Summary
In Thomas v. Mississippi Products Co., 208 Miss. 506, 44 So.2d 556, it was held that the failure to give Thomas sufficient instruction as to the performance of dangerous work was negligence, and that it was for the jury to say whether or not such failure proximately caused or contributed to his injuries.
Summary of this case from Farish v. Canton Flying ServicesOpinion
No. 37404.
February 27, 1950.
1. Trial — instruction — peremptory charge.
All of the evidence, and all the reasonable inferences that may be drawn therefrom, must be taken as true in favor of the party against whom a peremptory instruction is asked.
2. Master and servant — inexperienced servant — dangerous machinery — warning and instruction.
The master is under duty to adequately warn and instruct a youthful and inexperienced servant employed as a helper in the operation of a dangerous machine, in this case a ripsaw driven by an electric motor, and especially so when the master sees that the servant is doing his work in a dangerous manner.
3. Trial — conflicting evidence — jury must decide.
When there is a substantial conflict in the evidence whether a youthful and inexperienced servant, injured by a dangerous machine, was in fact warned and instructed by the master as to the proper method of its use and operation for the avoidance of danger, the disputed issue must be submitted to the jury.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, Judge.
Wells, Wells, Newman Thomas, for appellant.
POINT I. On defendant's request for a peremptory instruction all evidence favorable to plaintiff and every reasonable inference deducible from such evidence must be taken as undisputed.
Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, collates numerous cases decided by this honorable court announcing and supporting this rule. More recent authorities are: Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Suggestion of Error overruled 195 Miss. 848, 17 So.2d 208; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 44; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Allgood v. United Gas Corporation, 204 Miss. 94, 37 So.2d 12; Blalock v. Magee, 205 Miss. 209, 38 So.2d 708.
POINT II. Plaintiff's testimony was not in conflict with material facts and was of such a real and substantial nature that impartial men of sound judgment could reasonably believe it and prudently act thereon.
POINT III. Plaintiff's testimony stated a cause of action against defendant.
An employer in the State of Mississippi is under a duty to inform an inexperienced or immature employee of the dangers incident to his work and to instruct him as to the proper method of performing his work, so as to obviate as much as possible the dangers incident thereto.
One of the earliest cases decided in this state clearly setting forth this principle is I.C. Railroad Co. v. Price, reported in 72 Miss. 862, 18 So. 415, where the court stated the principle.
Another early case is Cumberland Telephone Telegraph Co. v. J.C. Cosnahan, et al., 105 Miss. 615, 62 So. 824.
In 1923 this court again approved the principle in Dobbins v. Lookout Oil and Refining Co., 133 Miss. 248, 97 So. 546.
On January 12, 1948, in the case of Bonelli, et al. v. Flowers, 203 Miss. 843, 33 So.2d 455, Justice Roberds in a brief and succinct opinion affirmed the validity of these prior cases in an appeal involving facts very similar to facts in this case.
Seldom if ever in legal research is a case discovered directly in point both as to facts and issues involved, but the case of J.W. Sanders Cotton Mill Co., Inc. v. Bryan, 181 Miss. 573, 179 So. 741, is such a case.
POINT IV. Credibility of witnesses, issues of fact, and questions of negligence are for the jury.
Questions of negligence and questions of fact are for the jury. Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150. For further cases see Miss. Digest, Vol. 14, Trials, Key No. 134.
Credibility of witnesses is for the jury. Kennedy v. Little, 191 Miss. 73, 2 So.2d 163; Caldwell v. Smith, 200 Miss. 711, 28 So.2d 657. For further cases see Miss. Digest, Vol. 14, Trials, Key No. 140 (1).
The weight, sufficiency, and probative force of the evidence is for the jury. Caldwell v. Smith, 200 Miss. 711, 28 So.2d 657. For further cases, see Miss. Digest, Vol. 14, Trials, Key No. 139 (1).
POINT V. The granting of a peremptory instruction to the defendant by the honorable circuit judge constituted reversible error.
An early attempt to devise a formula that could be applied equally to all cases in deciding whether or not a peremptory instruction was proper, was M. O. Railroad Co. v. Johnson, 165 Miss. 397, 141 So. 581.
No discussion of the peremptory instruction law of this state would be complete without a thorough basic understanding of the case of Thomas v. Williamson, 185 Miss. 83, 187 So. 220.
Slight additions have been engrafted by subsequent cases on that rule as set down in Thomas v. Williamson. One such case is Truckers Exchange Bank et al. v. Conroy, 190 Miss. 242, 199 So. 301. Another such case is that of Jakup v. Grocer Co., et al. 190 Miss. 444, 200 So. 597.
In the more recent case of G.M. N. Railroad Co. v. Weldy, 195 Miss. 345, 14 So.2d 340, the court quotes the standards set out in Thomas v. Williamson as being the applicable test determining the right to a peremptory instruction.
A case which closely parallels this present decision factually is Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564. See also the recent case Standard Oil Co., et al. v. Henley et al., 199 Miss. 819, 25 So.2d 400.
If the honorable circuit judge was inclined to discredit plaintiff's testimony, his only proper course would have been to submit the issue to the jury: then, if the jury's verdict had been contrary to his own views, he could have set the verdict aside and ordered a new trial.
An early case forcefully presenting the above rule of law is Columbus and Greenville Railway Co. v. Burford, et al., 150 Miss. 832, 116 So. 817.
Later cases have remained entirely consistent with these early decisions as is borne out by the court's opinion in M. O. Railroad Co. v. Johnson, supra, wherein the Newton and Burford cases were cited as controlling authority for reannouncing and affirming this proposition.
A still more recent decision is Universal Truck loading Co. v. Taylor, 178 Miss. 143, 172 So. 756.
Jackson, Young, Daniel Mitchell, for appellee.
Appellee was entitled to, and the trial judge was correct in giving, a peremptory instruction on the charge of failure to instruct appellant.
A. The master is not required to promulgate rules governing the performance of duties by servants except where, in addition to being dangerous, the work of the servant is also complex. Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Poplarville Lumber Co. v. Kirkland, 149 Miss. 116, 115 So. 91; Holliday v. Fulton Band-Mill, Inc., 142 F.2d 1006, (5th Cir.); Brown v. Coley, 168 Miss. 778, 152 So. 61; Masonite Corp. v. Stevens, 201 Miss. 876, 30 So.2d 77.
B. The operation being performed by appellant was simple and not complex, and therefore there was no duty to instruct him. Poplarville Lumber Co. v. Kirkland, 149 Miss. 116, 115 So. 91; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Holliday v. Fulton Band-Mill, Inc., 142 F.2d 1006; Masonite Corp. v. Stevens, 201 Miss. 876, 30 So.2d 77.
C. Appellant has not offered any substantial evidence to show that the alleged failure to instruct was the proximate cause or proximate contributing cause of the injury sustained by him.
D. The accident in which appellant was injured was unavoidable, and the appellee is not liable therefor. Billingsly v. Illinois Central Railroad Co., 100 Miss. 612, 56 So. 790; Zebrowsky v. Warner, etc., Co., 83 N.J. 558, 83 A. 957, 46 L.R.A., (N.S.) 233.
POINT II. Appellee's response to brief of appellant. Bonelli, et al. v. Flowers, 203 Miss. 843, 33 So.2d 455; J.W. Sanders Cotton Mill Co., Inc. v. Bryan, 181 Miss. 573, 179 So. 741; Brown v. Coley, 168 Miss. 778, 152 So. 61; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v. Lookout Oil and Refining Co., 133 Miss. 248, 97 So. 546; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Poplarville Lumber Co. v. Kirkland, 149 Miss. 116, 115 So. 91; Holliday v. Fulton Band-Mill, Inc., 142 F.2d 1006, (5th Cir.); Masonite Corp. v. Stevens, 201 Miss. 876, 30 So.2d 77; Thomas v. Williamson, 185 Miss. 83, 187 So. 220.
Point III. Appellee was entitled to, and the trial judge was correct in giving a peremptory instruction on the charge of failure to provide a guard. Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Morgan Hill Paving Company v. Morris, 160 Miss. 79, 133 So. 229; Columbus and G.R. Company v. Coleman, 172 Miss. 514, 160 So. 277; Seifferman v. Leach, 161 Miss. 853, 138 So. 563.
POINT IV. Appellee was entitled to, and the trial judge was correct in giving, a peremptory instruction on the charge of failure to furnish a reasonably safe place for appellant to work. Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279.
Conclusion. Bridges v. Jackson Electric Railway Light Power Co., 86 Miss. 584, 38 So. 788.
Appellant, Vernon Lee Thomas, filed his suit in the First Judicial District of Hinds County to recover damages from the appellee, Mississippi Products Company, Inc., on account of a serious injury to his left hand. His declaration was in three counts, charging negligence of the appellee in (1) failing to give instructions to and warn the appellant, who was inexperienced, about the performance of his duties, and (2) in failing to provide a guard on the ripsaw, and (3) in failing to provide a reasonably safe place to work. At the conclusion of appellant's evidence, appellee made a motion to exclude such evidence and direct the jury to find a verdict for the appellee. This motion was overruled. Thereupon the appellee introduced its evidence. When both sides rested, the appellee asked for and obtained peremptory instructions to find for the appellee on all three counts. The appellant was aggrieved at this action by the trial court, and prosecutes his appeal here.
The appellee, in this particular operation, was trimming thin sheets of veneer. For this purpose, it used a ripsaw. The saw was a circular blade mounted on a steel frame. It was driven by an electric motor and rotated toward the operator and his assistant. On top of the stationary equipment were steel rollers and bearing surfaces. There was a moving table on top of these rollers and bearing surfaces. The table was the only moving part. When pulled toward the operator, it would clear the saw blade. In this position, it was loaded and unloaded with the thin sheets of veneer before and after the trimming operation. When the veneer sheets had been placed on the table, the operator and his assistant pushed the table into the moving saw, and the saw cut across the width of the table. After this operation, they would then retract the table from the saw and remove the trimmed veneer.
Appellant, in his brief and argument, concentrates his complaint on the error in granting the peremptory on count (1), and abandons the assignment as to the other two.
The question therefore presented for decision is whether or not the trial court erred in granting the first peremptory. The answer thereto necessitates a consideration of the applicable principles of law, together with the evidence adduced at the trial.
(Hn 1) The well settled rule is that all evidence, and all of the reasonable inferences that may be drawn therefrom, must be taken as true in favor of the party against whom a peremptory instruction is asked. Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Allgood v. United Gas Corp., 204 Miss. 94, 37 So.2d 12; and cases there cited.
Appellant testified for himself, and his evidence for the purpose of this decision, must be accepted as true. It showed that he was 19 years old, a lumber stacker, without experience around machinery. In his application for the job, he gave his occupation as lumber stacker, and stated that he was twenty years old, because the company had a rule against employment of those under that age. When he first went to work, his job was hooking logs on a box car, out on the yard. He did this for about a week. His superior then put him to work around the ripsaw as an assistant to H.G. Phillips, who was the operator. His instructions were simply to pick the veneer up, put it on the table, tamp the ends, mash it down so the saw could cut it, and help the operator to push it through the saw. The mashing down was necessary because the veneer would buckle. The operator to the side used a stick or board to press the veneer down, and this caused the veneer on the other side to buckle. This stick or board was held within three to six inches of the ripsaw, which was exposed two and a half to three inches above the table. Appellant's superior did not demonstrate the operation of the saw; and on several occasions saw appellant, with his hands on the veneer, push it through the saw, but made no comment. Neither did Phillips, the operator next to him, ever correct him. On the occasion in question, appellant picked up the necessary amount of veneer, put it on the table, tamped the ends, and mashed it down with both hands as he had always done. As he was pushing it through the saw, about three or four pieces of the veneer rode the saw, that is, slipped across the saw on the opposite side; and by his pushing, it slipped, and his hand with it, slipped across the saw, causing the injury complained about.
(Hn 2) According to this evidence, Thomas was given insufficient instruction as to the performance of this dangerous work. If, by any stretch of the imagination, his superior thought that Thomas could be relied on to do this work, without instructions, yet, when he actually observed Thomas, on a number of occasions, doing the work in a dangerous manner, then, at least, such superior was under the duty to instruct him fully as to the danger, and correct him in the method being then employed. This failure to instruct raised an issue of negligence; and it was for the jury to say whether or not such failure proximately caused or contributed to the appellant's injuries.
In J.W. Sanders Cotton Mill Co., Inc., v. Bryan, 181 Miss. 573, 179 So. 741, Bryan, a seventeen and a half year old boy, was engaged in the operation of a shearing machine, and this court said that he should have been instructed as to the construction of the machine, manner of operation, and the dangers attendant on its operation. The court recognized the necessity for warning and instruction to a servant either of immature years or inexperience about the dangerous character of the work that he may understand its perils, and avoid them. It cited with approval the rule laid down in 39 C.J. 514, 522, 56 C.J.S., Master and Servant, Sections 306, 307.
In Bonelli v. Flowers, 203 Miss. 843, 33 So.2d 455, a seventeen year old boy was injured in operating a ripsaw, in which operation, he claimed that he was inexperienced.
The court there said that such work was extremely dangerous, and that it was the duty of the employer to instruct him about his work; and that, since the evidence was in dispute on this point, it was a question for the jury. It will be noted that this was a ripsaw case too.
Much is said by the appellee in justification of the granting of the peremptories. It takes the position that this is a case where it was not required that rules governing the performance of duties be promulgated since, even if the work was dangerous, it was not also complex. Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Poplarville Lumber Co. v. Kirkland, 149 Miss. 116, 115 So. 191, and other cases are cited. Those cases deal with instances of simplicity and freedom from complexity. They are clearly distinguished we think from the case made here, as, under appellant's version, the work was both dangerous and complex.
An inexperienced boy, nineteen years of age, who had never had any experience before around machinery, was put to work at this ripsaw. In the Bonelli case, supra, it was held that this kind of work is dangerous. If his evidence was true, in the first instance, he was directed to do his work in a highly dangerous manner. If his evidence was true, after his superior saw him doing the work in a highly dangerous way, the superior did not correct him — did not tell him how dangerously he was performing the work — but let him continue in the same way. If this was true, it showed that he had no appreciation whatever of the perils at hand. Besides, it appeared that the operator, using a stick or board, was not hurt. Yet, the appellant was putting his hands on the veneer itself, mashing it down and pushing it through the saw, with no like protective device.
(Hn 3) The appellee, by its evidence, contradicted the version given by Thomas. Its two witnesses said that he was fully instructed; that the operation was demonstrated; that after Thomas had placed his hands on the veneer in pushing it through the saw, he was warned and forbidden to do this; that he had done the work for nearly two weeks and knew better; and that immediately before the injury, he was warned against this. In other words, there was a sharp dispute in the evidence.
Under such circumstances, the court was not at liberty to resolve the conflict in the evidence. A clear cut issue was presented for determination by the jury. That is our system. We let twelve fair and impartial men, duly empanelled, hear the witnesses and determine the facts where they are in dispute. They are the the judges of the weight, worth and credibility of the evidence. They could have, on this conflict in the evidence, found a verdict for either of the litigants. But, at all events, it was for the jury to decide.
For this error in granting the peremptory, the judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.