Opinion
No. 33188.
May 2, 1938. Suggestion of Error Overruled June 13, 1938.
1. MASTER AND SERVANT.
Where laborers are transported by master as part of their employment in motor vehicle driven by another employee, driver is a "fellow servant," and master is not liable to laborers for injuries resulting from driver's negligence.
2. MASTER AND SERVANT.
Where highway contractor in transporting employees to and from work was using truck with sides 23 1/2 inches above floor level and of same kind as was in general use for that purpose in road construction work, truck was in good condition, and customary number of employees were being transported in customary way, there was no negligence on part of contractor in regard to condition of truck as to employee who was thrown therefrom, either because truck swerved to avoid another truck, or because of collision with trailer of that truck.
3. MASTER AND SERVANT.
An employee of highway contractor could not recover from contractor for injuries sustained when thrown from contractor's truck while being transported home from work, where injuries resulted either from negligence of truck driver or from negligence of driver of another truck, since contractor would not be liable for negligence of driver of other truck and was not, under fellow-servant rule, liable for negligence of driver of its own truck.
APPEAL from the circuit court, of Adams county; HON. R.E. BENNETT, Judge.
Lotterhos Travis and Vardaman S. Dunn, all of Jackson, for appellant.
Appellee fails to make a case under count one of his declaration. The fellow servant rule applies with respect to appellee and the driver of appellant's truck, from which it follows that the negligence, if any, of the driver is not attributable to appellant.
Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279.
Appellee fails to make a case under the second count of his declaration. Most of the charges of negligence in the second count of appellee's declaration may be effectually eliminated at the very outset, for the reason that the facts alleged to support same have no foundation in the record whatsoever. There is no evidence to show that appellee was standing at the time of the accident, but the testimony is uncontradicted that he was, in fact, seated. There is no evidence to show that appellee was caused to trip over the tools and implements stated to be present in the truck body. There is no evidence to show that the truck was equipped with a cab, preventing plaintiff from observing the curves in the road.
We respectfully submit that appellee cannot sustain a recovery on the remaining charges of negligence against appellant for two reasons, namely: first, the facts fail to establish negligence, and, second, there is no casual connection between the alleged negligence of appellant and the accident in question.
The master is not an insurer, but the extent of his duty under the law is to exercise reasonable care to furnish his servant a reasonably safe place in which to work.
Hooks v. Mills, 101 Miss. 91, 57 So. 545; Anderson v. McGrew, 154 Miss. 295, 122 So. 492; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 165 So. 764; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Wilson Co. v. Holmes, 177 So. 24.
The rule of reasonable care does not require the master to furnish his servant with the best available appliances with which, or places within which, to work, but his duty does not extend beyond reasonable care, as aforesaid.
Kent v. Y. M.V.R. Co., 77 Miss. 494, 27 So. 620; Hatter v. Ill. Cent. R.R. Co., 69 Miss. 642, 13 So. 827; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229.
Nor does the rule of reasonable care require the master to adopt unreasonable or impracticable means or methods or those which at last will not be effective or, if effective, will be negligible in general results. The test is not danger, but negligence.
Hamontree v. Cobb Const. Co., 168 Miss. 884, 152 So. 279.
In determining what is reasonable care on the part of the master, it is proper to consider that he observes and follows the usual and customary method or system generally employed by prudent men engaged in the same business, and the rule is stated that where he follows such method or system he is not liable unless the unreasonable unsafeness therein is so evident that impracticable persons could not well be in disagreement upon the issue.
Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Hamontree v. Cobb Const. Co., 168 Miss. 884.
The master's duty ceases when he has exercised reasonable care to furnish the servant a reasonably safe place in which to work, and from this point the servant assumes the risk. This rule applies to the complaining servant as well as his fellow employees.
Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.
A wrongdoer is responsible for the consequences of his own wrongful act, but he is not responsible for what others, acting independently of him, and for themselves, did, even though his act may be the occasion of their act.
Bufkin v. Louisville N.R. Co., 161 Miss. 594, 137 So. 517; Ozen v. Sperier, 150 Miss. 458, 117 So. 117.
The very most that can be said is that the testimony creates a mere suspicion, conjecture or possibility that negligence existed. But something more substantial than suspicion or conjecture of possibility is required to sustain a recovery in the case at bar. This court has so held in at least three recent cases.
New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
Engle Laub, of Natchez, for appellant.
The evidence fails to disclose that appellant was guilty of any negligence proximately contributing to or causing the accident. The evidence conclusively establishes that appellant discharged his full duty to the appellee under the law.
Vehicle Woodstock Co. v. Bowles, 128 So. 98, 158 Miss. 342; Brown v. Coley, 152 So. 61; Columbus G.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Wilson Co., Inc. v. Holmes, 177 So. 24; Williams v. Lumkin, 169 Miss. 146, 152 So. 842.
The court having granted the peremptory to the first count should have granted the peremptory to the second count, each count, for all practical purposes, being a duplication of the other.
Buckley v. United Gas Public Service Co., 168 So. 462, 176 Miss. 282; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 784; Tallahala Lbr. Co. v. Holliman, 125 Miss. 308, 87 So. 661; Burch v. Southern Bell Telephone Telegraph Co., 173 So. 300, 178 Miss. 407; Southern Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. M.V.R.R. v. Cornelius, 131 Miss. 37, 75 So. 90; Roland v. Morphis, 130 So. 906; Marx v. Berry, 168 So. 61; May v. Culpepper, 172 So. 336, 177 Miss. 811.
The appellant was under no obligation that made him an insurer to the extent that he insured the safe transportation of the appellee to and from work.
Oliver v. Miles, 110 So. 666, 144 Miss. 852; Lowenburg v. Cline, 125 Miss. 284, 87 So. 653.
Joseph E. Brown and Luther A. Whittington, both of Natchez, for appellee.
Admitted that the sides of the truck were 23 or 24 inches high, that still leaves the question for the jury under the facts and circumstances in this case as to whether that admitted height was reasonably sufficient to safeguard plaintiff and others riding in that truck from being spilled out and thrown over the sides of the truck in which they were riding. An accepted fact in this case, the fact accepted by the jury as to the happening of the injury to the plaintiff, was that when the truck was brought to a stop by reason of going into a ditch in undertaking to pass another truck at a point where the road was only fifteen feet wide, that three of the men in the truck were thrown out over the sides of this truck and terribly mangled and injured, two of them being killed, and the appellee having his back broken, while at the same time those who were in the truck were thrown about in the truck among the tools of the truck with the result that one received a broken hip, another a broken right arm, and another had his fingers cut off. This we respectfully submit is conclusive proof that the sides of the truck were not sufficiently high to reasonably safeguard those riding therein from being thrown out of the truck. Of the sixteen men in the truck three of them were thrown out and pitched out over the sides of the truck and three men were injured in the truck. It is admitted that the truck body was not equipped with guard rails, hand holders or other things to which appellee and others riding therein might have held on to prevent themselves from being thrown out of the truck.
The direct question as to whether the appellant was guilty of negligence in not providing appellee with a reasonably safe place in which to ride in the truck and a reasonably safe truck in which to be transported, having in mind the tools crowded therein, the number of men placed therein, the speed at which the truck was governed to operate, the character of highway and road over which it was being operated and the use thereof by the public, was squarely presented to the jury. Under the facts in this case that question which the court was in duty bound to submit to the jury and the jury after being thoroughly instructed on this question, and after being instructed over and again that in determining that question they could not take into consideration any negligence of the driver of the truck, the jury found against the contention of the appellant and in favor of the appellee; and the verdict of the jury, therefore, should be affirmed, because in Mississippi all cases of negligence ought to be resolved by the jury and not by the courts.
The preponderance of the evidence in this case is against the contention made by the appellant that the truck in which plaintiff was riding was struck by the Avery truck. The contention, therefore, that the proximate cause of plaintiff's injury was the striking of the truck in which he was riding by another truck must fail. Because the jury in this case definitely found against appellants' contention that plaintiff was injured because the truck in which he was riding was struck by the trailer of the Avery truck and that therefore the proximate cause of appellee's injury was this intervening negligence of the driver of the Avery truck, we deem it wholly unnecessary to further discuss either the law of intervening proximate cause or further discuss appellant's contention that plaintiff was injured by reason of this intervening cause.
Counsel have entirely overlooked in their argument the fact that the truck in which plaintiff was riding was palpably overcrowded with men and tools and water kegs, and that by reason of this overcrowding there was not a reasonably safe place in which for the appellee to ride in said truck. The appellant directed that the truck be loaded as it was loaded; that it carry the men that went to work together with their tools back and forth.
It was a question for the jury to say whether or not the appellant was guilty of negligence in overcrowding the truck which was furnished appellee to be transported in. Under the facts in this case the jury could well have found, as they did find, that it was overcrowded; that it exceeded the capacity of men and tools that could be with reasonable safety placed therein; this conclusion the verdict of the jury supports.
The jury by their verdict accepted the version of the plaintiff as to how the injury happened.
In the end we find that counsel are driven from all contentions which they undertake to make under the facts in this case and their final contention is that the appellant would not be charged under the law with the duty of anticipating that the driver would meet another truck in the curve on this road and would probably swerve and go into the ditch in undertaking to pass another truck in the curves and in the narrow road.
The rule is that, if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury.
Russell v. Williams, 150 So. 528, 151 So. 373.
Counsel undertook to defend on the ground that the proximate cause of plaintiff's injury was the negligence of the driver in operating the truck and since the driver was a fellow servant he says that the defendant is not liable. This is the case made under count one of the declaration, and the lower court granted a peremptory instruction against appellee on that count. But in so far as counsel undertakes to argue that it was the negligence of the driver of the truck that proximately caused the injury to plaintiff and not any negligence of the appellant in furnishing him a reasonably safe place in which to ride in the truck or furnishing him reasonably safe means of transportation, the jury has spoken and has decided that issue and that question and that defense against appellant.
The fellow servant doctrine has no application to a case where the servant is, by express direction of the master or his superior agent, put, as an employee and after his employment for the day has actually been begun, in a place which is not reasonably safe for the pursuit of his employment.
Russell v. Williams, 151 So. 372.
Argued orally by C.F. Engle and Cecil Travis for appellant and by Joseph E. Brown and Luther A. Whittington for appellee.
Dave Harding, plaintiff in the court below, filed a declaration in two counts for a serious personal injury. The court granted a peremptory instruction for the defendant as to the first count; and submitted the cause to the jury on the second count. The jury returned a verdict in favor of the plaintiff for $12,500, upon which judgment was duly entered. From this judgment an appeal was prosecuted to this court.
The two counts of the declaration are very similar; the main distinction between them being that in the first count the negligence of the driver of the truck in which the plaintiff was riding is relied upon; while in the second count the principal ground relied upon is that the truck was not a safe place in which to ride, and that the plaintiff had to stand up while riding, with no means of protecting himself from accidents.
It is alleged in the first count that the truck in which the plaintiff and others were riding, in order to avoid collision with another truck going in an opposite direction, swerved at a point where the road curved sharply, with the result that the truck left the highway, going into a deep ditch on the right-hand side of the road, coming into violent contact with the bank and with a tree, or the root of a tree, as it did so. The plaintiff was thrown from the truck, breaking his back, and causing him to be paralyzed from that point down, with no control over the lower part of his body, or bodily functions.
The declaration charges that Weaver Co. was a corporation engaged in constructing a highway in Adams county, Miss., with an office and warerooms in the city of Natchez, and construction camps along the highway at various points; in connection with which work they maintained a number of motortrucks, together with other equipment and tools, and employed a large number of laborers; that on November 8, 1936, and for some time prior thereto, plaintiff was employed as one of these laborers; that the employees were carried to and from their work in trucks operating daily along the lower Woodville road, between Woodville and Natchez in addition to the transportation of supplies, drinking water, and equipment for use in connection with the work; that on the day mentioned, under his contract of employment whereby he was to be transported to and from his work, the plaintiff was being carried to his home in the truck.
It is charged that the truck in which the plaintiff and other laborers were riding at the time of the accident was equipped with an inclosed cab, separating the driver's compartment from the rest of the truck, with an open dump body behind it, in which the laborers were required to stand, the sides of which were only about twelve inches high, and which was not equipped with stakes, guard rails or handholds, by means of which the plaintiff and his companions could steady themselves; that on the bottom of the dump body were a number of axes, pickaxes, blades, and other sharp tools being carried to the city of Natchez; that the truck was being driven along an old narrow gravel road, known as a sunken road, about twenty feet in width, with many sharp curves and steep descents, and with high banks on either side, out of which, and at the edge of the road, grow large trees.
The plaintiff alleged that the corporation owed him the duty to operate the truck along the road at a reasonable and proper rate of speed, having regard to traffic and use of the highway, as well as the sharp curves; to have the motor vehicle under control, so as to allow free passage of other vehicles being operated along the highway; and to furnish him a reasonably safe place in which to ride in said truck. But that notwithstanding this fact, the driver of the truck, a servant of said corporation, negligently and wrongfully operated the truck in which the plaintiff and his companions were riding at a dangerous and unlawful rate of speed, about thirty-five or more miles an hour, at a point in the road where there was a sharp curve, failed to have the motor vehicle under control, and to remain to the right of the center of the road, or to keep a proper lookout for other cars using the highway; and while in the act of passing the sharp curve suddenly swerved violently in order to avoid collision with another automobile going in the opposite direction, left the road, and went into a deep ditch along the right-hand side thereof, striking the embankment and a tree with great force, which caused the plaintiff to be thrown out of the truck and against the tree or root, breaking his back and horribly mangling and crippling him; and from the injuries thereby inflicted he suffered great pain and was rendered helpless. He was taken to a hospital, where he lay a number of months under treatment of physicians and surgeons, suffering agony. About March 10, 1937, he was removed from the hospital to his home, where he has since remained in bed.
It is further charged that before this the plaintiff, twenty-seven years of age, was able-bodied and in good health; that because of lack of education he could earn his living only by manual labor; that as a result of his injuries he is now a helpless invalid, confined to his bed for the rest of his life, with his ability to earn a living permanently destroyed.
As stated, the second count of the declaration was in great part a repetition of the first, charging that the truck in which the plaintiff was riding was unsafe, that he was required to stand in the dump body thereof without any safeguards, repeating the allegations as to the height of the sides of the truck; and that the defendant failed to provide a reasonably safe place in which to ride; that the defendant required him to stand in the open dump body, loaded with tools; with a repetition of the statements in regard to the character of the road over which the truck was driven, and that the cab obstructed the view of the laborers; that on account of the sudden swerving of the truck at the curve the men were thrown about in the dump body of the truck, tripping over the load of tools in the bottom thereof, so that the plaintiff was violently hurled from the truck, breaking his back and otherwise injuring him, as has already been stated.
The proof showed that the sides of the dump body were twenty-three and a half inches above the floor level, which would come to the top of the shoulders of the men riding therein when sitting; that the men were not standing in the truck, or on the tools; that the truck was in perfect mechanical condition, and after the wreck or collision mentioned, moved on its own power. It was also shown that there was no cab on the truck, as was alleged in the declaration. The proof was conflicting as to whether there was a collision with another truck, going in the opposite direction; the driver of defendant's truck, and some others, testifying that the rear wheel of the truck in which the plaintiff was riding was struck by the trailer of a truck which it was attempting to pass. According to the testimony of others, there was no collision between the two trucks, but the driver of the truck in which the plaintiff was riding swerved to the right to avoid one, and went into a ditch, striking against the root of a tree growing in the bank of the highway as it did so.
There is also conflict in the evidence as to whether the front wheels were in the ditch with the rear weels on the shoulder of the road, or whether the hind wheels were in the ditch with the front wheels on the shoulder of the road; both positions having been testified to.
The plaintiff's injuries were of the most serious nature, rendering him totally and permanently unable to move the lower part of his body, paralyzed from his back down, without power to control the natural functions of his body, so that it is necessary for him to have constant attention, day and night.
We do not deem it necessary to set out in detail the testimony, for the reason that if the wreck or collision was occasioned by the negligence of the driver of the other truck, and without negligence on the part of appellant's driver, there would be no liability on the appellant. On the other hand, if it was caused by the negligence of the driver of the truck in which plaintiff was riding, the fellow-servant rule applies, and the master is not liable. The testimony shows that it was customary for men working on the highway to be transported as was done in this case, in trucks similar to the one used here, and that from sixteen to eighteen men were carried in these trucks, in the body of the dump. In the case of Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787, it was held that where the driver of a truck, in the employment of the common master, transported men in the truck to and from their work for the master, as a part of his duties under the contract, he was a fellow-servant of the men riding in the truck, also in the employment of the master; and that there was no liability on the master for the negligence of the driver. In the case of Ozen v. Sperier et al., 150 Miss. 458, 117 So. 117, it was held that an action against an employer and another for injuries resulting to an employee in a collision between his employer's truck in which he was riding, and the codefendant's truck, the evidence as to negligence of the employer in overcrowding his truck and using an unimproved highway was held insufficient for the jury, in view of the plaintiff's proof showing conclusively that neither of such alleged acts of negligence constituted proximate cause of injury, but that the injury was due to negligent loading, or to negligently driving the trucks of the codefendant, which was an independent, intervening cause. It was also held in this case that the master is not liable for injuries to employees resulting from the negligence of the driver, who is a fellow servant.
In Continental Casualty Co. et al. v. Pierce, 170 Miss. 67, 154 So. 279, it was held that an automobile owner was not liable for the injury sustained by employees through the negligence of other employees, driving the automobile, where the injured employee and the driver were both engaged in their employer's business, and were therefore fellow servants. It was also held in this case that the master of an automobile driver was liable to an employee who was a passenger for injuries sustained through the negligence of the driver.
The rule is therefore well established that where laborers are being transported by the master as a part of their employment, the motor vehicle being driven by another employee of the master, such driver is a fellow servant, and the master is not liable for his negligence.
In the case before us it is clear that the injury was not caused by negligence in regard to the truck, which was the kind in general use by people engaged in road construction work in transporting laborers to and from their work. The truck was in good condition, the laborers were being transported in the customary way, and the number in the truck did not exceed that frequently carried in similar instances. There seems to have been no connection between the height of the sides of the truck dump and the accident, and there was no negligence on account of the safe condition of the truck, from which the injury followed. The injury was caused either by the negligence of the driver of the truck, who was a fellow-servant of plaintiff, or by the trailer of the passing truck striking the truck in which the plaintiff was riding, and knocking it into the ditch, thus injuring the plaintiff and others who were with him. There is no dispute in the evidence as to the safe condition of the defendant's truck.
The injury did not result from any negligence in regard to the condition of the truck, but either from the negligence of the driver, a fellow servant, or from the negligence of the driver of the other truck; and in neither case was the appellant here legally responsible. It is true the appellant has suffered a horrible injury, rendering him unable to work and helpless to use himself for the rest of his life. But we can only deal with rights as we find them in the law; and we do not find here any negligence for which liability exists on the part of the defendant, the appellant here. It follows from what we have said that the peremptory instruction requested should have been granted. It is unnecessary to pass upon the other questions presented in this record.
The judgment of the court below will therefore be reversed, and judgment rendered here for the appellant.
Reversed and rendered.