Opinion
No. 32874.
November 22, 1937. Suggestion of Error Overruled January 3, 1938.
1. MASTER AND SERVANT.
Where employee suing employer for injuries testified that accident occurred when conveyor loaded with empty boxes which fellow employee was pushing turned over on striking cleats on floor, testimony as to defective condition of floor because of rough and uneven places therein became immaterial, and it was error to embody such issue in instruction for employee on question of failure to furnish reasonably safe place to work.
2. MASTER AND SERVANT.
Master's failure to furnish safe place to work must constitute proximate cause of accident in order to furnish basis for employee's recovery of damages for negligence.
3. MASTER AND SERVANT.
Evidence that master failed to exercise reasonable care to furnish reasonably safe place to work because of presence of cleats on floor of box factory which allegedly caused conveyor loaded with empty boxes, which employee was pushing, to turn over, held insufficient to take issue to jury.
4. MASTER AND SERVANT.
Master's duty to furnish servant a safe place to work is not absolute, but master need only exercise reasonable care.
5. MASTER AND SERVANT.
Though law requires master not only to furnish servant reasonably safe place to work and to keep it reasonably safe, law does not require that place be kept absolutely safe at all times.
6. MASTER AND SERVANT.
Employer was only required to maintain factory floor in reasonably safe condition and guard against such accidents as reasonably prudent person under circumstances could have foreseen, as respects liability to employee injured when conveyor loaded with empty boxes turned over.
APPEAL from the circuit court of Adams county. HON. R.E. BENNETT, Judge.
C.F. Patterson, of Natchez, for appellant.
There is no evidence of negligence on the part of defendant employer to support verdict in favor of the plaintiff.
Bridges v. Jackson Elec. R. Co., 86 Miss. 584, 38 So. 788; I.C.R.R. Co. v. Fowler, 123 Miss. 826, 26 So. 460; New England Navigation Co. v. Luliano, 190 Fed. 551, 113 C.C.A. 23; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Cy. Burr Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235; Pack v. Northeast Cold Co., 145 Ky. 235, 140 S.W. 174; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Buckeye Cotton Oil Co. v. McMorris, 172 Miss. 99, 158 So. 799.
The overwhelming weight of the evidence clearly shows that plaintiff was furnished a reasonably safe place in which to work and that his injury, if any, was entirely due to his own negligence as a matter of law.
Hooks v. Mills, 101 Miss. 901, 57 So. 545; Anderson Tully Co. v. Goodwin, 174 Miss. 162, 163 So. 536.
The court erred in overruling defendant's motion for a new trial, in view of the overwhelming weight of the evidence showing no negligence of defendant.
Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191; Scarf v. Jackson, 216 N.Y. 598, 111 N.E. 242.
There is an entire lack of competent evidence show-in a causal connection between the accident and the injury complained of.
Tatum v. Crabtree, 94 So. 449; Denton v. Mammoth Spring Co., 105 Ark. 161, 150 S.W. 572; Collins v. Galliff Coal Co., 196 Ky. 517, 244 S.W. 887; Marlowe v. Kilgen, 252 S.W. 424; Davis v. Castelle, 257 S.W. 870; Husk v. Gunther Grocery Co., 153 Ky. 595, 156 S.W. 120; Malvern Lbr. Co. v. Sweeney, 116 Ark. 56, 172 S.W. 831.
Defendant was not an insurer of plaintiff's safety but fulfilled its duty when it furnished plaintiff a reasonably safe place to work in the exercise of due care.
Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279; Anderson Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536; Herren v. Tuscaloosa Water Works Co., 40 So. 55; Tallahassee Falls Mfg. Co. v. Taunton, 16 Ala. 578, 80 So. 152; Ford v. Tremont Lbr. Co., 123 La. 742, 39 So. 429; Herbert v. Kingston Lbr. Co., 128 La. 775, 52 So. 1021; Lutenbacher v. Mitchell-Boone Co., 136 La. 805, 67 So. 888.
The instructions given by the court for the plaintiff were erroneous in view of the overwhelming preponderance of the evidence that the floor where plaintiff was employed was reasonably safe, and that appliances used were not defective and were both similar and common to the industry.
Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans R.R. Co. v. Williams, 96 Miss. 376, 53 So. 619.
The court erred in refusing to give to the jury defendant's instruction to the effect that if plaintiff continued working for several days after his alleged injury without complaining of his injury and reporting it to the defendant, that the jury could weigh such fact in determining whether plaintiff had been injured as he alleged.
Jos. E. Brown, of Natchez, for appellee.
The evidence of the appellee was that before the boxes were moved they had already been stacked and loaded on the platform by the appellant in two stacks, twelve bales high each, the usual and customary method of loading employed by the appellant. Not a witness denies that this was the method employed. The entire testimony and evidence of the appellant with reference to an unsafe method of loading and stacking the bales upon the platform, or flat, described as dangerous and unsafe the stacking of bales twelve high in a single stack. Not a witness testified that it was unsafe to stack and load the conveyor in the manner and to the height as the appellee described the load which he was moving when he was hurt, that is to say, in two stacks, twelve bales high.
Our position is that it was brought out by the appellee, with the able assistance of the appellant, that the appellant had recognized its duty to keep this floor clean of just such trash as was under the jack when it overturned. They had recognized their duty and, as counsel for the appellant expressed it in his question, "Wilson Company had a colored man there to sweep it up." It is manifest that when the appellant had a colored man, there, to keep that particular portion of the floor clean it cannot escape liability on account of the failure of the colored man to do the very thing which should have been done and which Wilson Company employed him to do.
Finkbine Lbr. Co. v. Cunningham, 57 So. 916, 101 Miss. 292; J.J. Newman Lbr. Co. v. Dantzler, 64 So. 932, 107 Miss. 31; Gulf Refining Co. v. Ferrell, 147 So. 476, 165 Miss. 296; Hamilton Bros. v. Narciese, 158 So. 467, 172 Miss. 24.
There was ample evidence before the jury as to the worn and uneven condition of the floor and the presence of depressions therein at the exact scene and location of the injury. The jury had the right to say that this worn and uneven condition of the floor, so worn that one of the appellant's witnesses testified that it might break through, caused or contributed to the toppling of the bales and the infliction of the injury upon the appellee.
The appellant asks no instructions qualifying the statement of the rule with respect to the duty to furnish a reasonably safe place in which to work. The appellant having made no point on the statement of the law contained in the appellee's instructions cannot complain of them.
Bridges v. State, 154 Miss. 489, 127 So. 533; Rayl v. Thurman, 156 Miss. 8, 125 So. 912; E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350; Brush v. Laurendine, 150 So. 818, 168 Miss. 7.
The appellant cannot complain of the two instructions granted the appellee for the further reason that he asked, and procured, an instruction containing a similar statement of the law.
Wilson v. Zook, 13 So. 351, 69 Miss. 694; I.C.R. Co. v. Jones, 16 So. 300; Y. M.V. v. Schraag, 36 So. 193, 84 Miss. 125; Y. M.V. v. Williams, 39 So. 489, 87 So. 344; I.C.R. Co. v. Handy, 66 So. 783, 108 Miss. 421; Clisby v. M. O.R. Co., 29 So. 913, 78 Miss. 937; Hinton v. State, 91 So. 897, 129 Miss. 226; Edwards v. Cash, 126 So. 33, 156 Miss. 507; Y. M.V.R. Co. v. Wade, 139 So. 40, 162 Miss. 699.
Under the entire record we earnestly submit to the court that there was ample evidence that the floor was, on account of the worn and uneven places and depressions, unsafe; that it was further unsafe on account of the presence of trash and cleats and that the appellant had a man there at the place of the injury to sweep it up, and that it was not swept up. We submit to the court that the evidence offered by the appellant did not contradict this; that their own manager, Mr. Bronn, who testified, did not by a line or a syllable contradict the appellee's proof as to the dangerous condition of the floor. We submit to the court that the record discloses without dispute that the manner of loading, and the height of the load of bales were that which was customary and required by the appellant. We submit to the court that the injuries inflicted upon the appellee, his pain, suffering and loss of earning power were proximately caused by the negligence of the appellant.
We submit to the court that the issue of fact was fairly presented to the jury and it affords the appellant on ground of complaint that the jury believed the testimony of the appellee and did not believe certain of the testimony offered by the appellant, particularly the testimony of the witness, Pat, in its incredible features.
Appellee recovered judgment in the circuit court of Adams county for damages in the sum of $1,500, on account of a personal injury to his shoulder and arm, which was sustained, according to the finding of the jury, while working as an employee of the appellant, Wilson Co., Inc., at its box factory located at Natchez, Miss. The case is predicated on the alleged failure of the employer to furnish the employee a reasonably safe place to work, and a safe and suitable appliance with which to do the work in which he was engaged. It was shown, however, without any dispute in the testimony, that the appliance in question was an approved type and standard equipment, commonly used in all box factories, and was not a defective, dangerous, or unsafe appliance. Hence, the only issue to be decided is whether under the facts disclosed by the testimony the master failed to exercise reasonable care to furnish the servant a reasonably safe place to work, and whether such failure, if any, was a proximate cause of the injury and damages sued for.
The proof discloses that the appellee's work consisted in the main of placing the ends in the boxes being manufactured from lumber and lumber veneer in the plant of the appellant; and that on the occasion in question it became necessary, as a part of his duties, for him and a fellow employee to move some empty boxes out of the way and to another part of the factory building. The floor space of the plant covered a large area, and the proper and customary method of moving the boxes was to stack them in bales on a conveyor or roller platform, commonly called a "roller-jack," each bale containing about ten flat boxes, and the conveyor consisting of a platform about thirty inches wide and four or five feet long with a steel frame underneath and under which were four iron wheels, seven inches in diameter, on an axle approximately seven inches in length between the front wheels and about fifteen inches in length between the rear wheels. The boxes were then placed on the conveyor in two stacks, so that one would support the other, and they covered slightly more than the entire platform. It then became the duty of appellee to hold and steady the stacks of boxes on the conveyor while a fellow employee pulled it across the building to where they were going to be unloaded.
Appellee testified that on the occasion in question the conveyor, which he says was loaded with boxes in the proper and customary manner, was moved and rolled by him and his fellow employee along the floor of the plant for a distance of approximately sixty or sixty-five feet when the boxes fell and injured his shoulder, at a time when, as he testified, "we were carrying the load along and Patt was pulling the jack, and we took them back of the mill and there were some cleats I noticed afterwards and as we were fixing to back up, it hit some cleats and caused the load to turn over on me and bruise my shoulder, and I caught myself." It is shown that this load of boxes, including the height of the conveyor, was at least seven feet high from the floor to the top. The testimony of the appellant shows that the boxes were stacked by the appellee and his fellow employee on the conveyor in only one stack, instead of the two stacks required for the proper and safe transportation thereof. The appellee testified, however, that they had been stacked already by some one else, in the usual and customary manner, when they went to get and move them, and that they were not improperly stacked. Appellee further stated, in substance, however, that no one ordered him to assist in moving the conveyor loaded with the boxes stacked that high, and that there was nothing to prevent his taking off some of the boxes from the stack before attempting to move the conveyor.
There is considerable testimony to the effect that the floor of the building was worn, rough, and uneven in places, but the proof is indefinite and uncertain as to the depth and size of any depression in the floor, or as to the extent of any worn, rough, and uneven surface, at the point where the accident occurred, and the testimony is insufficient to establish a causal connection between the existence of such defects in the floor and the injury complained of. Moreover, the appellee's own explanation, hereinbefore quoted, of how the accident occurred, renders all the testimony wholly immaterial in regard to the condition of the flooring itself; and it was error for this issue to have been embodied in an instruction on behalf of the appellee on the question of failure to furnish a reasonably safe place to work, since it is necessary that such failure shall constitute a proximate cause of the accident and injury complained of in order to furnish a basis for a recovery of damages for negligence.
Finally, therefore, the point for decision here in determining whether or not the appellant was entitled to the peremptory instruction asked for is whether or not there was a failure on the part of the master to exercise reasonable care to furnish the servant a reasonably safe place to work, in that appellant permitted the presence of the cleat or cleats on the floor of its factory at the time complained of, if it can be said that they were a proximate cause of the injury sued for. It is not shown whether the cleat or cleats were fastened down or were loose on the floor; whether they had been there for a week, a day, an hour, or for only a few minutes; whether the employer knew, or had been afforded sufficient opportunity to learn, of their presence on the floor prior to the accident in question; whether they were there, and permitted to remain there, because of negligence on the part of the employer, or as an ordinary incident to the progress of the work of cutting the lumber and veneer into proper lengths inside the factory building for use in the manufacture of boxes; whether they were of an appreciable size and thickness; whether the appellee was performing, or attempting to perform, his duty in regard to holding and steadying the boxes on the conveyor at the time they fell; whether the appellee and his fellow servants were exercising any degree of care as to the manner of moving and rolling the conveyor on which the boxes were loaded at the time they became unbalanced and fell; and whether it was necessary in the exercise of reasonable care by the said employees for their own safety that the conveyor should be caused to run over or against such cleat or cleats in carrying the boxes to their destination, instead of going on either side of them.
While it is true that the jury decided the question presented by the conflict in the testimony as to whether the boxes were properly loaded and stacked on the conveyor, and as to whether they were in fact loaded thereon by these two employees themselves, yet there were no facts testified to or disclosed on the trial to enable the jury to intelligently pass on the other questions hereinbefore mentioned so as to determine whether the appellant was guilty of any actionable negligence in allowing the presence of the cleat or cleats on the floor at the time of the accident, as constituting a failure to exercise reasonable care to furnish appellee a reasonably safe place to work and a proximate cause of the injury.
Moreover, it is shown that appellee had been working in this factory for a period of six years, and had, on numerous occasions, stacked this type of box on such a conveyor and moved them to other parts of the building. And it was shown, without dispute, that boxes were being continually moved over this flooring, both day and night, and the proof shows that none of them had ever become unbalanced or had fallen from such a conveyor when being moved prior to the occasion complained of, except in instances where they were improperly loaded by placing one stack on the platform of the conveyor, instead of two as instructed.
It was also shown by the testimony of appellee's fellow employee, and expressly admitted by the appellee, that at the time these boxes fell, appellee was asked whether they struck him, and he replied, "No, they did not strike me;" and that he further admitted that he then in fact denied to his fellow employee that the boxes struck him. The fact that appellee made these statements at the time of the alleged injury, and admitted having made them when on the witness stand, was never explained or retracted, notwithstanding that he later testified that the boxes struck him on the shoulder when they fell. At any rate, the testimony shows, without contradiction, that he worked throughout the remainder of that day and through the next day, and then was off for the Christmas holidays, returning to work on the following Monday and continuing through Wednesday, and then was operated on at a local hospital on the following Saturday for an abscess on his shoulder, which he testified was caused by the injury complained of, and which the jury adopted as true. Later he worked at another box factory for about three weeks, but had not worked any during the three weeks prior to the trial in the court below, due to the fact that the night crew of which he was a member had been laid off.
Assuming therefore, since the jury has so found, that the appellee sustained the injury and damages complained of by reason of the falling of the boxes in question, but recurring to the question of the liability of the appellant for the injury and damages resulting therefrom, it was held in the case of Hooks v. Mills, 101 Miss. 91, 57 So. 545, that the duty to furnish a safe place to work is not absolute, but it is only required that the master exercise reasonable care to do so; and while it is true, as held in the case of Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916, that the law imposes on the master not only the duty of furnishing the servant a reasonably safe place to work, but also the duty of keeping it reasonably safe, nevertheless the law does not require that the place be kept absolutely safe at all times. And the duty of the master in this regard was restated in the recent case of Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277, 279, as follows:
"It is the universal rule wherever the common law prevails that the duty of the master in regard to tools, equipment, and places to work is not that of an insurer, is not an absolute duty, but is simply to exercise reasonable care to furnish the servant with reasonably safe tools and appliances, and likewise as to a safe place to work. Gulfport Creosoting Co. v. White [ 171 Miss. 127], 157 So. 86, 87.
"The rule is that the master is not required to furnish the newest, best, and safest machinery, appliances, and places to work, but his obligation is met when he exercises reasonable care to furnish such as are reasonably safe and suitable for the purpose had in view. Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 353, 128 So. 98.
"In order that a person, doing a particular act which results in injury to another, shall be liable therefor, the act must have been of such character and done in such situation that the person doing it should have reasonably anticipated that some injury to another will probably result therefrom. Actionable fault on the part of a defendant must be predicated on action or nonaction, accompanied by knowledge, actual or implied, of the facts which make the result of his conduct not only a probable result, but a result also which he should, in view of those facts, have reasonably anticipated. Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842."
Appellant was only required to maintain its floor in a reasonably safe condition and guard against such accidents as a reasonably prudent person, under the circumstances testified to, could have anticipated or foreseen. Therefore, under the rule announced in the foregoing authorities, it becomes necessary to hold, under the facts of the present case, that the appellant was entitled to the peremptory instruction asked for.
Reversed, and judgment here for appellant.