Summary
In Gulf Refining Co. v. Ferrell, 165 Miss. 296, 297, 147 So. 476, 478, an employee was set at the task of painting signs upon the surface of a concrete street adjoining his regular place of work.
Summary of this case from Lancaster v. LancasterOpinion
No. 30275.
April 17, 1933.
1. MASTER AND SERVANT.
Employer operating filling station owed its employee, painting "no park" sign on adjoining concrete street, duty of care to see that place was reasonably safe, and to give warning of approaching traffic.
2. MASTER AND SERVANT.
Master generally cannot be relieved of duty to use reasonable care to provide safe place for servant to work by shifting responsibility to fellow servant.
3. MASTER AND SERVANT.
Superintendent of filling station who directed employee of corporation operating station to paint "no park" sign on adjoining concrete street, but failed to give employee warning of approaching truck, held guilty of negligence, imputable to master, irrespective of whether superintendent was fellow servant.
4. MASTER AND SERVANT.
Negligence of superintendent of filling station in failing to give warning to employee painting "no park" sign on concrete street adjoining held concurring proximate cause of employee's injuries when struck by truck.
5. MASTER AND SERVANT.
Master is liable to servant for injuries in spite of concurring negligence of third person, if master's negligence in failing to provide reasonably safe working place or give warning contributes to injury.
6. RELEASE.
Instrument whereby employee, struck by truck, released truck driver's employer, held not to discharge his own employer from liability.
APPEAL from circuit court of Lauderdale county. HON. J.D. FATHEREE, J.
Dunn Snow, of Meridian, for appellant.
Under the laws of Mississippi, both by statute and by the common law, the driver of every automobile is required to keep it under constant and easy control and to anticipate the presence of other persons on and using the street.
Section 5569, Mississippi Code 1930.
By section 5571 the driver of every motor vehicle, upon approaching a crossing or intersecting highway is required to obey stop signals, if any, and proceed at a speed not greater than is reasonable and proper, having due regard to traffic then on such highway and the safety of the people.
Section 5571, Code of 1930.
The driver of an automobile must keep his machine constantly under control, he must continue on the alert for pedestrians and others using the streets and must anticipate their presence. To assume that the way is clear is not his right. It is his duty, and the great majority of city traffic regulations so prescribe, to slow down at the street intersections in order that possible accidents and collisions may be foreseen and averted.
Ulmer v. Pistole, 76 So. 522, 115 Miss. 485.
That another independent agent, acting on his own responsibility does something because one has done a particular thing, does not make such a one responsible for the act of the other. They are independent actors, and each is answerable for his own acts, because of the want of casual connection between the acts. Consecutive wrongs done by independent agents cannot be conjoined to increase or enlarge the responsibility of one of them.
L. N.R.R. Co. v. Daniels, 99 So. 434.
Where two distinct successive causes, unrelated in operation, to some extent contribute to an injury, it is settled that where there is an intervening and direct cause, a prior and remote cause cannot be made the basis of recovery of damages, if such prior cause did nothing more than furnish the condition or give rise to the occasion, by which the injury was made possible.
Gerrett v. L. N. Ry. Co., 71 So. 685; Fraser v. C.R.I. P., 1917F, L.R.A. 741; Klomp v. C., etc., R R. Co., 210 Ill. App. 375; Y. M.V.R.R. Co. v. Hullum, 80 So. 645; Drake v. Topeka R.R. Co., 153 P. 539.
In order to hold the appellant liable it must have been guilty of negligence.
L. N. Ry. Co. v. Daniel, 99 So. 434; A. V. Ry. v. White, 63 So. 345; McKinnon v. Braddock, 104 So. 154; Austin v. M. O.R.R. Co., 99 So. 3.
The doctrine of a reasonably safe place to work has no application to a place of this character, because there is no negligence connected therewith occasioned by the employer. Whatever of danger there was from vehicular travel by third person was an ordinary hazard incident to the character of the work to be performed, and, a hazard assumed by the employee.
Austin v. M. O.R., 99 So. 3.
The employer had a right to assume that third persons would use the streets with due regard to the right of others then in the streets and to assume there would be no violation of the law. The place where Ferrell was injured had nothing to do with his injury. There was no casual connection of any negligence on appellant's part and the injury.
Y. M.V.R.R. Co. v. Schragg, 36 So. 194; Raymond v. Western Union Telegraph Co., 91 So. 671.
The injury must be caused by the negligence of the master and not by some other act.
Tatum v. Crabtree, 94 So. 449; I.C. Ry. Co. v. Bishop, 25 So. 267.
If Tatum agreed for himself with appellee to watch for him, and Carlton's truck, through negligence of its driver, struck Ferrell, there was no negligence on appellant's part and the injury was still the result of the negligence of a third person.
Riola v. N.Y.C.R.R. Co., 89 N.Y.S. 947; Guest v. Edison Illuminating Co., 114 N.W. 226.
Where two men of equal grade are working together for the same master and in the furtherance of a common business, and one is injured by the negligent act of the other, the problem is simple as the courts are all in accord as to this. There is no liability.
N.O.J. G.N.R.R. Co. v. Hughes, 49 Miss. 258.
The differences in the grade or station of the employees of a common master, engaged in the furtherance of the general work, makes no difference. It matters not whether an employee be designated a laborer, a sub-foreman, a foreman, a section master, a boss or a superintendent, his acts in the performance of a delegable duty are the acts of a fellow servant and not of the master.
Lagrone v. M. O.R.R. Co., 7 So. 432.
When servants are employed and paid by the same master and their duties are such as to bring them into such a relation that the negligence of the one in doing his work may injure the other in the performance of his, then they are engaged in the same common business, and, being subject to the control of the same master, they are fellow-servant, within the generally accepted meaning of the rule, no matter how different the grades of services or compensation may be or how diverse or distinct their duties may be.
McMaster v. I.C.R.R. Co., 4 So. 58; Givens v. Southern Railway in Mississippi, 49 So. 180; Hercules Powder Co. v. Hammack, 110 So. 676; Petroleum Oil Corporation v. Bailey, 86 So. 644; Bradford Construction Co. v. Heflin, 42 So. 174; N.E.R.R. Co. v. Conroy, 44 L.Ed. 181; Martin v. A.T. S.F. Ry. Co., 41 L.Ed. 1051; Shugure v. Providence T. Co., 88 A. 616; Pagan v. Southern Ry. Co., 59 S.E. 32.
A master is liable for the negligence of a superior servant when the servant is engaged in the performance of some of the master's personal duties, but not otherwise; and it is the character of the work, rather than the rank of the servant that controls. A servant may act in the dual relation of vice-principal, representing the master, and as a co-servant with other employees.
Scott v. C. W. Ry., 85 N.W. 631; C.C.C. St. L. v. Foland, 91 N.E. 595; Graffon v. Town of Poland, 99 A. 14; Gallant v. Great Northern Paper Co., 95 A. 889; Small v. Allington Curtiss, 48 A. 178; Pasco v. Minn. Steel Mach. Co., 117 N.W. 479; C.C.C. St. L.R. Co. v. Foland, 92 N.E. 165; Ell v. W.P.P. Co., 48 N.W. 222; Baltimore Elev. Co. v. Mall, 5 A. 338; Enright v. Oliver Burr, 55 A. 277; McDonald v. Hoffman, 102 P. 673; Knutten v. May N.J. Tele. Co., 52 A. 565; Livingston v. Kodiac Packing Co., 37 P. 149; Leonard v. Mailory, 53 A. 778; Wood v. M. St. L.R.R. Co., 161 N.W. 674; Dwyer v. American Express Co., 52 N.W. 304; Haley, etc., v. Trices, Admr., 88 S.E. 314; Revolinski v. Manistee and N.E.R.R. Co., 152 N.W. 941; Gubenstein v. S. W. Eng. Corp., 91 N.E. 411.
Other instances of the existence of facts creating relation of fellow-servant are:
Kelly v. New Haven Steamboat Co., 30 A. 871; Southern Pacific Company v. McGill, 44 P. 302; Daves v. Southern Pac. Ry. Co., 32 P. 708; Noyes v. Wood, 36 P. 766; Langshore v. Simmington, 66 So. 85; Vestner v. North California Power Company, 110 P. 918; Messenger v. N.Y. Ry., 83 A. 621; N.O.J. G.N.R.R. Co. v. Hughes, 49 Miss. 259; Illinois Central Railroad Company v. Bishop, 25 So. 868; Millsaps v. L.N.O. T. Ry. Co., 13 So. 696; I.C.R.R. v. Harris, 29 So. 760.
The counsel for the plaintiff has argued before us that the defendant must be held responsible because the plaintiff had been directed by the foreman, under whose orders he was placed, to look north while he was on the car, and had received the foreman's assurance that he, the foreman, would warn him of the approach of danger, and that as the foreman failed to do so it was the failure of the defendant to do something which it was bound as a master to do in furtherance of the obligation it was under to see that the plaintiff had a reasonably safe place in which to perform his work. We do not perceive that the doctrine as to the duty of the master to furnish a safe place for the servant to work in has the slightest application to the facts of this case. The negligence of the section foreman in failing to note the approaching train and to give the proper warning so that the car might be taken from the track was not the neglect of the defendant in regard to the performance of any duty which as master it owed the plaintiff. If the car was rendered unsafe, it was not by reason of any lack of diligence on the part of the defendant in providing a proper car, but, the danger arose simply because a fellow servant of plaintiff failed to discharge his own duty in watching for the approach of a train from the south.
Martin v. A.T. S.F.R.R. Co., 41 L.Ed. 105; B. O.R.R. Co. v. Gouge, 149 U.S. 368; N.P.R.R. v. Humbly, 154 U.S. 349; N.P.R.R. v. Peterson, 162 U.S. 345; N.P.R.R. v. Charles, 162 U.S. 359.
The giving of warning of approaching danger by a foreman, to a gang of workmen, is a detail of the work of the master.
Ryan v. Third Avenue R.R. Co., 92 App. Div. 306, 96 N.Y.S. 1070; Riola v. N.Y.C. H.R.R. Co., 97 App. Div. 252, 89 N.Y.S. 945.
Although the superintendent is of a higher degree than the one injured he is still a servant, as to the detail and management of the work, and not the alter ego of the master, and his negligence in those respects is the negligence of a co-servant, for which the master is not responsible.
Loughlin v. State of N.Y., 105 N.Y. 159, 11 N.E. 371; Collee v. Norton, 126 N.Y. 1, 26 N.E. 905; Rex v. Pullman Palace Car Co., 43 A. 246; Knowles v. Churchill, 74 S.E. 766; Peterson v. N YN.H. H.R.R., 69 A. 502; McCauley v. N.Y.C. H.R.R., 97 N YS. 631; Mikalojczak v. North American Chemical Company, 88 N.W. 75; McCauley v. Michigan Central R.R. Co., 132 N.W. 513; Moses v. Sprague, Nugent Co., 106 N.E. 562; Jenkins v. Richmond, 18 S.E. 182; Argersinger v. Commonwealth Power Company, 129 N.W. 891; Schradin v. N.Y.C. H.R.R. Co., 109 N.Y.S. 438; Mesich v. Tamarack Mining Company, 151 N.W. 564; M. N.H.G. Corp. v. Haley, 173 Fed. 784; Larson v. Brooklyn Heights Railroad Co., 119 N YS. 545; Whittlesey v. N.Y., N.H. H.R. Co., 58 A. 460; Ocean Steamship Company v. Cheney, 12 S.E. 351; Guest v. Edison Illuminating Company, 114 N.W. 226; Moret v. South Baltimore Car Works, 58 A. 447; Herman v. PartGlakely Mill Co., 71 Fed. 853; Haskell Barker Car Co. v. Trzop, 123 N.E. 185; Sutter v. N.Y.C. E.R.R. Co., 79 N.Y.S. 1106; Anglin v. American Construction Trd. Co., 96 N.Y.S. 49; Luebke v. Chicago, etc., R.R., 23 N.W. 136; Biggers v. Catawba Power Co., 51 S.E. 883; Miller v. American Bridge Co., 68 A. 1109; Cox v. E. H. Co. et al., 112 N.Y.S. 443; Ferguson v. Glady Fork Lbr. Co., 78 S.E. 689; Grant v. Nihill, 210 P. 915.
Nothing can be deemed the proximate cause of an injury unless had it not happened the injury would not have occurred.
Illinois Central R. Co. v. Wright, 110 So. 1; Illinois Central R.R. Co. v. Bishop, 25 So. 867; Wilbourn v. Charleston Cooperage Company, 90 So. 9.
We have a case here where the place was entirely safe, provided the fellow servant performed his plain duty. On the contrary, it could only be unsafe, if he failed to perform his duty, in other words, a case where appellee's place of work is reasonably safe and he was injured alone through the negligence of his fellow servant.
Tatum v. Crabtree, 94 So. 449.
The proximate cause of the accident and injuries complained of was the act of Carlton and no act of negligence on the part of the defendant proximately caused or contributed thereto.
Crossett Lumber Co. v. Land, 84 So. 15; Meridian Light Railway Company v. Dennis, 100 So. 581.
The peremptory instruction requested by the defendants should have been granted for the reason all claims the appellee may have had on account of his injuries were settled and released by his settlement with Carlton.
When an employer has provided a servant to give warning of such dangers as may from time to time arise as the work progresses, he has done all the law requires.
Coast Ship Co. v. Yeager, 81 So. 797.
The appellant could not have been liable without Tatum being guilty of negligence, and the jury found Tatum was not guilty of negligence, therefore, judgment should have been entered in favor of both defendants.
Railroad v. Jopes, 142 U.S. 28, 35 L.Ed. 919; Doremus v. Root et al., 23 Wn. 710, 54 L.R.A. 640; Gulf C. S. Fe R. Co. v. James, 75 Tex. 12, 110 S.W. 744; Howard v. Jackson, 91 Ga. 319, 18 S.E. 132; Kinkler v. Junica, 84 Tex. 120, 19 S.E. 359; June v. Grimmett, 4 W. Va. 104; Westfield Gas Mill Co. v. Abernathy, 8 Ind. App. 75, 35 N.E. 399; Hayes Admx. v. Telephone Co., 218 Ill. 414, 2 L.R.A. (N.S.) 764; Stevick v. N.P.R.R. Co., 39 Wn. 506, 81 P. 1001; McGinnis v. Railroad Co., 9 L.R.A. (N.S.) 880.
Gilbert Cameron, of Meridian, for appellee.
We have the superintendent of the defendant sending the plaintiff into a dangerous place; it was incumbent on him and his master to safeguard him in that place, the only way to safeguard him was to warn him of impending danger or else barricade the street. The master owed him that duty; the duty of safety is always non-delegable; and the duty to watch out for him existed whether any agreement or promise was made at all.
Chatham v. Bryceland Lbr. Co., 139 La. 969, 72 So. 704.
It is sufficient that the acts of the master, under all the circumstances amount to an assurance that the place where he directs the servant to work is reasonably safe. Where the work is done in the presence of and under the immediate direction of the master or his representative, this is equivalent to an assurance that the servant may safely proceed with the work.
39 C.J. 831, secs. 1041, 1042; Mississippi Cotton Oil Co. v. Ellis, 72 Miss. 191.
It is elementary law that it is a nondelegable duty of the master to furnish the servant with a reasonable, safe place in which to work, and it is his further duty to maintain the place as a reasonably safe one.
Benton v. Finkbine Lbr. Co., 118 Miss. 558, 79 So. 346.
The furnishing of a safe place to work is a non-delegable duty of the master.
Y. M.V.R. Co. v. Smith, 150 Miss. 882.
The fundamental consideration in determining the liability of the master for the act of his managing servant is the nature and character of the power of control, direction, and superintendence with which the master has clothed the actor. "An increasingly large number of cases emphasizes this fact, or declares in terms that where the master confers upon another power to control, direct and superintend the persons who are engaged in the business, the director or superintendent, or whatever he may be termed, becomes the master's representative, for whose acts and omissions the master or employer is accountable. He is not a fellow-servant within the fellow-servant doctrine.
Gwin v. Carter, 158 Miss. 196.
The release cannot be distinguished from that reviewed by this court.
Waterman-Fauke Lbr. Co. v. Miles, 135 Miss. 146, 153.
In fact, two hundred sixty-five dollars for the injuries shown by this record would raise a presumption of fraud and overreaching so often condemned by this court.
Jones v. A. V. Ry. Co., 72 Miss. 22; R.R. Co. v. Ault, 101 Miss. 341; Thomas v. Rounds, 161 Miss. 713, 717.
That tortfeasors are jointly and severally liable is no longer open to question in this state. The court cannot control the verdict of the jury.
R.R. v. Sanderson, 99 Miss. 148; R.R. v. Clark, 85 Miss. 691; Thomas v. Rounds, 161 Miss. 713, 718.
Where there is a special agreement by the master to warn the servant, the non-performance of which is the occasion of injury to the latter, the master will be held liable.
26 Cyc. 1168; Postal Tel. Cable Co. v. Hulsey, 132 Ala. 444, 31 So. 527; Chicago R. Co. v. Gross, 35 Ill. App. 178; Wendell v. Penn. Ry. Co., 57 N.J.L. 467, 31 A. 720; Bradley v. New York Central R. Co., 62 N.Y. 99.
Where a superior servant, who has to employ and discharge other employees, agrees with one of the other servants under him to maintain a lookout and is negligent, the superior servant is acting for the master and is not a fellow servant.
Lawhon v. Laboratories, 252 S.W. 44; Moore v. R.R., 85 Mo. 588; Scullane v. Kellogg, 169 Mass. 544, 48 N.E. 622; Davis v. R.R., 159 Mass. 532, 34 N.E. 1070; R.R. Co. v. Williams, 75 Tex. 4[ 75 Tex. 4], 16 A.S.R. 867.
Argued orally by E.L. Snow, for appellant, and Chas. B. Cameron, for appellee.
Cicero Ferrell, appellee, recovered judgment in the lower court against Gulf Refining Company, appellant, for five thousand, seven hundred fifty dollars, from which this appeal is prosecuted.
On October 10, 1931, the appellee, Ferrell, was ordered by Tatum, superintendent of the filling station operated by the Gulf Refining Company, at the intersection of two streets in the city of Meridian, to go into the street and paint a sign, "Don't Park" and certain lines in the street abutting the property of the filling station at which Ferrell was employed to do the general work of a laborer. At this intersection of streets, Twenty-ninth avenue ran approximately north and south, and Fifth street ran approximately east and west. The filling station was so arranged that its customers could drive in from either street. An athletic field was across Twenty-Ninth avenue east from the Gulf Refining Company, and before this date people desiring to attend football games would park their cars so as to prevent ingress and egress to the filling station while the game was in progress. On this morning, Ferrell applied to the police department for permission to paint on the concrete street and avenue a "no park" sign and draw lines to prevent their place of business being blocked during the football games, and received such permission.
After getting this permission from the police department, Tatum, who directed and controlled, with the right to hire and discharge Ferrell, ordered him to get his paint, bucket, and brush, go into the street, and paint on the concrete pavement the signs to be directed by Tatum. Ferrell complied with this order. Tatum was standing close enough to touch Ferrell, and assured him that he (Tatum) would look out for cars and warn him. This statement is denied by Tatum. In order to paint these signs, Ferrell had to kneel on the pavement two or three feet from the curb, and while so engaged, with his back to the north, and while Tatum was standing in reach of him, after he had been so engaged for about ten minutes, a truck driven by an employee of the Carlton-Hawkins Coal Company, a boy of about eighteen years of age, struck and injured Ferrell. Tatum gave no warning, and there was no warning of any kind given to Ferrell.
The evidence shows that the traffic at this point was heavy, and that the accident occurred about eleven o'clock in the daytime. The proof shows clearly that Ferrell could not paint signs and watch for cars. The driver of the Carlton-Hawkins truck was not looking, and negligently permitted the truck to strike Ferrell. After having been knocked down, Ferrell completed painting the signs under the direction of Tatum, and, when the noon hour came for him to go to lunch, he went to a physician, who carried him to an infirmary, where an X-ray picture was made, showing that there was trouble with Ferrell's collar bone, but not disclosing a fracture. However, they taped his arm and collar bone and had his arm placed in a sling, and he carried it in a sling for seven weeks. He testified to suffering a great deal, and not being able to sleep, or rest on that side. He was a day laborer, and had to lift in order to perform his duty as a helper at a filling station, and he could not lift with that arm. He also testified that he still suffers pain due to his injury, and that there was a fracture of his collar bone because of a popping sound upon any movement of his shoulder.
In addition to the general issue plea, the Gulf Refining Company gave notice that it would undertake to prove that Ferrell had executed a release to the Carlton-Hawkins Coal Company in full settlement of his claim for injuries against them, as well as against the Gulf Refining Company. This release reads as follows:
"I, C.C. Ferrell, Jr., of Meridian, State of Mississippi, in consideration of two hundred sixty-five dollars to me paid by C.S. Carlton, trading as Carlton-Hawkins Coal Company, the receipt of which is hereby acknowledged, do hereby release and discharge the said C.S. Carlton, trading as Carlton-Hawkins Coal Company, from any and all claims, demands, actions and cause of action of every name and nature which I now have or might have upon or against said C.S. Carlton, trading as Carlton-Hawkins Coal Company, and especially from all claims arising out of any and all personal injuries, damages, expenses and loss or damage of whatsoever nature resulting or to result from an accident to me on or about the 10th day of October, 1931. I am over twenty-one years of age and I understand that liability is denied by said C.S. Carlton trading as Carlton-Hawkins Coal Company, who has made no agreement or promise to do or omit to do any act or thing not herein set forth, and I further understand that this release is to compromise and terminate all claims for injuries or damages of whatsoever nature, known or unknown, including future developments thereof, in any way growing out of or connected, or which may hereinafter in any way grow out of or be connected, with said accident. Witness my hand and seal this 15th day of October, 1931.
"C.S. Ferrell, Jr.
"The foregoing instrument was read to C.S. Ferrell, Jr., who said that he understood it; that he knew that in signing it he was setting up an effectual bar to any recovery at law for injuries therein referred to; that he was satisfied with the settlement, and he signed it, all in our presence this October day of 15th, 1931.
"Mrs. C.C. Ferrell, Sr. "Meridian, Miss."
The declaration contains this language: "That by reason of the relationship of master and servant then and there existing between the defendant company as master, and the plaintiff as servant, there arose under the law certain nondelegable duties resting on the master, namely, the duty of furnishing the plaintiff a reasonably safe place within which to perform his work; the further nondelegable duty of prescribing and enforcing reasonable rules relating to the giving of warning to its employees, including the plaintiff of any and all danger then and there attendant upon the execution of said particular character of service to be then performed." It further charged negligence in that the Gulf Refining Company had failed to exercise reasonable care in its nondelegable duty to furnish Ferrell with a safe place in which to work.
The cause was submitted to a jury under instructions of the court, and, although Tatum was sued jointly with the Gulf Refining Company, no verdict was rendered against him, and the judgment of the court below discharged him from liability, and he does not appeal here.
The appellant insists that it should have been granted the peremptory instruction which was refused by the court.
(a) Because the street where Ferrell was directed to work was a reasonably safe place for the work. It contends the paint brushes, buckets, and appliances are not dangerous. This is obviously true, but the appellee was directed by the man denominated "superintendent," who controlled and directed his labor, to go into the street, and it was necessary for him to kneel or crouch upon the pavement to paint the lines thereon. He could not paint and look out for himself. If he looked out, he could not paint, and, if he painted, he could not look out for himself. The street, at this point, is shown to be one bearing heavy burdens of traffic with automobiles traveling thereon. The filling station was inviting the public to drive therein. He was on a part of the street devoted to public travel. The street per se is not a dangerous place, but a much-traveled street, upon which a servant is required to work in the situation he was to be placed, is a dangerous place for such person; he being then helpless to look out for himself.
It is not necessary, under the facts in this case, for us to now say whether or not a street devoted to automobile traffic is a dangerous place in and of itself.
In the year 1931, by reliable statistics, the number of deaths from automobile accidents was thirty-four thousand, and the number of people receiving injuries worthy of report is approximately a million. Whether the statistics be accurate or not, the number killed and injured is very great. States and municipalities have found it necessary to enact rigid rules of traffic, and with all these the number injured is appalling. The very purpose and spirit of our government will be defeated if the lives and limbs of our citizens are not preserved. There can be no happy people, no safe government, with such an appalling casualty list.
The street, at the point where Ferrell had been working, as stated, for about ten minutes, was not a reasonably safe place, he had a right to a warning from the master. It was necessary for him to do this work and he was, in so doing it, blindfolded, as it were, upon a street devoted to traffic. He was not in a situation such as the purveyor of ice, the stenographer of the lawyer, or the street sweeper. He was not warned. There can be no question that this was not a safe place to work as he was situated. The applicable principles of law are to be found and discussed in the case of Oil Co. v. Ellis, 72 Miss. 191, 17 So. 214, wherein the car upon which the servant was stenciling was not, of itself, dangerous, but the negligent bumping of box cars into it rendered it unsafe and dangerous. Also see Bradford v. Taylor, 85 Miss. 409, 37 So. 812; Yazoo M.V.R. Co. v. Smith, 150 Miss. 882, 117 So. 339; Finkbine Lbr. Company v. Cunningham, 101 Miss. 292, 57 So. 916; and Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797.
The duty of the master to use reasonable care to provide a safe place for a man in his employ to work and carry out the design of the master in the furtherance of the master's business is thoroughly outlined in the cases cited above. There was no conflict in the record as to the condition under which Ferrell was directed to labor. This was proven by him, clearly and unmistakably, to be in the line of his duty, in the course of his employment, and in the furtherance of his master's business. That it was a dangerous position, there can be no debate. It was the master's continuous, nondelegable duty to use care to see that the place was reasonably safe for the servant to work therein. It is not a question of appliances; it is a question of place.
(b) It is insisted that Tatum was a fellow servant of Ferrell, and that the negligence was that of a fellow servant, and therefore the master is not liable. In this case the jury, under the instructions of the court, has found that no warning was given to Ferrell. It is not only a nondelegable duty of the master to use reasonable care to provide a safe place for the servant to work in the furtherance of the master's business, but the master may not be relieved of liability in such cases ordinarily by shifting the responsibility to a fellow servant, and the negligence of the fellow servant, in this case, is imputable to the master. See cases cited, supra, and especially the cases of Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703, and Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330. And such duty of the master is nondelegable by him to a fellow servant. We are not called on to decide whether Tatum was a fellow servant or not.
(c) It is next contended that ordering Ferrell to work on the edge of the avenue was not the proximate cause of the accident; Carlton's act being the proximate cause. It is too well settled in our jurisprudence to need citation of authorities that the concurring negligence of two or more persons proximately contributing to an injury does not constitute independent causes or efficient causes.
Of course if no person had driven an automobile on the street in question about eleven a.m. on that day this injury would not have occurred. It is likewise true that, if Tatum had warned Ferrell of the approaching truck, his injury would not have occurred; or, if the master had otherwise warned Ferrell, it would not have occurred.
The negligence of Carlton was a proximate contributing cause, and, together with the negligence of the master in not warning the servant of the imminent danger, contributed to the result. Useless each without the other.
It is not necessary for us to decide in this case the question of procedure as to whether or not Tatum was a fellow servant. If it be conceded that he was the fellow servant of Ferrell, that fact would not relieve the master of liability in failure to perform its nondelegable duty due to the servant.
There can be no reason why employees should be exposed to danger in operating the master's business. Let it be known that courts cannot condone a master who undertakes to shift his responsibilities by appealing to the fellow-servant doctrine in such cases as the one at bar. If the negligence of the master in failing to provide and maintain a reasonably safe place for the servant to work, or to warn the servant of his danger, contributes to the injury of such servant, the master would be liable in spite of the concurring negligence of a third person. This principle of law is too well settled to now argue.
(d) It is urged that the release set forth in the statement of facts was a bar to appellee's recovery. We think, and have purposely set forth the release to show, that it is quite clear from the instrument itself, independent of the evidence offered by the appellee, that there was no intention on the part of Ferrell and Carlton to make any contract affecting any release beneficial to the Gulf Refining Company. Practically the same release was approved by this court in the cases of Bailey v. Delta Electric Light, etc., Co., 86 Miss. 634, 38 So. 354, and Waterman-Fouke Lumber Co. v. Miles, 135 Miss. 146, 99 So. 759.
We conclude that manifestly the appellant was not entitled to a peremptory instruction, but, on the contrary, on the question of liability, the appellee was entitled to a peremptory instruction. There is no real issue of facts on that question in the case at bar.
It follows that the errors assigned as to instructions and the competency of the evidence need not be here considered.
The verdict and judgment in this case appears to be large, but we cannot say that we are convinced that the jury and the court below evinced passion and prejudice as reflected by their verdict.
We therefore decline to interfere with the verdict and judgment.
Affirmed.