Opinion
No. 39888.
January 23, 1956.
1. Master and servant — negligence — alleged defective machine — failure to inspect — evidence — insufficient to establish actionable negligence.
In action for injuries to hand of servant on ground of negligence of the master in failing to exercise reasonable care to furnish servant with a reasonably safe machine and failing to use reasonable care to inspect it, burden was upon the servant to prove negligence and evidence was wholly insufficient to establish actionable negligence where it was not shown that any defect existed which proximately contributed to the servant's injury and which could or should have been discovered upon the reasonable inspection.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Adams County; JAMES A. TORREY, Judge
Berger Callon, Joseph E. Brown, Natchez, for appellant.
I. Inasmuch as the evidence before the County Judge, trying the cause without a jury, was conclusive as to liability on the part of the defendant or, at best for the defendant, in conflict as to liability, the Circuit Court erred in reversing the judgment of the County Court in favor of the plaintiff and in substituting therefor the judgment of the Circuit Court in favor of the defendant.
II. Under Section 1616, Mississippi Code of 1942 Annotated, and under the decisions of this Court in Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, and Martin v. Motors Insurance Corporation, 219 Miss. 473, 68 So.2d 869, the decision of the County Judge, as a Trial Judge trying this cause without a jury, not being manifestly wrong, and being amply supported by the evidence, should have been by the Circuit Court affirmed; and the Circuit Court erred in reversing the judgment and decision of the County Court and in rendering judgment in favor of the defendant, appellee here.
III. Where a machine is complicated, the mere fact that a servant may happen to know as much as the master knows about the instrumentality does not relieve the master from furnishing the servant with a safe instrumentality. It is a nondelegable duty of the master as to complicated machinery and appliances to furnish the servant with safe machinery and appliances with which to do his work, and to keep such machinery and appliances in a reasonable safe condition. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74.
IV. There was an utter absence of that good faith and full understanding of legal rights which are indispensable to the validity of such releases. Kansas City, Memphis Mobile Ry. Co. v. Chiles, 86 Miss. 361, 38 So. 498.
V. The consideration for the release was grossly inadequate. Huff v. Bear Creek Mill Co., 116 Miss. 509, 77 So. 306; 76 C.J.S., Secs. 19, 20 pp. 638-39.
VI. An innocent misrepresentation by the releasee or his agent of a material fact, intended to be acted upon by the releasor, and relied on by him, is effective to avoid a release induced thereby. Tate v. Robinson, 223 Miss. 461, 78 So.2d 461; 76 C.J.S., Sec. 26 p. 649.
Laub, Adams, Forman Truly, Natchez, for appellee.
I. Appellee was guilty of no negligence which was a proximate cause of appellant's injury. Dunn Constr. Co. v. Nail, 192 Miss. 793, 7 So.2d 884; Eagle Cotton Co. v. Sollie, 185 Miss. 475, 187 So. 506.
II. The sole proximate cause of appellant's injury was his own negligence in sticking his hand inside the mold without first hitting the safety bar. Walley v. Williams, 201 Miss. 84, 28 So.2d 579.
III. The release executed by appellant and admitted into evidence by appellee acts as a bar to recovery. Alabama V. Ry. Co. v. Kropp, 129 Miss. 616, 92 So. 691; Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 431.
Appellant Harper sued appellee, Armstrong Tire and Rubber Company, for injuries to appellant's hand. The alleged negligence of appellee was the failure to exercise reasonable care to furnish appellant with a reasonably safe machine, and in failing to exercise reasonable care to maintain a system of reasonable inspection on the machinery with which appellant was required to work.
Trial was had before the county judge without a jury, and judgment was rendered for plaintiff. On appeal to the circuit court, the judgment was reversed. Plaintiff appealed here. We refer to appellant as plaintiff and appellee as defendant.
The injuries were sustained by plaintiff prior to the effective date of the Workmen's Compensation Act, and suit was filed shortly before the claim was barred by the statute of limitation.
Plaintiff was operating an inner tube curing machine and placed his hand about the center of the stationary lower jaw to re-establish connection of the air hose that had blown off while the upper jaw was descending. The machine was automatic and electrically driven. Plaintiff's hand was injured when caught between the jaws of the machine. He reached in between the jaws of the machine without first actuating the safety bar with which the machine was equipped, but actuated the safety bar with his right hand. The descent of the upper jaw was not arrested by means of the safety device before his hand was caught, but the descent was arrested before the jaws completely closed and plaintiff was able to jerk his hand from the machine.
(Hn 1) The proper thing for plaintiff to have done was to first push the safety bar and then insert his hand into the machine to connect the air hose. The machine was working properly prior to the accident, as well as afterwards, and there is nothing to show that any repairs were made on the safety device after the injury and before the machine was thereafter found to be working properly. Plaintiff was unable to show any defect in the safety device that contributed in any way to his injuries. The burden was upon plaintiff to prove negligence, and in this he wholly failed, and there is no basis for a judgment in his favor.
Assuming there was no reasonable inspection of the machines on the part of the defendant, such lack of inspection was not actionable negligence because it was not shown that any defect existed which proximately contributed to the plaintiff's injury, and which could, or should, have been discovered upon reasonable inspection.
We do not reach consideration of the validity of the release pleaded by the defendant.
Affirmed.
Roberds, P.J., and Lee, Arrington, and Ethridge, JJ., concur.