Summary
In Gulfport Fertilizer Company v. Bilbo, 178 Miss. 791, 174 So. 65, 66, we said: "All instructions in a case must be read and considered together as one, and when this instruction is read in connection with, and as a part of, the appellee's instruction, referred to above, we think the jury was furnished with a fair guide as to the measure of duty of the master, and that, consequently, the error in appellee's instruction does not justify or require a reversal."
Summary of this case from Film Transit Co. v. CrappsOpinion
No. 32595.
May 3, 1937. Suggestion of Error Overruled May 31, 1937.
1. MASTER AND SERVANT.
Whether employer used reasonable care in providing safe place for employee engaged in breaking up and removing large pile of material used in manufacture of fertilizer held for jury.
2. APPEAL AND ERROR. Evidence.
In employee's action, based on employer's alleged negligence in failing to furnish reasonably safe place to work, refusing to permit introduction of photograph of bin in which employee was hurt held error, where counsel for employee joined in request of employer for introduction of photograph, but not reversible where mass of material in bin at time photograph was taken was not same as that contained therein at time of employee's injury, and where jury could easily form clear conception of size and type of bin without aid of photographs.
3. MASTER AND SERVANT.
Instruction that employer was under duty to furnish employee reasonably safe place to work held error.
4. MASTER AND SERVANT.
Master is under duty to exercise only ordinary or reasonable care to provide reasonably safe place for employee to work.
5. TRIAL.
All instructions in case must be read and considered together as one.
6. TRIAL.
Error in instructing that employer was under duty to furnish employee reasonably safe place to work held not reversible where court gave further instruction correctly stating rule as to degree of care required of employer.
7. DAMAGES.
$5,000 damages for injuries, including 13 broken ribs, necessitating hospitalization for 20 days and confinement in bed at home for three months, and rendering injured party unable to work at time of trial seven months after injury, held not excessive.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
Leathers, Wallace Greaves, of Gulfport, for appellant.
The obligation of the master to establish a safe system or method of doing the work required of his servants and to promulgate and enforce rules for the observance of such a system or method applies only when, in addition to being dangerous, the work is complex, and the conditions which may arise are uncertain and obscure.
Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Brown v. Coley, 168 Miss. 778, 152 So. 61; Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279.
The master is never required by law to furnish the latest and safest places to work, nor the latest, most improved and safest equipment, appliances and tools. He has discharged his legal duty to his servant when he has exercised reasonable care to furnish a reasonably safe place to work, and reasonably safe equipment, appliances and tools for use in the performance of the work.
Morgan-Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61; C. G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; L. N.R.R. Co. v. Davis, 75 F.2d 849.
It is a universal rule of law wherever the common law prevails that the duty of the master in respect to places to work, and in respect to equipment, appliances and tools for the performance of the work, is not that of an insurer, is not an absolute duty, but is simply the duty to exercise reasonable care to furnish his servant a reasonably safe place in which to do the work required of him and reasonably safe equipment, appliances and tools for use in the performance of the work to be done.
M. O.R.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Gulfport Creosoting Co. v. White, 157 So. 86; C. G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298.
When the law speaks of "reasonable safety" in connection with a place of work, and the equipment, the appliances and the tools to be used in the performance of the work, it means a working place, with equipment, appliances and tools which can be used with reasonable safety to the servant when he exercises reasonable care in the normal use of such working place, equipment, appliances and tools.
Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298.
The law only requires the master to exercise reasonable care to furnish his servant a reasonably safe place in which to work, and reasonably safe equipment, appliances and tools to do the work with.
Brown v. Coley, 168 Miss. 778; Barron Motor Co. v. Bass, 167 Miss. 786.
The evidence discloses without conflict, that on account of the innate character of the work itself, the keeping of the working place in a reasonably safe condition throughout every moment the appellee and his fellow servants worked there, depended upon the performance of the work itself by the appellee and his fellow servants in a reasonably prudent manner. In other words, the work itself was not unduly dangerous in its nature, therefore, any unusual dangers in the working place, in the very nature of things, had to be created by the appellee and his fellow servants, as the work progressed, by reason of their failure to discharge their respective duties with reasonable care to the end that they would not unduly create dangers which would endanger their safety and would render their working place unsafe.
Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; 39 C.J. 824, sec. 1038; Barron Motor Co. v. Bass, 167 Miss. 786; Gulfport Creosoting Co. v. White, 157 So. 86.
The work being performed by the appellee and his fellow servants when he was injured was not inherently dangerous, neither was it such work that conditions which might arise during its performance were obscure and uncertain; but the work was of such a nature that the conditions constantly shifted and changed from time to time as the work progressed in its usual and ordinary course of performance, which unavoidably caused the reasonable safety of the place of work from moment to moment as the work progressed to be wholly dependant upon the performance of the work by the appellee and his fellow servants with reasonable care for their safety and the safety of the place of work. Under such circumstances, and in view of the maturity and experience of the appellee and his fellow servants, the appellant was relieved by law of the duty to stand by and to guard and protect the appellee from the harmful consequences of his negligence and the negligence of his fellow servants in the performance of the work being done.
International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413; G.M. N.R.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 14 So. 143; City of Tupelo v. Payne, 168 So. 283; Gaines v. Strickland, 170 So. 695; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440; Brown v. Coley, 168 Miss. 778, 152 So. 61.
When the master has furnished a suitable place in which to do the work and the ordinary, proper and suitable equipment and appliances kept in good order with which to work, then, if the servant is a mature and sensible man of some experience in the character of work there being done, the obligation to look after and take care of himself as to all obvious or manifest dangers in the details of the work is upon the servant.
Austin v. M. O.R.R. Co., 134 Miss. 226, 99 So. 3; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Barron Motor v. Bass, 167 Miss. 786, 150 So. 202; Eastman Gardiner Hd. Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443.
The servant assumes all risks that naturally inhere in the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant.
Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Brown v. Coley, 168 Miss. 778, 152 So. 61.
The master is responsible to the servant only for injuries received through his negligence, and the burden of proving such negligence is upon the servant.
Hope v. N.C. M.R.R. Co., 98 Miss. 822, 54 So. 369; A. V.R.R. Co. v. White, 106 Miss. 141, 63 So. 345.
When a servant is injured by reason of a defect in a place of work furnished by the master, one of the essential elements of negligence on the part of the master is knowledge, actual or constructive, of the existence of the defect in the place of work; consequently the burden of proving such knowledge is upon the servant, and he cannot recover damages for his injuries without making such proof.
Hope v. N.C. M.R.R. Co., 98 Miss. 822, 54 So. 369; A. V. Ry. Co. v. White, 106 Miss. 141, 63 So. 345; G.M. N.R.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Gulfport Creosoting Co. v. White, 157 So. 86; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Brown v. Coley, 168 Miss. 778, 152 So. 61.
It is well settled that the appellant cannot be legally held to be liable in this case, in any event, unless it is legally found that it failed to exercise ordinary care in the premises; and that ordinary care of a reasonably prudent man does not demand that he should prevision or anticipate an unusual, improbable, or extraordinary occurrence, though such happening is within the range of possibilities. Probability arises in the law of negligence when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected. Remote possibilities do not constitute negligence from a judicial standpoint.
I.C.R.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 33; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; C. G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
To hold the appellant liable in this case will be to legally require a master to prevision and anticipate that experienced employees, in the performance of ordinary work within the range of their experience, will voluntarily commit acts of negligence which will result in injuries to themselves, and illegally force the master to become the obligatory guardian of each of his servants.
Where, as a part of the duties under his employment, it is the duty of a servant to so perform his duties that the place of work will be maintained in a reasonably safe condition, and he negligently fails to do so, and, as the proximate result of such negligence on his part, he sustains injury, he cannot attribute his own negligence to the master and thus profit by his own wrong.
Hegwood v. Newman Lbr. Co., 132 Miss. 487, 96 So. 695; Waterman-Fouke Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759; Edward Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Eastman Gardiner Hwd. Co. v. Chatham, 168 Miss. 471, 151 So. 556.
The master is not bound to give instructions to a servant who, from intelligence and experience, or knowledge, is able to appreciate the dangers of the employment he has undertaken.
Crossett Lbr. Co. v. Land, 121 Miss. 834, 84 So. 15; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; International Shipbuilding Co. v. Carter, 121 Miss. 103; G.M. N.R.R. Co. v. White, 106 Miss. 141; City of Tupelo v. Payne, 168 So. 283; Gaines v. Strickland, 170 So. 695; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440.
A casual reference to the photograph will clearly illustrate that it would have furnished the jury a more realistic picture of the place where the fertilizer was piled and where the appellee was working when he sustained the injuries complained of than could be obtained from any other course. The correctness of the representation reflected by the photograph was verified by the appellant's witness, B.L. Padgett.
It is respectfully submitted that the photograph would have furnished the jury a correct impression and a better understanding of the place where the fertilizer was piled when the appellee sustained the injuries complained of; and that the action of the court in excluding it from the evidence constitutes prejudicial error.
Beard v. Turritin, 161 So. 688; K.C.M. B.R.R. Co. v. Smith, 8 So. 43; 22 C.J. 917, sec. 1119.
The court erred in granting the plaintiff the following instruction: "The court instructs the jury for the plaintiff that it was the duty of the defendant to furnish the plaintiff wih a reasonably safe place in which to perform his work, and if the jury believe from a preponderance of the evidence that the defendant failed to furnish the plaintiff with a reasonably safe place in which to work while performing his duty, and the failure of the defendant, if failure there was, proximately caused the plaintiff to sustain the injuries, if any, then it is the duty of the jury to find for the plaintiff."
It is well settled in law that the master is not a guarantor, nor an insurer, of the safety of the place where his servant must work; the obligation to furnish a reasonably safe place to work is not an absolute one. The master is only required to exercise reasonable care to furnish a reasonably safe place to work. And if the place is not reasonably safe, still there is no liability on the part of the master if he has used reasonable care to make it reasonably safe.
Meridian Grain Elevator Co. v. Jones, 169 So. 771.
Where the work to be performed is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety, the master is relieved of the duty to use reasonable care to provide a reasonably safe place for his servant to work. The hazards arising thus are regarded as being the ordinary dangers and risks of the employment which are assumed by the servant when he accepts the employment.
City of Tupelo v. Payne, 168 So. 283; Eastman-Gardiner Hwd. Co. v. Chatham, 168 Miss. 471, 151 So. 556; McComb Box Co. v. Duck, 174 Miss. 449, 164 So. 406.
The instruction as given by the court made it the absolute duty of the appellant to furnish the appellee a safe place to work, whether such a place could be provided by the exercise of reasonable care or not.
Under the facts, as clearly established by the evidence in this case, the instruction as given is a peremptory instruction to the jury to find for the plaintiff on the issue of liability, and constitutes prejudicial error.
Gulfport Creosoting Co. v. White, 157 So. 86; McComb Box Co. v. Duck, 174 Miss. 449, 164 So. 406.
Considered in the light of the contributory negligence on the part of the appellee and the character of the injuries sustained, the verdict of the jury is so large as to manifest passion, prejudice and favoritism.
Beard v. Williams, 172 Miss. 880, 161 So. 750; Robinson v. Haydell and Cody, 177 Miss. 233; Kress Co. v. Sharp, 156 Miss. 193, 126 So. 650; City of Jackson v. Carver, 82 Miss. 583, 35 So. 157.
Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellee.
The action of the court in submitting the question of fact to the jury as to whether the defendants had fulfilled their duty towards the plaintiff in providing him a safe place to work was correct and the peremptory instruction asked for by the defendant was properly denied.
Eagle Cotton Oil Co. v. Pickett, 166 So. 764.
In view of the decision of this court in the Pickett case, which, as we view it, is on all-fours with the case at bar, we deem it unnecessary to take up the authorities cited by opposing counsel in their argument on this question. If the Pickett case was decided properly, then the directed verdict was properly denied by the court below. We take it that this court will not overrule the closely reasoned opinion therein and for that reason we deem that further citation of authority and argument is unnecessary.
The court held the picture incompetent because it was not shown that the conditions were the same at the time the photograph was taken as they were at the time Bilbo was injured. Of course the density, or kind of material, could not possibly be conveyed to the mind by a photograph. The only remaining condition that was then the same, insofar as the evidence shows, was the height. The court will see from the picture offered that the fertilizer in the photograph sloped up from feather edge in a cone shaped mass to the top of the building. Whether it was the same height at the ground, two feet up, or at the top, was not shown, the material feature in the case at bar was the contour of the mass and the liability that the mass would fall when the same was undermined. This is not shown at all by the photograph and we, therefore submit that the same was not properly authenticated under the rules of law so as to render it admissible.
The photographs must be shown by extrinsic evidence to be a true and faithful reproduction of the place and subject as it existed at the time involved in the controversy. Accordingly, the photograph is not admissible if it was taken at a time so far removed from the time to which the controversy relates that the surroundings, or conditions, have changed meanwhile, or, if from any reason, it does not appear to represent the subject or condition existing at the time of the occurrences in controversy in such a way as to be instructive. Accordingly, a photograph which is merely a reproduction of a planned, or hypothetical situation, or condition, should be rejected.
22 C.J. 919-20.
It is, of course, fundamental that all of the instructions must be read together and that the same constitute a single charge to the jury.
Hawkins v. Hudson, 45 Ala. 482; Boesen v. Omaha St. Ry. Co., 119 N.W. 771, 83 Neb. 378.
Construing the instructions together and as a single charge, we find that the court instructed the jury that it was the duty of the master to furnish to the servant a safe place to work and that if the jury should find from the evidence that the master had failed in this duty and the servant injured thereby, that it was the duty of the jury to return a verdict for plaintiff, but that the master was not an insurer of the safety of his servant but was only under a duty to exercise ordinary care to furnish the servant a reasonably safe place in which to work and if they believed from the evidence that the defendant had exercised ordinary care to make the place of plaintiff's work reasonably safe, it was their duty to find for the defendant.
Eagle Cotton Oil Co. v. Pickett, 166 So. 764; 64 C.J., pages 960, 970, 975, 976.
The verdict is not contrary to weight of evidence. The verdict is not excessive.
Argued orally by R.A. Wallace, for appellant, and by Chalmers Potter, for appellee.
This is an appeal from a judgment of the circuit court of Harrison county, awarding the appellee damages for personal injuries alleged to have been sustained by him as a result of the negligence of the appellant in failing to exercise reasonable care to furnish him a reasonably safe place to work.
Appellee was employed by appellant to work in its fertilizer factory, and at the time of his injury, he and other employees were engaged in breaking up and removing a large pile of material used in the manufacture of fertilizer which was stored in a large bin or compartment of one of appellant's buildings. Except as to the density of the mass or pile of material being moved, and the type of tools required to loosen and tear down the pile, the facts, as testified to by appellee's witnesses, are substantially the same as those in the case of Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764, and upon the assignment of error based upon the action of the court in refusing a peremptory instruction requested by appellant, the Pickett Case, supra, is controlling; and, consequently, the peremptory instruction was properly refused.
The appellant also complains of the action of the court in refusing to permit the introduction of a photograph of the bin or inclosure at which the appellee was hurt. It was admitted that at the time the photograph was taken, the material piled in the bin was not the same as that contained therein at the time of appellee's injury; but in view of the fact that the photograph correctly represented the bin itself, and that counsel for the appellee joined in the request that the photograph be admitted in evidence, we think this photograph should have been admitted; but we are of the opinion that its exclusion did not constitute reversible error. Since the mass of fertilizer base, which was in the bin when appellee was injured, had been removed and other material placed therein before the photograph was taken, it was inadmissible for the purpose of showing the pile of base. It appears, however, to have been offered for the purpose only of showing the size and condition of the bin; but this bin was so fully described in the testimony of the witnesses that the jury could easily form a clear conception of the size and type thereof without the aid of the photograph.
Appellant next complains of an instruction granted to appellee which told the jury that it was the duty of the appellant to furnish the appellee a reasonably safe place to work, and that if it failed to do so there was liability if such failure proximately caused the injury sustained by the appellee. That it is the duty of the master to exercise only ordinary or reasonable care to provide a reasonably safe place to work has been pointed out in so many decisions of this court that it is somewhat surprising that this erroneous instruction should be continued to be requested and granted. In the Pickett Case, supra, the error in a similar instruction was pointed out, but, in view of the fact that there were reversible errors in other instructions, we did not decide whether or not the error in this particular instruction was cured by other instructions which correctly stated the rule as to the degree of care required of the master.
In the case at bar the appellant secured an instruction reading as follows: "The Court instructs you for the defendant that an employer is not an insurer of the safety of his employees, but that the employer is only under a duty to exercise ordinary care to furnish the employees with a reasonably safe place in which to work; and that if you believe from the evidence in this case that the defendant exercised ordinary care to make the place of plaintiff's work at the time of his alleged injuries reasonably safe, under all of the circumstances as shown by the evidence in this case, then it is your sworn duty to return a verdict for the defendant." All instructions in a case must be read and considered together as one, and when this instruction is read in connection with, and as a part of, the appellee's instruction, referred to above, we think the jury was furnished with a fair guide as to the measure of duty of the master, and that, consequently, the error in appellee's instruction does not justify or require a reversal.
Finally, it is contended that the verdict of $5,000 is so excessive as to evince passion and prejudice on the part of the jury. When the fertilizer base fell upon the appellee, he was knocked unconscious, and he was carried to a hospital, where he remained in an unconscious condition for approximately nine days. He remained in the hospital for twenty days, and then was carried to his home, where he was confined to his bed for three months. X-ray pictures disclosed that thirteen of appellee's ribs were broken, and an X-ray picture taken about two months after the injury showed that three of the ribs were not uniting properly. He was under the care of a physician for about five months, and there was testimony to the effect that up to the time of the trial of the case, about seven months after the injury, he continued to suffer severe pain and was unable to do any work. Upon this evidence, we are unable to say that the verdict is so excessive as to evince passion and prejudice on the part of the appellee.
The judgment of the court below will, therefore, be affirmed.
Affirmed.