Opinion
No. 35110.
January 25, 1943. Suggestion of Error Overruled February 15, 1943.
1. MASTER AND SERVANT.
Store owner had duty of furnishing employees with a way or appliance for obtaining merchandise stored on top shelf which could not be reached by employee standing on the floor.
2. MASTER AND SERVANT.
In employee's action against store owner to recover for injuries resulting from a fall received when attempting to reach article of merchandise on top shelf, negligence of employer in failing to furnish way or appliance for obtaining such merchandise was for jury under evidence.
3. MASTER AND SERVANT.
Store owner letting employees select way of getting to top shelf to obtain merchandise stored thereon, and which could not be reached by one standing on the floor, failed to discharge its duty to furnish employee with a way or appliance for obtaining merchandise stored on such shelf.
4. MASTER AND SERVANT.
Where store owner, in employee's action for injuries sustained when falling in attempt to secure merchandise located on shelf which could not be reached from the floor, claimed that employee selected hazardous way of reaching shelf when another safe way by use of box was available, burden was on defendant to show that such a box was readily accessible to employee.
5. MASTER AND SERVANT.
Employee, injured in fall when attempting to reach merchandise stored on shelf which could not be reached from floor by usual method of standing on shelf under counter located in front of shelf on which merchandise was stored, did not "assume the risk" of injury in view of fact that method used by employee was known to store owner and not disapproved.
6. MASTER AND SERVANT.
Generally, where there are two ways in which work may be done, one safe or reasonably safe and the other hazardous, and servant knowingly adopts the hazardous method, he is held to have "assumed the risk" of so doing, and cannot recover for injuries sustained thereby.
7. MASTER AND SERVANT.
In order to constitute "assumption of risk" by servant through choice of a more dangerous method, it is not enough that he knew of a safer way, but the safer way must have been reasonably available to him.
8. MASTER AND SERVANT.
Where there are two ways in which servant may do a particular thing, one of which is dangerous and the other not so dangerous, both furnished by master with intention that servant may at his discretion use either, the servant does not "assume the risk" of injury by choosing the more hazardous method.
9. MASTER AND SERVANT.
In employee's action against owner of store to recover for injuries in fall when attempting to secure merchandise on shelf which could not be reached from floor, conflicts in testimony of plaintiff as to stepping on a small box in attempting to reach floor after obtaining merchandise, and not having stepped on box and not seeing one there until some time after fall, merely presented jury question.
10. MASTER AND SERVANT.
In employee's action against store owner to recover for injuries in fall when attempting to secure merchandise on top shelf by usual method, failure of employee to use box on which to stand would not excuse negligence of employer in failing to provide proper means where it did not appear either that employee knew box was there or that it was type of box on which she could safely stand.
11. TRIAL.
In action by employee to recover against store owner for injuries in fall, trial court properly permitted plaintiff to testify further after she had rested case and after motion to exclude evidence had been made.
ALEXANDER, McGEHEE, and GRIFFITH, JJ., dissenting.
APPEAL from the circuit court of Lowndes county, HON. JOHN C. STENNIS, Judge.
John F. Frierson, of Columbus, and Jackson, Young Friend, of Jackson, for appellant.
Appellee wholly failed to make out a case of negligence for which the appellant could be held liable under the law.
Negligence upon the part of the master is essential to his liability at common law for an injury sustained by the servant. The employer is not an insurer of the employee's safety.
The test is not danger but negligence, and negligence is the failure to take such reasonable care as is taken or should be taken by experienced and prudent men.
39 C.J. 259, Sec. 381; Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279.
It is elementary law that the master is not required to furnish the newest, safest or best methods of appliances, but need only furnish such as are reasonably safe.
Kent v. Yazoo M.V.R. Co., 77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 534; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506.
See also Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Wunderlich v. Walker, 186 Miss. 149, 189 So. 523; Fromme v. Borchman, 188 Miss. 535, 193 So. 811; Aponaug Mfg. Co. v. Hammond, 185 Miss. 198, 187 So. 227; J.W. Sanders Cotton Mill, Inc., v. Moody, 189 Miss. 284, 195 So. 683.
It is submitted that if appellant is held liable under such a record, negligence will no longer be the test, the common law rule will be abolished in Mississippi, and employers will become insurers of the safety of their employees, which we submit is not now and never has been the rule in Mississippi.
See Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506, and other cases heretofore cited in this brief.
It is an universal rule that there is no duty to warn or instruct an employee unless by reason of his youthfulness, inexperience or want of understanding he does not understand the dangers inherent in the work, or unless the work is inherently dangerous or complex.
Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Yazoo M.V.R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; 35 Am. Jur. 575, Sec. 145.
See Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764.
Compare Albert v. Doullut Ewin, 180 Miss. 626, 178 So. 312; Curry Turner Const. Co. v. Bryan, 184 Miss. 44, 185 So. 256; Jefferson v. Virginia-Carolina Chemical Co., 184 Miss. 23, 185 So. 230, 186 Miss. 861, 192 So. 306; Brown v. Coley, 168 Miss. 778, 152 So. 61; McLemore v. Rogers, 169 Miss. 650, 152 So. 883; Phillips v. Montgomery Ward Co. (C.C.A. 5, Miss.), 125 F.2d 248.
Actionable fault on the part of a defendant must be predicated on action or nonaction, 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.
Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
Appellee elected one of several methods that had been in use in said store for a number of years, and thereby assumed the risk of the method adopted.
Ovett Land Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Rose v. Pace, 144 Miss. 375, 109 So. 861; 39 C.J. 766, Sec. 966; 35 Am. Jur. 679, Sec. 250, 39 C.J. 766, Sec. 966.
Compare Stokes v. Adams-Newell Lumber Co., 151 Miss. 711, 118 So. 441.
See also Goodyear Yellow Pine Co. et al. v. Clark, 163 Miss. 661, 142 So. 443; Brown v. Coley, 168 Miss. 778, 152 So. 61; Martin v. Beck, 177 Miss. 303, 171 So. 14; Favre v. Louisville N.R. Co., 180 Miss. 843, 178 So. 327; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489.
The accident was unavoidable and no liability attaches.
Although a defendant may be negligent in the performance or omission of some duty owed to the person injured, no liability attaches unless such negligence was the proximate, rather than the remote, cause of the injury.
45 C.J. 901, Sec. 477; 45 C.J. 905, Sec. 480.
Compare Louisville Nashville R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, and Illinois Cent. R. Co. v. Wright, 135 Miss. 435, 100 So. 1.
The negligence complained of, and shown by the evidence, was not the proximate cause of the resulting injuries.
Wilson Co., Inc., v. Holmes, 180 Miss. 361, 177 So. 24; Supreme Instruments Corporation v. Lehr, 190 Miss. 600, 1 So.2d 242.
Appellee assumed the obvious dangers or risks of her employment.
At the time of her injuries appellee was in and about the performance of her duties at the place, in the manner and using the method she had used for a period of seventeen and one-half years. There was nothing out of the ordinary or unusual about the manner and method used in the performance of her duties. She was subjected to no extraordinary or unusual hazard, peril or danger, and we submit, with deference, that appellee assumed the risks or dangers of her employment and there can be no recovery from appellant.
See 39 C.J. 684, Sec. 882; 39 C.J. 704, Sec. 907.
At first blush it might appear that Section 513, Code of 1930, precluded the defense of assumption of risk in this case; however, to be operative, the injury or death must result in whole or in part from the negligence of the master or employer. We submit that a perusal of the record in this case will not disclose any negligence on the part of the appellant. Furthermore, this statute is in derogation of the common law and must be strictly construed. Hollman v. Bennett, 44 Miss. 322; McInnis v. State, 97 Miss. 280, 52 So. 634; Potter v. Fidelity, etc., Co., 101 Miss. 823, 58 So. 713. And it has never been held in Mississippi that the doctrine of assumption of risk has been abolished as to an obvious, visible, ordinary risk. Howd v. Mississippi Cent. R. Co., 50 Miss. 178; Austin v. Mobile O.R. Co., 134 Miss. 226, 99 So. 3; Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489.
Compare Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680.
See also Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Grossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Eastman, Gardiner Co. v. Caldwell, 177 Miss. 861, 172 So. 126; Meridian Laundry Co., Inc., et al. v. James, 190 Miss. 119, 195 So. 689; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Charles Weaver Co. v. Harding, 182 Miss. 345, 180 So. 825; Austin v. Mobile O.R. Co., 134 Miss. 226, 99 So. 3.
The court erred in granting appellee's motion to reopen, and allowing additional testimony as to how the accident happened.
It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused.
64 C.J. 160, Sec. 180.
We submit, with deference, that there was a clear abuse of discretion.
Compare Herron v. Southern Pacific Co., 283 U.S. 91, 75 L.Ed. 857; Southern Ry. Co. v. Hays, 78 Miss. 319, 28 So. 939; Carter v. Collins, 151 Miss. 1, 117 So. 336; Hoover v. Pierce, 27 Miss. 13; French v. Canton, A. N.R. Co., 74 Miss. 542, 21 So. 299; St. Louis-San Francisco Ry. Co. v. Thompson, 30 F.2d 586; Watkins v. Jackson E.R. Co., 149 Miss. 766, 115 So. 897.
W.L. Sims, of Columbus, for appellee.
Appellant's principal objection is that the appellee wholly failed to make out a case of negligence against the appellant.
The testimony shows that there were no ladders or other safe method of obtaining said articles from the top shelf or ledge, and the manner of obtaining same was to climb onto the counter with one foot and place the other foot in the bottom shelves against the wall. The appellant had knowledge of the manner and method used by the appellee in obtaining articles from the top shelf or ledge, and whether or not the method used was reasonably safe for the employee was simply a question for the jury, after hearing all the facts in the case. The appellant evidently had actual knowledge of the method used, as the manager of the store was on duty daily, saw and knew, or as a reasonably prudent man should have known, how said articles were obtained from the shelf or ledge.
There is no evidence showing that the method used by the appellant was in common use in other stores of like nature.
There is no evidence in this case that the appellant furnished the appellee with a reasonably safe place to perform her duties, and that the method used in this store was commonly used in other stores of similar character.
The unsafeness in the ways, means, and appliances used by the appellant in this case is so obvious that impartial persons could not well be in disagreement upon the issue.
Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506.
The evidence in this case shows that the appellant did nothing to protect the employees in their duty in displaying articles kept on the top shelf of said store, furnished no reasonably safe method of getting said articles down, and it seems so obvious that when the appellee was required to climb onto counters and the walls to obtain said articles, that it could be contended that that was a reasonably safe place to work and perform her duties.
The evidence in this case shows that the court did not err in refusing appellant's request for a directed verdict.
It is within the sound, judicial discretion of the trial judge to permit the plaintiff to reopen the case even after she had rested, and in doing so in this case it was not an abuse of his discretion nor to the prejudice of the appellant.
Argued orally by Forrest B. Jackson, for appellant.
The appellee, an employee of the appellant, was injured by a fall received by her while at work at the appellant's store. She brought this action for damages against it, alleging its failure to furnish her with a safe place to work, or rather with a way to, or appliance with which to, do the work. The appellant introduced no evidence except that of a physician which has no bearing on the appellee's fall or the cause thereof. It requested but was refused a directed verdict in its favor. The evidence discloses that the appellant is engaged in the retail mercantile business at Columbus, Mississippi, the appellee being one of its saleswomen. Along the wall on one side of one of the rooms in which the appellant's business is conducted are shelves, the top one being beyond the reach of one standing on the floor. Parallel with this wall and shelves is a counter with a shelf under it about two feet from the floor. One of the shelves along the wall projected several inches into the space between them and the counter. Merchandise was stored on these shelves, including the topmost, and it was the duty of the saleswomen when a purchaser desired an article on any of them, including the topmost, to get it for him. No appliance, method or way was provided by the appellant for reaching this top shelf. When the appellee was injured she was attempting to get a lamp shade from this top shelf for a customer who was there then and desired to purchase it. In order to do this she stepped with her right foot on the shelf under the counter, placed her left knee on the extension of the opposite shelf, caught hold of a higher shelf with her left hand and raised herself thereby high enough to reach the top shelf. She then caught the lamp shade with her right hand when her left hand slipped from the shelf to which she was holding, causing her to fall to the floor, severely and permanently injuring her back according to her and her physician's testimony.
The method here used by the appellee to obtain this lamp shade was that which the appellant's employees for several years had been accustomed to use with its knowledge and without its disapproval. She herself had been so accustomed and no injury had theretofore resulted therefrom. A former employee of the appellant, a witness for the appellee, also so testified, and in answer to this question:
"Q. That was a method, was commonly used? A. That method and there was what was known as a caramel box, just about this high and so wide. If you were so minded to get you a caramel box from the principal stock room and behind the counter or just wherever you find it, it was all right. I have turned stock baskets over.
"Q. You get the box? A. Just any way you could get it you got it."
The appellant's contentions in this connection are, first, that its duty to furnish its employees with a safe place in which, or appliance with which, to work was not here violated, and, second, that the appellee's testimony as to how she received her injury is such that a jury should not be permitted to act on it.
As to the Appellant's Negligence. It was the appellant's duty to furnish its employees with a way or appliance for obtaining merchandise stored on this top shelf, which, as hereinbefore stated, could not be reached by one standing on the floor. This duty it wholly failed to discharge. What it did was to let its employees select the way of getting to this shelf. Their usual way of getting to it was that here adopted by the appellee, this custom, as hereinbefore stated, was known to and not disapproved by the appellant, the equivalent of its having designated that as the or a way for obtaining access to this shelf, and whether or not this was a reasonably safe way for obtaining access to this shelf was for the determination of the jury. But it is said that the appellee could have obtained access to this shelf in another way that would have been perfectly safe, that is by getting a box and standing on it. Before the appellant can rightfully say that the appellee selected a hazardous way of reaching this shelf when another safe way was available to her, that is the use of a box to stand on, the burden is on it to show that such a box was readily accessible to her, as to which the evidence is silent. Moreover, had it appeared that the appellant had furnished a suitable box readily accessible to the appellee on which to stand and reach this shelf, she could not, in the light of what has been heretofore said as to the appellant's approval of the way here adopted by the appellee for reaching the shelf, be held to have assumed the risk attendant on the use of the way she adopted. It is true "the general rule is that, where there are two ways in which work may be done, one safe or reasonably safe and the other hazardous, and the servant knowingly adopts the hazardous method of doing the work, he is held to have assumed the risk of so doing and cannot recover for any injuries sustained thereby, and the general rule has been held applicable, although other employees of the master also adopt the dangerous method of doing the work.
"Limitation of this rule is that to constitute assumption of risk by the servant through choice of a more dangerous method it is not enough that he knew of a safer way, but the safer way must have been reasonably available to him. Further, where there are two ways in which a servant may do a particular thing, one of which is dangerous and the other not so dangerous, both however furnished by the master with the intention that the servant may at his discretion use either, the servant does not assume the risk of injury by choosing the more hazardous method of work." 39 C.J. 766-768.
This brings us to the conflicts in the appellee's testimony because of which the appellant says she is unworthy of belief. She first stated that when she attempted to reach the floor after obtaining the lamp shade she stepped on a small box she did not know was there, which turned and caused her to fall. She afterwards stated that this was not what occurred and that she did not step on a box and did not see one there or near thereto until sometime after she had fallen. When she fell she went to the appellant's rest room and laid down for a short while and then returned to the place of her accident and then for the first time saw a small box there. This conflict in her testimony would not have justified the court below in refusing to permit the jury to consider it, but simply presents a case for the jury's determination.
Returning again to the negligence vel non of the appellant and its claim that the appellee should have used a box on which to stand in reaching this shelf, it does not appear either that the appellee knew that this box was there when she attempted to reach the shelf, or that it was the type of box on which she could safely stand.
One other contention of the appellant is that the court below erred in permitting the appellee to testify further after she had rested her case and after a motion to exclude her evidence had been made. No error here appears; on the contrary, the court below would have abused its discretion had it not permitted the introduction of this evidence.
Affirmed.
Alexander, McGehee, and Griffith, JJ., dissenting.