Opinion
No. 35151.
January 25, 1943.
1. MASTER AND SERVANT.
Comparative knowledge of the dangerous condition of place of work, if there is conflict in testimony, is question for jury.
2. MASTER AND SERVANT.
In action against employer to recover for injuries to carpenter as result of fall when stepping on loose plank, evidence relating to employee stepping upon plank in compliance with order given by employer to help fellow worker, and that employee did not know plank was not fastened, supported finding for plaintiff on question of comparative knowledge of dangerous condition of place of work.
3. MASTER AND SERVANT.
Rule as to master's duty to furnish safe place to work in case of changing condition during construction has no application in action to recover for injuries based upon obedience to an urgent order given by master directing servant to go immediately into a dangerous place known to master but unknown to servant to be dangerous.
4. MASTER AND SERVANT.
Ordinarily, an employee has right to assume he may safely act under direction or command of his employer or of foreman or other superior employee under whom he is working.
5. MASTER AND SERVANT.
In action against employer to recover for injuries to carpenter resulting from a fall when stepping upon loose plank, evidence as to whether employer directed carpenter to get into particular place was for jury.
6. MASTER AND SERVANT.
In action against employer to recover for injuries to carpenter resulting from a fall when stepping upon loose plank, question of whether carpenter could have selected way to go to assistance of fellow worker as directed by employer was for jury under evidence showing command was urgent and that carpenter had no time to investigate.
7. MASTER AND SERVANT.
"Constructive knowledge" by employer of dangerous condition is equivalent of "actual knowledge" and sufficient to create liability for injury resulting to employee directed by employer to go into dangerous place.
8. APPEAL AND ERROR.
In employee's action against employer for injuries, a showing that statement was made by a juror in presence of prospective jurors that a "man that had his neck broke was trying contractor and insurance company for $20,000" required reversal, where it appeared that injury to plaintiff consisted in fracture of vertebrae in neck and that during trial he was wearing a high collar which prevented his moving head and causing fresh injury and recovery sought was $20,000.
9. TRIAL.
Evidence or statements before jurors informing them correctly or incorrectly that defendant is insured against liability for which suit is brought is error.
SMITH, C.J., dissenting.
APPEAL from the circuit court of Jones county, HON. F. BURKITT COLLINS, Judge.
Welch Cooper, of Laurel, for appellants.
The facts show without any dispute that appellee was a carpenter of long experience. He knew the hazards and the risks attendant upon the construction of a building. He was familiar with the place where he was injured.
This court has held that in work of construction, destruction or repair where the conditions are constantly changing as the work progresses, the master is not liable to his servant for an injury caused by the unsafeness of the place of work.
Gulf, M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; City of Tupelo v. Payne, 176 Miss. 245, 168 So. 283; Craig v. Craig et al., 192 Miss. 271, 5 So.2d 673.
As a servant is presumed to have accepted the responsibility for any injury which is caused by one of the ordinary risks of employment, negligence is not predicable of an order which merely exposes him to such a risk.
4 Labatt on Master and Servant, Sec. 1361.
In several cases it has been held that, if the facts are otherwise such as to negative culpability, the master cannot be found guilty of negligence merely because the testimony also shows that he or his representative gave directions by which the injured person was required to use special haste in performing the work in hand.
Labatt on Master and Servant, supra.
Manifestly this duty of providing a safe place is dependent upon the character of the work to be done there. Hence, when that work is one of construction, re-construction, destruction, or repair, the risks which are incident to such places and kinds of work are assumed by the servants there employed.
Gulf, M. N.R. Co. v. Brown, supra; International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413.
Mr. Walker was an experienced carpenter. He knew his business. Mr. Odom had the right, in view of this known experience, to assume that appellee would look where he was going and exercise care for his own safety.
International Shipbuilding Co. v. Carter, supra.
Where a servant, experienced as was the appellee, in carrying out an instruction, selects an unsafe way when there were available safe ways, then there is no liability on the part of the master.
Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443.
We think that the rule which requires the master to furnish a safe place to work does not apply to cases where the prosecution of the work itself makes the place and creates the dangers. The prosecution of the work in the instant case necessarily changed the place of work as the work progressed, and these changes often increased the hazard.
International Shipbuilding Co. v. Carter, supra; Craig v. Craig et al., supra; City of Tupelo v. Payne, supra; Gulf, M. N.R. Co. v. Brown, supra.
The court instructed the jury that if the appellants knew, or by the exercise of reasonable care should have known, that the place of work was unsafe, then it was the duty of the jury to find for the plaintiff, appellee here. If that instruction be correct, then the master is liable in any construction work when he gives any order or direction which in any way exposes the servant to a danger. The authorities all concede that in the work of construction or destruction unsafe places are constantly developing and dangers and hazards constantly arising. This fact must be known to any master who has had any experience as a master in the work of construction or destruction or of any carpenter who has had any experience at all while engaged as a servant in the work of construction or destruction. It follows, therefore, that the appellants were bound to know in giving orders and directions that the servant would encounter, in following the orders, risks which would arise in the course of the work. If this be true, then the master is liable in all instances in work of this character where he directs his servants to perform certain duties which would necessarily require them to go to certain places. This is true because experience has taught the master that in work of this character unsafe places are constantly developing and in the exercise of any care whatsoever, whether reasonable or unreasonable, he is bound to know that an unsafe place may have developed because they constantly develop and any direction he may give his servants would, therefore, be a negligent one.
The action of the court in overruling the motion to discharge the panel and defer the trial until a later time was error.
This court and a large majority of other courts have recognized that the injection of the "insurance-company" issue into a trial of a personal injury case is fraught with grave consequences.
Standbridge v. Martin, 203 Ala. 486, 84 So. 266.
Leonard B. Melvin, of Laurel, for appellee.
The question here is, did the defendant Odom order the plaintiff Walker into an unsafe place knowing the place to be unsafe or could have known the place to be unsafe by ordinary diligence?
The defendant was present and had given plaintiff direct and specific instructions to step right where he did at the time of his injury. It was the step that plaintiff made at the time he was under the direct command of defendant that caused his injury.
Plaintiff was ordered by the defendant to "hurry, the man is in a tight" and the occasion demanded that plaintiff be in a hurry.
The danger was so hidden that the plaintiff could not protect himself from the danger and continue to do his work.
The defendant knew or should have known of the dangerous condition of the place.
The defendant ordered the plaintiff into a place of known danger and assumed the duty of selecting the way and should have exercised reasonable caution to select and prepare a safe way.
See C. R. Lumber Co. v. Crane, 135 Miss. 303, 99 So. 753; Cybur Lumber Co. v. Erkhart, 118 Miss. 401, 79 So. 235.
In the case at bar the evidence shows that this was a hidden danger against which the plaintiff could not protect himself and at the same time do his work.
Craig v. Craig, 192 Miss. 271, 5 So.2d 673.
Argued orally by Ellis B. Cooper, for appellants, and by Leonard B. Melvin, for appellee.
Walker, appellee, obtained a judgment against Odom and Tillery, appellants, for personal injuries caused by a fall which resulted, so Walker alleged, from his compliance with an urgent order of appellants, as masters, to him, as their servant, directing him into a dangerous and unsafe place to work, while he was engaged as a carpenter in the employ of appellants in the construction of a dwelling house.
Appellants first say that Walker is precluded from recovery because he knew of the dangerous condition of the place into which he was ordered to go. The dangerous condition consisted in this: A two by four plank sixteen feet long rested flatwise and loose upon nails partly driven into a sill of the house some six to eight feet from the ground. The edge of the plank was against and outside the sill and was being used as a measure or yardstick by another servant for the purpose of marking upon the sill the places where the upright studding would rest thereon. The workman would slide the plank forward as his work progressed. Walker stepped upon this loose plank, and he and the plank fell to the ground. He testified that the plank had the appearance of being permanent and substantial, and that he did not know of the hidden danger and could not have ascertained the fact, except by getting down from the building onto the ground and examining underneath the plank; that the order was given by Mr. Odom, who was personally present superintending the construction of the house, and that it was an urgent order to relieve and help a fellow worker who was holding up a section of the studding attempting to nail a top piece thereon; and that he had no time or opportunity to examine or investigate the condition of the place into which he was ordered. Walker is amply supported by other testimony. There is no direct proof that Walker knew of the dangerous condition.
Comparative knowledge of the dangerous condition of the place of work, if there is a conflict in the testimony, is a question for the jury. 35 Am.Juris., p. 558, Sec. 128.
In addition to this, the appellants — defendants — submitted to the jury on the trial of the case, under an instruction that they obtained, the question of comparative negligence as between plaintiff and defendants in the lower court. There is ample evidence to support the finding of the jury on that question.
The appellants next say that Walker cannot recover, because the conditions were continuously changing in the course of the construction of the building, and that, in such cases, the master is not under duty to furnish a safe place to work. Gulf, M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; City of Tupelo v. Payne, 176 Miss. 245, 168 So. 283; Craig v. Craig et al., 192 Miss. 271, 5 So.2d 673. This action, in its last analyses, is not based upon an unsafe place to work, but upon obedience by the servant to an urgent order given by the master directing him to go immediately into a dangerous place, known to the master but unknown to the servant to be dangerous. The rule of changing conditions during construction has no application to this case. In 35 Am.Juris., p. 698, Sec. 273, this rule is announced: "Ordinarily, an employee has a right to assume he may safely act under the direction or command of his employer or of the foreman or other superior employee under whom he is working. Accordingly, in determining the issue as to responsibility for the employee's injury, much importance attaches to the fact that the employer or his representative gave a command, order, or direction to the employee to do the act which resulted in injury to the latter. Where this fact is shown, the issue as to responsibility or negligence is held, ordinarily, to be properly submitted to the jury. It is a fundamental of the relation of master and servant that the servant shall yield obedience to the master; and this obedience an employee properly may accord even on being confronted with perils that otherwise should be avoided. In any case, but more plainly where a command is sudden and there is little or no time for reflection and deliberation, the employee may not set up his judgment against that of his recognized superiors; on the contrary, he may rely upon their advice, assurances, and commands, notwithstanding many misgivings of his own." See also, C. R. Lumber Co. v. Crane, 135 Miss. 303, 99 So. 753. This case is further distinguished from those cited above by appellants, in that Odom was personally present on the job directing the activities of the employees, and the proof is entirely sufficient to show that he had actual knowledge of the dangerous condition, which danger, in the absence of knowledge thereof, was a hidden danger.
The appellants next contend that the proof fails to show that Odom ordered Walker into this place of danger. They say Walker himself selected the place. Odom denied that he gave any order at all. Other witnesses say that he did, and the jury found that he did. The jury also found that Odom directed Walker into this particular place. We cannot say from this record that he did not do so. A model of the house was used before jury when the witnesses were testifying. The witnesses illustrated by this model. The record is full of such expressions as that Odom told Walker to "get over there" (indicating) or "over here" (indicating). There is nothing in the record to show where these places were; but Walker testified that he got into the place where Odom told him to get, and that place was upon the loose plank which caused him to fall to the ground and which produced his injury. We cannot say that Odom did not direct Walker to get into this particular place.
Whether Walker could have selected the way to go to the assistance of his fellow worker was a question for the jury. He, and other witnesses, said that the command was urgent and that he had no time to investigate, that this plank had the appearance of being a permanent and substantial part of the building, and that he went the way directed by Odom. That also was a question for the jury. C. R. Lumber Co. v. Crane, supra.
Appellants further contend that they cannot be liable unless the proof shows that they had actual knowledge of the dangerous condition. They complain because the lower court refused to grant them instructions to that effect. We might say that the testimony is entirely sufficient to show that they did have actual knowledge, but the law seems to be settled in such cases that constructive knowledge is the equivalent of actual knowledge. See Gulf, M. N.R. Co. v. Brown, supra; Craig v. Craig et al., supra; Kneale v. Lopez Dukate, 93 Miss. 201, 46 So. 715; Hope v. Natchez, C. M.R. Co., 98 Miss. 822, 54 So. 369; Mississippi Cent. R. Co. v. Bennett, 111 Miss. 163, 71 So. 310; Davidson v. Riley, 5 Cir., 17 F.2d 345; Randolph Lumber Co. v. Minchew, 172 Miss. 535, 159 So. 849; 35 Am. Juris., Sec. 559, p. 129. The lower court did not err in overruling the request of appellants for a directed verdict.
The appellants also complain of other designated instructions granted the plaintiff and refused the defendants below. We have considered them and think no error was commited in that respect, especially in view of the instructions granted appellants.
But the case must be reversed and remanded for a new trial because of the proceeding now to be related: The trial started Thursday afternoon about three o'clock, and at the time of the adjournment that day plaintiff had examined all the jurors except one. The court instructed the eleven jurors who had been examined that they might separate but not to talk to any one, or permit any one to talk to them, about the case being tried. On Friday morning, after the plaintiff had accepted the twelve jurors and while counsel for defendants was interrogating them as to whether any one had talked with them about the case, one juror, in the presence of the other eleven accepted jurors, as well as in the presence of prospective jurors, said that before he was called into the box as a juror "We was down here in the court room and some man, I don't know who it was, but he said a man was being tried that had his neck broke, that he was trying the contractor and the insurance company for $20,000;" that he was not acquainted with this man, and the man was not trying to talk to the jurors. Thereupon counsel for the defendants moved the court to discharge that panel and set the trial for a later day in the term, so that a jury might be obtained who had not heard these remarks, which motion the court overruled and then proceeded with the trial of the case. The injury for which Walker sued consisted in the fracture of one and the dislocation of another vertebrae in his neck, and during the trial he was wearing around his neck a high collar made of stiff leather and steel, which prevented his moving his head and causing fresh injury to these places. His suit was for $20,000. This court has consistently held that evidence or statements before the jurors informing them, correctly or incorrectly, that defendant is insured against liability for which the suit is brought, is error. Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605; Robertshaw Trustees et al. v. Columbus G. Ry. Co., 185 Miss. 717, 188 So. 308. In Standridge v. Martin, 203 Ala. 486, 84 So. 266, 267, the court said: "There can scarcely be made to a jury a more seductive and insidious suggestion than that a verdict for damages against the defendant before them will be visited, not upon that defendant, but upon some invisible corporation whose business it is to stand for and pay such damages. Such a suggestion, once lodged in the minds of the jury, is almost certain to stick in their consciousness, and to have its effect upon their verdict, regardless of any theoretical exclusion of it by the trial judge. In such cases the obvious, and indeed the only, remedy is to set aside the verdict and order another trial."
It is true that in some of these cases the extent of the error has been determined by the wrongful conduct in disclosing this information to the jury, and that no such question is here involved. Nevertheless, the idea was implanted in the minds of the jurors at the beginning of the trial that these defendants, who were local people, were insured against liability and a judgment against them would cost them nothing. Defendants had no way to offset this idea — whether they did, or did not, in fact have such insurance. We must apply rules, aided by common sense, to the practical administration of the law. We think this idea could not but influence and have weight with the jury. The great aim of the courts is justice; they are created, organized, and conducted to administer justice as perfectly as human beings are capable of so doing; they more nearly approximate that aim, as the judge and the jurors are fair and impartial, without bias, interest or prejudice — seeking only to accomplish that purpose.
The court should have sustained the motion, and for this error we must reverse the case for a new trial.
Reversed and remanded.
I agree with my associates that "we must apply rules, aided by common sense, to the practical administration of the law," which if acted on here should lead to an affirmance of this judgment, and this I think should be done.