Opinion
No. 33724.
June 5, 1939. Suggestion of Error Overruled July 7, 1939.
1. MASTER AND SERVANT.
An employer must use reasonably safe appliances and must exercise reasonable care, but he is not an insurer of the safety of his employees or of the work.
2. MASTER AND SERVANT.
A company employing a caterpillar tractor to remove stumps in connection with highway broadening project would not be liable for an injury sustained by its employee from the operation of the tractor unless the injury could reasonably have been foreseen by a reasonably prudent person.
3. MASTER AND SERVANT.
Evidence that deceased employee who was run over by caterpillar tractor used to move stumps off right of way at night in connection with highway broadening project went to sleep in a depression on right of way despite warnings of foreman and other employees not to do so, that tractor was being operated in customary way, and that it was sufficiently lighted for work for which it was being used, showed that employer was not liable for employee's death as having been caused by negligence of tractor driver.
APPEAL from the chancery court, of Jefferson Davis county; HON. DAN CURRIE, Special Chancellor.
Stevens Stevens and Bob Ray, all of Jackson, for appellants.
There is no liability in this case. Willie Knight, the deceased, came to his death as the result of his own negligence.
In L. N.R. Company v. Andrews, 171 Ala. 200, 54 So. 553, the court said that the master was under the duty to adopt and maintain an adequate system of lighting when he required his servants to work at night, but that in this respect, as in all others, the master is not an insurer of the safety of the servant against all possible injuries, and it was only the master's duty to exercise reasonable care to see that the place in which he requires his servant to work shall be as reasonably safe as is compatible with the nature of the work and the surroundings; that the master is in no way an insurer of the absolute safety of the appliances or machinery employed in the business and that all that is required is that he exercise reasonable care, such care as a reasonably prudent man would exercise, and when he has done this he is not responsible for injuries which may result either from the incompetency of servants or the safety of the machinery. The court stresses the rule that the relation of master and servant never implies an obligation on the part of the master to take more care of the servant than a reasonably prudent man may be expected to do for himself.
There is no evidence that the system of lighting here was different from that employed by other road contractors working at night or that anybody connected with the organization had any trouble about seeing or doing their work. It is in evidence that the Koehler light plants are adjustible and were adjusted this very night of the tragedy. It is undisputed that both the front lights of the tractor and the rear lights were burning and there is no evidence that those lights were insufficient for the normal operations of a road contractor working at night.
L. N.R.R. Co. v. Holland, 51 So. 365; Kelly v. Hines, 102 S.E. 921; Mansfield v. Richardson, 45 S.E. 269; Western Atlantic R.R. Co. v. Ferguson, 54 L.R.A. 802.
Willie Knight knew that his duty was to hook stumps at the back of the bulldozer that ran over him. His duties were in the rear of the machine and not in front of the machine. He knew that this heavy machine was going to and fro, and had made several trips that night, and notwithstanding he cast himself in a depression in the direct pathway of the machine and went to sleep. Could there be any way for the master to anticipate that the employee would be so foolhardy? The Supreme Court of Georgia has held that one who voluntarily sits down by railroad tracks and falls asleep in such close proximity thereto as to cause him, while asleep, to be struck and killed by a passing train is solely responsible for his injuries.
Kelly v. Hines, 102 S.E. 921; Parrish v. Atlantic Ry. Co., 29 S.E. 715, 40 L.R.A. 364; Sims v. Railroad Co., 28 Ga. 93; Raden v. Railroad Co., 87 Ga. 47; Railroad Co. v. Smith, 78 Ga. 694, 3 S.E. 397; Hanley v. Boston M.R.R., 190 N.E. 509; Eastman-Gardiner Hardwood Co. v. Chatham, 151 So. 556; Anderson-Tully Co. v. Goodin, 163 So. 536.
It is true that our Mississippi statute abolishes the doctrine of assumption of risk in all cases where the master is negligent. This does not, however, relieve the plaintiff of the burden of proof showing negligence, and where the facts disclose that the injury results from the reckless conduct of the servant and not from any negligence of the master, it is plain that there can be no recovery. Employers are not insurers of the safety of their laborers.
Seifferman v. Leach, 138 So. 563.
Where there are two ways of performing an act, one of which is safe, and the other negligent, and the servant, without coercion, chooses the negligent one, there can be no recovery if in performing the act he is injured. It has often been held that a master is not bound to take more care of a servant than the servant may reasonably be expected to take of himself.
Pennsylvania Co. v. Lynch, 90 Ill. 333; Missouri Furnace Co. v. Abend, 107 Ill. 44, 47 Am. Rep. 425; Karr Supply Co. v. Kroenig, 167 Ill. 560, 47 N.E. 1051; 15 L.R.A. (N.S.) 1114; 20 R.C.L. 120, sec. 102; Brown v. Coley, 168 Miss. 778, 152 So. 61; Buckeye Cotton Oil Co. v. Saffold, 87 So. 893.
We have tried to find a case involving a similar state of facts, but there is not a case in the United States that we have been able to find, and the very fact that there are no reported cases indicates that Martin Wunderlich and his company had no reason to anticipate that a servant would do such a thing. We have cited cases involving the same legal principles. After all the court must be guided by legal principles. The function of the judge is to apply the law to a given state of facts. The facts make the lawsuit, but legal principles determine liability. The law is supposed to be the embodiment of reason, and the very statement of this case to any fair minded man, we respectfully submit, demonstrates that there is no negligence of the master.
Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; J.J. Newman Lbr. Co. v. Dantzler, 64 So. 931; Martin v. Beck, 171 So. 14.
The sole and proximate cause of the injury was the deceased placing himself in a hole so that his body was submerged below the level of the ground.
Hammontree v. Cobb Construction Co., 152 So. 279.
The Supreme Court says that before the master is required to promulgate a law or rules or regulations for the protection of his employees, the work must be dangerous and complex, and the conditions which may arise must be uncertain and obsecure.
Brown v. Coley, 168 Miss. 778; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.
The Hammontree case is further authority on the proposition that even though the work is complex if the master uses or follows exactly the same system or method in doing his work that is being used and followed in the same business throughout the entire country, then he has exercised reasonable care and fulfilled every moral and legal obligation imposed upon him There is not one iota of proof before us that any other road contractor used or followed any different method of clearing a right of way.
Tatum v. Crabtree, 130 Miss. 462.
It is apparent in this case that Willie Knight knew, or should have known by the exercise of reasonable care, that the bulldozer would again come back over the right of way at its regular interval, and by Willie Knight casting himself on the ground in the pathway of the machine and going to sleep, he alone is responsible.
That no liability attaches on account of any negligence, real or assumed, of James H. Herring, the operator of the machine, is put beyond question in the following cases:
Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644; Barron Motor Co. v. Bass, 166 Miss. 786, 150 So. 202; Legrone v. Mobile Ohio R.R., 67 Miss. 592, 7 So. 432; Givens v. Railway Co., 94 Miss. 830, 49 So. 180, 22 L.R.A. (N.S.) 971; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.
On the finding of facts as made by the learned special chancellor, a decree should have been entered for the defendant and not the complainant
The finding by the chancellor that the master did not have adequate lights is not supported by the testimony.
The learned chancellor erred in overruling our motion to set aside the decree and enter a decree for appellants, instead of the complainant, and in the alternative to reduce the amount awarded the complainant as being excessive.
G.M. Milloy, of Prentiss, and Hall Hall, of Columbia, for appellee.
Appellants begin their argument with the statement that there is no liability in this case, and that there is no fundamental issue of fact in the case. Yet the first authority cited by appellants lays down the rule to be that when a master requires his servant to work in the night time he is under the duty of adopting and maintaining an adequate system of lighting, and that he is liable in damages to a servant injured in consequence of his failure to perform that duty.
L. N.R.R. Co. v. Andrews, 171 Ala. 200, 54 So. 553.
There is no question about the above being the law, and the rule is so well settled that a lengthy citation of authorities is wholly unnecessary.
IV Thompson on Negligence, sec. 3892; 39 C.J. 350, sec. 469.
Our position is that it is perfectly legitimate for a contractor to put this twenty ton engine of death on any job it desires and to operate it at night or any other time, but it is further our position that if he is going to use it at night, then he should light up the place where that thing is going to run so that the operator in charge will not be compelled to grope in the dark and endanger the other employees, and it is further our position that the contractor may use any means of lighting which he may desire, that is, that he may install Kohler plants to light the place, or he may put headlights on the machine to light up its pathway. If he uses Kohler lights they should be pointed in the right direction to illuminate the place of work, which was not done in this case, and if he uses headlights they should be so placed as not to be obstructed by a raised bulldozer blade, which was not done until after the tragic death of this negro boy. The theory of appellants seems to be that since a bulldozer is necessary in road construction, this fact abrogates the law requiring some kind of lighting system for the protection of the men at work on the job.
Appellants' own witness, Wiley Barnes, testified that deceased was where he was required to work when he was killed.
If in an accident both parties be guilty of negligence, then the question of what was the proximate cause of the injury is a question of fact.
I.C.R.R. Co. v. Bethea, 88 Miss. 132.
There can be no doubt here that the Chancellor was warranted in finding that the master was negligent in failing to furnish sufficient lights. The whole record strongly preponderates in that direction, and, this being true, it was a question for the Chancellor to determine whether such negligence contributed to the injury.
The duty to furnish lights grows out of and is a part of the duty to furnish a reasonably safe place to work. That duty is not based upon the proposition that there must be something adequate to work with, but is based upon the humanitarian doctrine of the law that human life is worth something and should be protected, and the duty is imposed by law for the safety of the laborer.
L. N. v. Andrews, 171 Ala. 200, 54 So. 553.
Appellants argue that they have not been able to find any other case involving a similar state of facts, and they say that this indicates that the master here had no reason to anticipate that such an injury would occur. The same argument might have been used in the first reported railroad accident or in the first reported automobile accident. The reason there is no reported case involving similar facts is that it is only in the last year or two that machines such as the one here in question have been operating at night. Night work on road construction jobs is something absolutely new and unheard of until only recently, but the rule requiring a master to exercise reasonable care to furnish sufficient lights for the safety of his employees working in the dark is a rule as old as the hills and applies with full vigor to modern changing conditions. In answer to this argument, the following language of this court in Pub. Service Corp. v. Watts, 150 So. 192, 168 Miss. 235, is applicable: "And it is not necessary, in considering this question of foreseeability, adopting a coined word which is not sometimes used, that the wrongdoer could have foreseen the particular injury, or the precise form or the particular manner in which the injury occurred. It is sufficient that the consequence of the negligence was the natural and probable result thereof, although it might not have been specifically contemplated or anticipated. Cumberland Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; and see the numerous authorities gathered in the notes 45 C.J., pp. 918-920."
As a matter of common knowledge it is a fact that any kind of engine will make more noise when pulling under a hard strain than when merely idling along. This machine was not pulling a stump or carrying a load at the time and therefore it was not under any strain whatsoever. Nevertheless appellants argue that deceased should have heard it approaching, and that since he failed to hear it, such failure, coupled with his being at the place where he was, was the proximate cause of his injury and death. However, before recovery can be denied it must appear that deceased's failure to hear and his act in being where he was were the sole proximate cause of the accident, and these things cannot be the sole proximate cause if the appellants were guilty of any negligence which contributed thereto, nor would it be necessary for the negligence of appellants to be the sole proximate cause. This is well settled law in Mississippi.
C. G.R. Co. v. Lee, 115 So. 782, 149 Miss. 543.
We say that the master did know that this negro boy was asleep at the place in question. Appellants' witness, Wiley Barnes, testified that the foreman, Mr. Vic Nelson, came along a short time before the accident and saw the deceased asleep and went on down toward the tractor. This knowledge on the part of the night superintendent was knowledge to the master so that it is undisputed that the master did know of his perilous situation and yet did nothing about it.
Magers v. O.H. C.C.R.R. Co., 165 So. 416, 174 Miss. 860.
It has long since been settled in this state that the surviving brothers and sisters, or mother and father, may recover in actions for wrongful death, the value of the deceased's society and companionship.
Sec. 510, Code of 1930; Y. M.V.R. Co. v. Beasley, 130 So. 499, 158 Miss. 370; Avery v. Collins, 157 So. 695, 171 Miss. 636; Gulf Refining Co. v. Miller, 121 So. 483, 153 Miss. 741; St. Louis S.F.R.R. Co. v. Moore, 58 So. 471, 101 Miss. 768; Jackson v. Port Gibson, 111 So. 828, 146 Miss. 696; Murray Chevrolet Co. v. Cotten, 152 So. 657, 169 Miss. 521.
Argued orally by J. Morgan Stevens, for appellant, and by Lee D. Hall, for appellee.
This was a suit brought as an attachment in Chancery against Martin Wunderlich and others, constituting a partnership trading under the firm name of the Martin Wunderlich Company, for the death of Willie Knight, an employe of the Martin Wunderlich Company. The Bank of Blountville, a resident corporation, was made a defendant, the other defendants being non-residents.
The deceased, Willie Knight, was employed with the crew engaged in working on a public highway contract, broadening the road. The Martin Wunderlich Company, at the time of the accident, was working at night, removing stumps and other matter from the portion of the highway to be broadened; and it was the duty of Willie Knight, the deceased, and another employe, to attach the cable of the tractor to the stumps to be removed — the power of the caterpillar tractor being used to move the stumps off the right of way, in order for the grading and excavating to be carried on.
The deceased and his companion had attached the cable to a stump, and the tractor was moving it away to a point some little distance from the right of way, which required something like 20 or 25 minutes to do this and return. The foreman was on the job, and had specified the stump next to be removed; and the employe and the operator of the tractor knew of the one selected. The deceased, Willie Knight, appeared to be sleepy, and the foreman had told him to get off the right of way if he were going to sleep — not to lie on the right of way, as the tractor would injure or kill him. Other employes also advised him, if he were sleepy, to go home and sleep, until he became accustomed to night work, in which he had been engaged only a few nights. Instead of doing as he was told, he went to sleep on the right of way, in a little depression, the main part of his body lying in the depression, with his head on one side thereof, and his feet on the other. He wore dark working clothes, one witness testifying that they were khaki colored, and another that he had on blue denim pants and brown shirt, and that he lay with his cap under his head. On the return trip to the next stump the operator of the tractor did not see the deceased as he lay on the right of way, and the tractor ran over him, crushing and killing him. This suit was brought to recover for this fatal accident.
The testimony shows that the place where the work was being done was lighted with two Koehler lights, one placed at one end and the other at the other end of the section of the road on which they were at work, facing in opposite directions to light the location on which the men were at work. The tractor was equipped with three lights, two in front and one in the rear. One of the witnesses testified that all these lights were of the same candle power, described as "32-32;" that one of the front lights was placed on the side of the tractor, and the other front light was elevated over the top of the tractor; the rear light making the third. The tractor was also equipped with a blade several feet long, and twenty-odd inches wide, located on the front, capable of being manipulated as needed, lowered or elevated. When lowered it was used either to push dirt or pull stumps or to remove obstructions from the path of the tractor, and when not in use it was elevated some inches above the ground. It was in an elevated position when this accident occurred. The operator of the tractor testified that he could see in front of the tractor, that the lights thereon were suitable for the use to which the machine was put; that on approaching the stump next to be removed he noticed that one of the employes was sitting on the stump, but did not see the other, and wondered where he was, deciding that he had probably gone for water, provided for drinking purposes in a barrel a short distance away, on the side of the road; that he did not see the deceased at the time he was run over, but that deceased was discovered by the other employe after the tractor had run over him and proceeded about thirty feet. The tractor was then stopped, and the other employe, the operator of the tractor, and others going to the body, found that the tractor had passed over his stomach. He was still alive, but died in a little while, some of the witnesses testifying that he was dead when they reached the body.
There was some testimony to the effect that the light on the right of the tractor, while it illuminated the pathway of the tractor for some distance on the level, did not shine immediately in front of the tractor because of the elevation of the blade. Only one witness testified to what could be seen from the driver's seat, on top of the tractor — to the effect that he could see in front of the tractor; that the light on top thereof was some six feet from the ground, that he could see the ground in front of him, but did not see the deceased lying in the pathway of the tractor. He stated that the tractor made a good deal of noise in its operation, several other witnesses testifying to that fact.
There was a verdict in the court below for the plaintiff in the sum of $3,000. The deceased had no father or mother, brothers or sisters, his only relative, as disclosed by the record, being a cousin who lived at a distance, with whom he was accustomed to meet and associate.
It is claimed that the tractor was negligently operated, and was insufficiently lighted, which did not render the place at which the work was being done at night reasonably safe. The evidence shows that the tractor had been used at other points in the county, that it was being operated in the customary way, and that it was sufficiently lighted for the character of work for which it was being used. In such cases the duty of the master is to use reasonably safe appliances; but he is not an insurer of the safety of employes or of the work. It is his duty to exercise reasonable care. In order to render the company liable for an injury sustained by its employe, the injury from the operation of its machine must be such as could reasonably have been foreseen by a reasonably prudent person.
In our opinion, the company could not reasonably foresee that an employe would deliberately lie down in the pathway of the tractor and go to sleep, especially as he had been directed to get off the right of way if he desired to sleep, and warned that if he went to sleep on the right of way or in the path of the tractor he would be killed. The body of the deceased was in such a position when the accident occurred as to render it difficult to be seen; and there is nothing, in our opinion, from which it could be held that the driver of the tractor was negligent in failing to see the body under the circumstances shown in the record.
We are therefore of the opinion that there is no liability on the part of the company for the unfortunate death of this employe; and therefore the judgment must be reversed and the suit dismissed.
Reversed and dismissed.