing instrumentalities with which to work.
Summary of this case from Gulf, M. N.R. Co. v. KellyOpinion
No. 32113.
February 24, 1936. Suggestion of Error Overruled, April 6, 1936.
1. MASTER AND SERVANT.
Degree of care required of employer to furnish instrumentalities which will render employment reasonably safe must be commensurate with known dangers.
2. MASTER AND SERVANT.
Where evidence disclosed that mule was ungovernable and dangerous to shoe and that specially constructed stall was necessary to render shoeing reasonably safe, employer had duty to furnish such stall.
3. MASTER AND SERVANT.
Employer may not delegate duty to use reasonable care to furnish reasonably safe appliances for particular work, but employer may delegate to employee construction of appropriate safety appliances when employee is furnished with necessary materials by employer.
4. MASTER AND SERVANT.
When employee accepts delegation of duty to construct safety device and necessary materials have been furnished by employer, employee's failure to construct appliance properly cannot be charged against employer.
5. MASTER AND SERVANT.
In action for injury sustained by employee when kicked by employer's mule which employee was shoeing, wherein employer contended that employee was offered enough lumber to build special stall for mule, evidence held insufficient to show that employee accepted delegation of duty to construct stall, and hence employee could recover, notwithstanding stall was not constructed.
6. MASTER AND SERVANT.
Where employer seeks to avoid liability for injury to employee on ground that employee accepted delegation of duty to construct safety appliance, employer has burden to show that employee contracted to construct such appliance.
7. MASTER AND SERVANT.
Employer, to avoid liability for injury to employee on ground that employee accepted delegation of duty to construct safety appliance, must show that negotiations had passed beyond permissive stage.
8. MASTER AND SERVANT.
In action by employee to recover for injury sustained when he was kicked by mule which he was shoeing, evidence held insufficient to show that mutual understanding existed between employee and employer that employee would construct safety appliance for shoeing mule.
9. MASTER AND SERVANT.
Where employer seeks to avoid liability to employee for injury on ground that employee accepted delegation of duty to construct safety appliance, acceptance of duty by employee should be proved by express agreement.
10. APPEAL AND ERROR.
Reviewing court will refuse to decide question raised on appeal, unless question is fully argued by appellant with citation of authorities.
11. APPEAL AND ERROR.
Point not argued in briefs by appellant are waived.
APPEAL from circuit court of Jones county. HON.W.J. PACK, Judge.
Welch Cooper, of Laurel, for appellants.
The record shows without dispute that the appellee and his helper asked for a brake. It is undisputed that the general manager told them they might build one. Whitaker, the superintendent, told them the same. Brannon, the machinist in the shop, told them the same. This, according to appellee, was a month before the accident. The testimony shows that a blacksmith could build one. The materials were available. The structure was a simple one. Notwithstanding this, appellee neglected and failed to build the structure.
Hegwood v. Newman Lbr. Co., 132 Miss. 487, 96 So. 695.
Appellee was paid by the appellant company. His time was theirs. He was an experienced blacksmith. He had a helper who was subject to his orders and whose duty it was to assist. His task was simple and inexpensive. Any rule of law, we submit, which would permit a recovery for a failure to have a brake would certainly be inequitable and would certainly have not one single element of natural justice.
But it will be urged that the duty to supply the brake is nondelegable duty of the master and consequently there was negligence. But this rule has no application here for the reason that the person to whom the authority was granted to construct the brake is the person who is suing.
Texas Company v. Mills, 171 Miss. 231, 156 So. 866; Goodyear Co. v. Clark, 163 Miss. 661, 142 So. 443.
The general rule is that the master is not required to furnish the newest, best and safest machinery, appliances, and places to work, but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view.
39 C.J. 332 and 429; Vehicle Woodstock Co. v. Bowles, 128 So. 98, 158 Miss. 346; Hatter v. I.C.R. Co., 69 Miss. 642, 13 So. 827; Kent v. Yazoo M.V.R. Co., 77 Miss. 499, 27 So. 620, 78 Am. St. Rep. 534; Jones v. Y. M.V.R. Co., 90 Miss. 547, 43 So. 813.
Appellee deliberately elected to use one method of shoeing the mule and there was another and safer method.
Ovett Land Lbr. Co. v. Adams, 69 So. 499, 109 Miss. 740; Rose v. Pace, 109 So. 861, 144 Miss. 375; Anderson-Tully Co. v. Goodin, 163 So. 536.
Getting kicked or hurt by an animal is a danger incident to, or inherent in, the business of shoeing horses. It is one that the employee knows is there and assumes. Legally speaking, it is an ordinary risk of the employment.
Anderson-Tully Co. v. Goodin, 163 So. 536.
The full duty is performed when an appliance in general use is supplied.
Vehicle v. Bowles, 128 So. 98, 158 Miss. 346.
Servant in charge of details of work should exercise ordinary diligence in looking out for his own safety and where evidence shows servant did not do so, master is entitled to directed verdict.
F.B. Collins, of Laurel, for appellee.
The care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect. The greater the risk or danger, the greater must be the care.
As to the degree and amount of care required it all depends upon the circumstances, and this is properly a question for the jury.
29 Cyc. 428; Grand Trunk Ry. Co. of Canada v. Ives, 144 U.S. 408, 12 Sup. Ct. Rep. 679, 36 U.S. (L.Ed.) 485; 45 C.J. 696.
The question of whether or not brakes were in common use and the additional question as to whether or not, under the particular facts and circumstances as testified to by the witnesses for the appellee and as admitted by some of the witnesses for the appellant, it was dangerous or hazardous to undertake to shoe these mules in question without the use of a brake, was a disputed question and therefore a question for the jury to determine.
The dangerous situation was not created by the neglect of Brogan, the appellee.
The master cannot relieve himself of responsibility by delegating this duty to someone else.
Edwards v. Haynes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Benton v. Finkbine Lbr. Co., 79 So. 346, 118 Miss. 558; Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916.
This court has held in the case of Central Lbr. Co. v. Porter, 103 So. 506, that it is negligence to furnish the servant with an unsafe animal or team with which to work.
Currie Currie, of Hattiesburg, for appellee.
This mule was, in the eye of the law, an equipment, machine or appliance put on the premises for use and used by the appellant, in its saw mill operations, and the law draws no distinction, so far as liability is concerned, between this dangerous mule and any other dangerous piece of machinery put on the saw mill premises for use in conducting the saw mill operations.
The verdict of the jury was an affirmative answer to that question that this mule was vicious, and that the appellee was injured because this mule was vicious, and that the appellant was liable.
Central Lbr. Co. v. Porter, 139 Miss. 66, 103 So. 506.
The appellee did not contract to build braces or brakes. He was never personally authorized by the appellant to build them. All of the necessary materials for building a brake or brace were never furnished. Lumber was not the only material necessary. The attorneys for the appellant say in their brief that the appellee would have been paid for his time and labor in building them. There was no provision in his contract of employment that he should build them.
Central Lbr. Co. v. Porter, 103 So. 506.
There is no escape for the appellant and ought not to be, because the appellant was repeatedly told that this mule was dangerous and vicious.
Farmer v. Cumberland Tel. Tel. Co., 38 So. 775.
It is the duty of the master to furnish the servant with teams reasonably safe for the purpose intended, and, where the master negligently fails to perform this duty, the servant does not assume the risk of his employment if he continues to use such teams at the request of the master.
Section 514, Code of 1930; Herbert v. Greenbaum, 248 Mass. 398, 143 N.E. 317.
The fact that the appellee also knew that the mule was vicious and dangerous and was liable and likely to kick him did not free the appellant from liability because under the statute the appellee did not assume the risk.
Argued orally by Ellis B. Cooper, for appellant, and Neill T. Currie, for appellee.
Appellant operates a large sawmill for the manufacture of hardwood lumber. In this operation appellant uses many mules. Appellee was employed by appellant as a mill blacksmith and horseshoer; it being the duty of appellee to keep all the mules properly shod. In attempting to shoe one of the mules, appellee was kicked by the animal and was severely and permanently injured.
There was sufficient testimony to support the following findings of fact by the jury: The offending animal was one of two mules which had been purchased and put upon the work about two months before the injury. Both these mules were wild, ungovernable, and more than ordinarily dangerous to those required to shoe them, and this fact was known to the general manager of appellant company. About a month before the injury, appellee went to the general manager and stated to him, in effect, that these two mules were too dangerous to be shod with reasonable safety without the use of a device known as a brace or brake, and, in a few days, appellee's helper went to the manager and made a statement to the like effect. The truth of these statements to the general manager is borne out by the testimony of appellee and others to the effect that it was not reasonably safe to shoe these two dangerous mules either by throwing them or by the use of a side line, and that this work could not safely be done except by the use of a brake or brace, which is a device somewhat like a stall and which is equipped also with leather straps and a windlass. This device is comparatively simple in construction and can be erected by two men in one day and at a cost in materials of about fifteen dollars. Such a device was in use at some of the other mills in the vicinity, but was not in general use throughout the country. This latter fact is of no help in the case, however, because there is no proof whether dangerous mules are generally employed, that is to say, at mills where these braces or brakes are not used.
When the matter was mentioned to the general manager by appellee, the manager made no response; but, when appellee's helper later went to the manager about it, the manager responded: "There is plenty of lumber down there and you can build a bathtub and give them a bath if you want to." This response was communicated to appellee by his said helper; and others in authority at the mill also stated to appellee and his helper that they could have anything on the millyard or thereabout which they might want to construct any sort of safety device desired. The permission to appellee and his helper was ample, but they did not avail of the permission, did not construct the brake or brace, and thereafter, in attempting to shoe one of these two mules without the use of any safety device, appellee was injured as stated.
Appellant has presented a persuasive argument that the employment of shoeing mules is inherently and unavoidably a dangerous business, and that a person who undertakes that employment assumes the risk of being kicked. And appellant calls attention to the fact that, although mules have been shod in instances beyond number, and for years upon years, no case can be found among all the reported decisions wherein any person has ever claimed compensation by way of damages for the kick of a mule while being shod. If this were a case, as ordinarily, where the blacksmith has his own business and his own shop and furnishes his own equipment, or if it were a case where the animal was not known to the master to be extraordinarily dangerous, the argument made by appellant would be well taken, of course.
But this case, as we see it, falls within the established principle that, the greater the known danger, the greater is the degree of care which must be taken by the master to furnish the instrumentalities which will render the doing of the work reasonably safe; and, since there is sufficient testimony to support the finding of the jury that a device such as mentioned is the only reasonably safe means or method to be used in shoeing extraordinarily dangerous mules, and since these two mules were of that character to the previous knowledge of the master, it follows that it was the duty of the master to furnish the said device.
The close point in the case is upon the question whether the conversations or negotiations between the master and the servant in regard to the safety device did, or did not, relieve the master and place that responsibility upon the servant. While it is true, as a general rule, that the master may not delegate the duty to use reasonable care to furnish reasonably safe appliances for the particular work to be done, it is also true that the master may delegate to the servant the erection or construction of the appropriate safety appliances, when the servant is furnished the necessary materials by the master. And, when the delegation has been accepted by the servant, and the necessary materials have been furnished by the master, any failure by the servant to construct the appliance or to construct it properly cannot be charged against the master, because then the proximate cause is not the negligence of the master but solely that of the servant. 39 C.J., pp. 324-326, and cases cited in the notes; and see Edward Hines Lumber Co. v. Dickinson, 155 Miss. 674, 681, 125 So. 93.
But there are two difficulties as obstacles against the application of that principle in this case. First, the master did not offer to furnish anything for the making of the brake except lumber and other things on the yard or around the mill, while the evidence shows that leather straps and a windlass were also necessary. But, leaving aside that feature, the evidence is not sufficient to show that the delegation was accepted by the servant. In such a case there must be enough to disclose that the servant has contracted to construct the safety appliance, or at least enough that the jury may safely say out of all the facts and circumstances in the case, Hegwood v. J.J. Newman Lumber Co., 132 Miss. 487, 96 So. 695, that such was the mutual understanding between the master and servant, and the burden to show this is upon the master.
The negotiations must have passed beyond the permissive stage, that is to say, beyond the state where the master has merely given permission to the servant; and here, we believe, there was not sufficient in the present case to justify the jury in concluding that the negotiations in respect to the construction of the brake had ever reached that point where it could be dependably said that there was an acceptance by the servant or a mutual understanding that the servant would and should construct the safety appliance mentioned. There is enough here that the master may have so understood, but not enough that it was mutual; that is to say, that the servant also understood, or ought to have so understood, it. In applying the principle now being discussed, the understanding ought to be more than that which is left to supposition or assumption; it ought to be dependably definite either by express agreement or by a substantial equivalent thereof and which may be safely worked out of the definite implications of all the circumstances, as was done, for instance, in the Hegwood case, supra.
The declaration alleged that the general manager, Harris, ordered appellee on the occasion in question to shoe the mule in the manner in which it was attempted to be done, and the manager was accordingly joined as a defendant. The proof fails to show this alleged fact. Appellant Harris briefly mentions that the judgment should therefore be reversed as to him, since any fault on his part was one of omission only. No argument or authorities are submitted in support of this position. There is a want of harmony among the cases upon this particular subject (18 R.C.L., p. 780), and, the question being important, we ought to, and must, decline to decide it unless fully argued by appellant with citation of authorities (Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745), and in such a way as to provoke more than a passing response by the other side. No response was made by appellee to the point, and we must assume that appellee in not responding relied upon the rule that a point not argued in the briefs by appellant may be taken as waived. Bridges v. State, 154 Miss. 489, 122 So. 533; Rayl v. Thurman, 156 Miss. 8, 125 So. 912.
Affirmed.