Summary
In Cherry v. Hawkins, 243 Miss. 392, 397, 137 So.2d 815, 816 (1962), we clearly stated that a denial of continuance will not be reversed unless a prejudice resulted.
Summary of this case from Ekornes-Duncan v. Rankin Medical CenterOpinion
No. 42177.
February 19, 1962.
1. Continuance — amendment as not requiring.
Amendments to change first initial of one defendant, to change date of injury from on or about December 15 to December 21 and to aver that source of injury was electric torch rather than blow torch were slight and not such as to prejudice defendant and did not require that continuance be granted. Sec. 1520, Code 1942.
2. Appeal — continuance — denial of — appellate review — point not preserved on motion for new trial.
Denial of continuance was not presented for appellate review where not preserved on motion for new trial. Sec. 1520, Code 1942.
3. Master and servant — safe place to work — safe instrumentalities — extent of master's duty to furnish.
Master has duty to use reasonable care to furnish servant with reasonably safe place to work and with suitable and reasonably safe instrumentalities.
4. Master and servant — same — same — master not an insurer — liability for negligence.
Master is not insurer of safety of instrumentalities or places to work, furnished his servant, but he is liable for negligence or for failure to exercise due, ordinary, reasonable care in those respects.
5. Master and servant — same — same — duty of master to furnish such as are reasonably safe and suitable for purposes in view.
Master is not required to furnish servant newest, safest and best machinery, appliances, and places to work; his obligation is met when he furnishes such as are reasonably safe and suitable for purposes in view.
6. Master and servant — same — same — duty to servant becomes more imperative as risk increases.
Master's duty to servant becomes more imperative as risk increases, as to acts and precautions required by ordinary prudence.
7. Master and servant — inherently dangerous machinery — duty of master.
When servant is working on or with machinery which is inherently dangerous, master is required to exercise such reasonable care in respect to installation, maintenance and operation as is commensurate with dangers involved and it is immaterial that servant knows as much about complicated instrumentality as employer as far as duty of employer to furnish safe instrumentalities and appliances is concerned.
8. Master and servant — method of using tools and instrumentalities — promulgation of rules for guidance of servant — duty of master.
Master does not discharge duty to servant in method of using tools and instrumentalities by mere promulgation of rules for guidance of servant, but he is bound to use reasonable care and diligence to see that rules are enforced and complied with.
9. Master and servant — negligence — alleged failure to furnish employee adequate protective equipment in electric welding operation — jury questions presented.
Whether master made available in shop goggles which could have been worn by servant suing for injuries allegedly sustained to eye while helping welder, whether they were reasonably safe and suitable protection for such type of work, and whether master had instructed servant to wear goggles and had used reasonable care to see that rule in such respect was complied with were questions for jury.
10. Damages — eye injury sustained while assisting electric welder — award grossly excessive.
$4,500 for eye injury sustained while assisting welder was grossly excessive where evidence established only small loss of earnings up to time of trial, plaintiff offered no medical testimony though he had been treated by three doctors, and during one week after injury he worked as a driver of heavy equipment, earning more than twice his salary with defendant, and new trial would be awarded on damages. Sec. 1697, Code 1942.
11. Damages — extent of injury — loss of earnings — burden of on plaintiff.
Burden was on servant suing master for injuries to show extent of injuries and loss of earnings.
12. Appeal — remand — new trial — damages — comparative negligence.
In new hearing as to damages in servant's suit against master, all facts could be presented on question of negligence of parties so that jury would have right to apportion damages under comparative negligence statute. Rule 13, Supreme Court Rules.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Quitman County; E.H. GREEN, J.
Denton Gore, Marks, for appellant.
I. It was error to overrule the motion for a continuance.
II. Error of trial court in overruling appellant's motion for directed verdict. Brown v. Coley, 168 Miss. 778, 152 So. 161; Cornish v. McCoy, 226 Miss. 366, 84 So.2d 391; Crosby v. Burge, 190 Miss. 734, 1 So.2d 504; Gulf M. O.R. Co. v. Hawthone, 225 Miss. 1, 82 So.2d 454; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 743; Seifferman v. Leach, 161 Miss. 853, 138 So. 563.
III. Error in granting instructions for appellee. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 536; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Hooks v. Mills, 101 Miss. 91, 57 So. 545; 2 Alexander's Mississippi Jury Instructions, Sec. 3235.
IV. Error in the verdict for the appellee and the amount thereof. American Creosote Works v. Smith, 233 Miss. 892, 103 So.2d 861; Armour Co. v. McMillan, 171 Miss. 199, 155 So. 218; Beard v. Williams, 172 Miss. 880, 161 So. 750; Chapman v. Powers, 150 Miss. 687, 116 So. 609; City of Greenwood v. Pentecost, 148 Miss. 60, 114 So. 259; City of Vicksburg v. Scott, 168 Miss. 572, 151 So. 914; Davis v. McDonald, 180 Miss. 780, 178 So. 467; Dixon v. Breland, 192 Miss. 335, 6 So.2d 122; F.H. Ross Co., Inc. v. McWhirter, 216 Miss. 658, 63 So.2d 38; Gibson v. A.P. Lindsey, Distributor, Inc., 233 Miss. 853, 103 So.2d 349; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 250; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Meridian Coca Cola Bottling Co. v. Illges, 187 Miss. 27, 191 So. 817; Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9; Peerless Supply Co., Inc. v. Jeter, 218 Miss. 61, 65 So.2d 240; Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; St. Louis-San Francisco R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Walley v. Williams, 201 Miss. 84, 28 So.2d 579; Yazoo M.V.R. Co. v. Dailey, 157 Miss. 3, 127 So. 576; Yazoo M.V.R. Co. v. Mothershed, 122 Miss. 835, 85 So. 98.
Ben M. Caldwell, Marks; William R. Bradley, Clarksdale, for appellee.
I. It was not error to overrule appellant's motion for a continuance. Delta Motors, Inc. v. Childs, 233 Miss. 125, 101 So.2d 527; F.B. Walker Sons, Inc. v. Rose, 223 Miss. 494, 78 So.2d 592; Gardner v. Price, 199 Miss. 809, 25 So.2d 459; Owens v. Conlee, 218 Miss. 55, 65 So.2d 435; Re Estate of Whittington, Dec'd., 217 Miss. 457, 64 So.2d 580; Westbrook v. Corneil, 199 Miss. 108, 23 So.2d 753.
II. It was not error for the trial court to overrule appellant's motion for a directed verdict. Albert v. Doullut Ewin, Inc., 180 Miss. 626, 178 So. 312; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650; F.W. Woolworth Co. v. Price, 199 Miss. 809, 25 So.2d 459; Gow Co., Inc. v. Hunter, 175 Miss. 896, 168 So. 246; Gulf M. N.R. Co. v. Kelly, 178 Miss. 531, 171 So. 883; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 475; Hokes v. Horan, 208 Miss. 478, 44 So.2d 551; Mississippi Cottonseed Products Co. v. Harris, 198 Miss. 138, 192 So. 439; Mississippi Power Light Co. v. Merritt, 194 Miss. 794, 12 So.2d 527; Odom v. Walker, 193 Miss. 862, 11 So.2d 452; Scott Burr Stores Corp. v. Morrow, 182 Miss. 743, 180 So. 741; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238; Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; United Novelty Co., Inc. v. Daniels (Miss.), 42 So.2d 395.
III. The Court did not err in granting instructions for appellee. Brown v. Watkins, 213 Miss. 365, 56 So.2d 888; C R Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Evans v. Jackson City Lines, 212 Miss. 895, 56 So.2d 80; Four-County Electric Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144; Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So.2d 916; Mitchell-Davis Distributing Co. v. McDonald, 223 Miss. 573, 78 So.2d 597; 1 Alexander's Mississippi Jury Instructions, Sec. 224.
IV. The verdict of the jury should be affirmed. Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 799; Odom v. Walker, supra; Rasberry v. Calhoun County (Miss.), 230 Miss. 858, 94 So.2d 612; Williams v. Clark, 236 Miss. 423, 110 So.2d 365.
Appellee Ralph Hawkins filed this tort action in the Circuit Court of Quitman County against his employer, J.C. Cherry, doing business as Sun-Rise Rice Farms. Plaintiff charged that he received injuries to his eye while helping a welder, who was employed by defendant as foreman and was using an electric torch; and that the cause of his injuries was the negligence of defendant in failing to use reasonable care to furnish him with a reasonably safe place to work and reasonably safe tools and appliances. The jury returned a verdict for plaintiff for $4,500. This appeal is from the judgment based thereon.
(Hn 1) Hawkins was injured on December 21, 1960. The suit was filed on January 11, 1961. The original declaration charged that "M.C. Cooper" was Cherry's foreman; that Cooper was using a "blow-torch" while welding metal on a boat; and that plaintiff was injured on or about December 15, 1960. Apparently the declaration intended to make Cooper a defendant, along with Cherry. Thereafter N.C. Cooper filed a motion to quash process on him, averring he was not a defendant. This motion was sustained and N.C. Cooper discharged. On March 1, 1961, the date of trial, the court permitted plaintiff to amend his declaration to correct the first initial of Cooper, to change the date of injury to December 21, 1960, and to aver that Cherry's foreman was using an electric torch. These amendments were allowed. There was no error in overruling defendant's subsequent motion for a continuance, on the ground there were material changes in the cause of action. The stated amendments were slight and were not such as to prejudice defendant. This Court will not reverse the denial of a continuance unless it is satisfied that prejudice resulted. Miss. Code 1942, Rec., Sec. 1520. The amendments were not material ones and could not have worked any injustice. (Hn 2) Moreover, appellant did not preserve this point on its motion for a new trial, so, even if it were otherwise of merit, it cannot be raised here.
The two principal issues pertain to liability and damages. On the first, certain basic principles are pertinent: (Hn 3) A master has the duty to use reasonable care to furnish his servant with a reasonably safe place in which to work, and with suitable and reasonably safe instrumentalities to do his work. (Hn 4) The master is not an insurer of the safety of the instrumentalities or places to work, furnished his servant, but he is liable for negligence for the failure to exercise due, ordinary, reasonable care in those respects. 56 C.J.S., Master and Servant, Secs. 201-202, 205. (Hn 5) The master is not required to furnish the newest, safest and best machinery, appliances, and places for work. His obligation is met when he furnishes such as are reasonably safe and suitable for the purposes had in view. Ibid., Sec. 207.
(Hn 6) The master's duty becomes more imperative as the risk increases, as do the acts and precautions required by ordinary prudence. Stewart v. Kroger Grocery Co., 21 So.2d 912; Gulf M. N.R. Co. v. Kelly, 178 Miss. 531, 171 So. 883 (1937); 56 C.J.S. 907. (Hn 7) Hence, when the servant is working on or with machinery which is inherently dangerous, the master is required to exercise such reasonable care in respect of the installation, maintenance, and operation of such machinery, as is commensurate with the dangers involved. 56 C.J.S., Master and Servant, Sec. 215. It is immaterial that the servant knows as much about a complicated instrumentality as the employer, as far as the duty of the latter to furnish safe instrumentalities and appliances is concerned. Ibid., Sec. 215; Miss. Power Light Co. v. Merritt, 194 Miss. 794, 12 So.2d 527 (1943); Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 475 (1929). (Hn 8) The master does not discharge his duty, in the method of using tools and instrumentalities, by the mere promulgation of rules for the guidance of his employee. He is bound to use reasonable care and diligence to see that the rules are enforced and complied with. Scott Burr Stores v. Morrow, 182 Miss. 743, 750-751, 180 So. 741 (1938); Albert v. Doullut Ewin, Inc., 180 Miss. 626, 178 So. 312 (1938); United Novelty Co. Inc. v. Daniels, 42 So.2d 395 (1949).
(Hn 9) On the issue of liability, appellant contends that he was entitled to a peremptory instruction, and, alternatively, the verdict is against the overwhelming weight of the evidence. In reviewing a jury verdict, we must accept as true the evidence favorable to appellee and all reasonable inferences from it.
Hawkins said Cooper, his foreman, directed him to hold a short piece of iron, which Cooper was welding onto the bottom of a boat with an electric welding torch. Cooper wore a helment on his head, but plaintiff had no protection over his eyes and face. Plaintiff was standing up holding the piece of iron, when some hot pieces of metal from the welding flew in his eye. It is not clear whether one or both eyes were hit. Hawkins said that no welding helmet or other equipment for protection to his face was furnished him, and there was nothing else in the shop which he could put over his eyes and face for protection. He knew welding was dangerous, but he had never seen any goggles around the shop.
James Smith, an employee of defendant, said he was present when Hawkins received the "flash burn from the welding". However, there were available nearby on the acetylene welding rig two pairs of goggles. Smith said he had been instructed to protect his eyes when welding. The goggles would not protect one from flash burns in electric welding, but they would protect against hot metal flying from an electric torch. Plaintiff denied he had been instructed by defendant to use a protective covering for his eyes while helping a welder.
For defendant, Cooper stated that he wore a helmet while using an electric torch. Hawkins had no goggles on, although there were two pairs hanging in the shop and available. Cooper said that one working as a helper to an electric welder could use goggles to prevent both flash burns and flying metal. He had instructed Hawkins several times to wear the goggles when he was helping, although he did not direct him that day to wear them. Brooks, an employee of Cherry, also said the goggles were in the shop and available to plaintiff.
With these contradictions in the testimony, it was a jury issue as to whether defendant made available in the shop goggles for plaintiff to wear, and whether they were a reasonably safe and suitable protection for that type of work. Plaintiff said no such devices were present. The jury had the right to accept his testimony. Moreover, plaintiff asserted he had not been instructed to wear goggles. Defendant's foreman, Cooper, admitted that he had not directed plaintiff that morning to put them on. So assuming goggles were available, it was not sufficient for the employer to merely promulgate the rule that they should be worn. Cherry had the further duty to use reasonable care to see that the rules are enforced and complied with. If goggles were available, the jury could have concluded also that Cooper should have directed Hawkins to put them on. Cooper admitted that he did not do this on this occasion. Moreover, an additional issue was whether the goggles were adequate protection in electric welding.
The instructions submitted the issues to the jury. It accepted plaintiff's testimony that he was not furnished by defendant any protective equipment; and found that he assisted the foreman, on the latter's direction, without any adequate protective appliances; that this negligence of the employer by his agent was the proximate cause of plaintiff's injuries. Although on liability the case is a rather close one, we are unable to say that the jury was not warranted in finding negligence and proximate cause.
(Hn 10) With reference to the amount of damages awarded plaintiff, $4,500, we conclude that the evidence is wholly insufficient to support a verdict in that amount, and it is grossly excessive. Plaintiff testified that he had considerable pain and discomfort from the injuries to his eye or eyes; and his evidence established a small loss of earnings up to the time of trial. During one week after his injury, he worked in Arkansas driving heavy equipment called a "scraper", at $140 a week, which was more than double his weekly salary for Cherry. That job was still available for him, when his eyes permitted. His medical bills were $146.
Plaintiff made no complaint at the time of the accident. He said that one is not aware of such an injury until about four hours later, but this is improbable and unreasonable, in view of the extreme sensitivity of the eye and the impingement of hot molten iron on it. Plaintiff worked for several days after the injury. On December 26, he drove his car at least 110 miles. It was testified that, several days after the injury, Hawkins' eyes were red, watering, and bloodshot. The source of that condition and its nature are not revealed. Plaintiff said a doctor told him to wear glasses, but there is no evidence indicating a medical need for them, other than Hawkins' statement to that effect.
The evidence is ambiguous and indefinite with reference to future loss of earnings. Plaintiff offered no medical testimony, although he had been treated by three doctors. During the trial defendant offered as a witness Dr. Robert Sayle, but plaintiff claimed his statutory privilege and the court properly sustained the objection. Miss. Code 1942, Rec., Sec. 1697. An eye injury is one which particularly indicates the need for expert medical testimony, where a plaintiff is seeking substantial damages, as here. The physiology and prognosis of eye injuries are complex medical questions. Plaintiff's evidence leaves the jury and the court completely in the dark as to the precise injuries to his eyes and the future effects, if any, of those injuries.
(Hn 11) The burden was on plaintiff to show the extent of his injuries and loss of earnings. His evidence fails to meet that burden, gives no indication of the medical nature of the injuries to his eyes, and no possible measure of the loss of earnings. For these and the other stated reasons, the verdict is grossly excessive.
(Hn 12) The judgment of the circuit court is affirmed on liability, reversed on the issue of damages, and remanded for a new trial on the issue of damages only. Supreme Court Rule 13. In the new hearing as to damages, all facts may be presented to the jury on the question of negligence of all parties, including plaintiff, and the jury will have the right to apportion damages under the comparative negligence statute. Vaughan v. Bollis, 221 Miss. 589, 73 So.2d 160 (1954); Carlisle v. Cobb Bros. Construction Co., Inc., 238 Miss. 681, 119 So.2d 918 (1960).
Affirmed on liability, and reversed and remanded for new trial as to damages only.
McGehee, C.J., and Kyle, Arrington, and Gillespie, JJ., concur.