Opinion
No. 26976.
May 28, 1928.
1. MASTER AND SERVANT. Evidence warranted jury's finding that carpenter working on box cars was injured because of railroad's failure to furnish reasonably safe place to work.
In action by railroad employee for injuries sustained while working as carpenter in work of converting box cars into a storeroom and office when struck by tie-rod driven through car by employees working on inside, evidence warranted jury's finding that plaintiff was injured because of failure of master, the railroad company, to furnish him a reasonably safe place to work at time he was injured, and that failure to furnish safe place was proximate cause of injuries.
2. MASTER AND SERVANT. It was master's nondelegable duty to warn servant working on box car of impending danger growing out of work.
Where plaintiff was working as carpenter on scaffold on outside of railroad box car taking off angle irons, it was duty of master to warn him of impending danger when employee working on inside of box car drove tie-rod through car, resulting in injury to plaintiff, and master could not protect itself by undertaking to delegate such duty to servant.
APPEAL from circuit court of Panola county, First district; HON. GREEK L. RICE, Judge.
H.D. Minor, Chas. N. Burch and C.H. McKay, for appellant.
No liability unless absence of safe place to work was proximate cause of injury. In practically every case of injury to an employee it develops that if he had been somewhere else he would not have been hurt. In other words, in every instance the injured employee happened to be in an unsafe place. But that does not furnish a basis of recovery where the proximate cause of the injury was not the unsafety of the premises but some overt act from another source. This is well illustrated by the case of Railroad v. Bishop, 76 Miss. 758. There, a section hand, while riding on a car, "over his protest, was required by the section foreman to sit on a plank placed on the hand car to be used for a seat and hold a keg while the car was being run." While crossing a bridge, the plank on which deceased was sitting struck the lever used to operate the drawbridge, this lever having been negligently left in an upright position by a fellow servant, as a result of which he was knocked from the car into the water and drowned. The court reversed a judgment for the plaintiff on the ground that "use of the plank was not the cause of the injury complained of;" that the cause of the injury was the act of a fellow servant of the deceased in charge of the drawbridge. The proximate cause of the injury in this case was the act of plaintiff's fellow servant, Williford, in stricking the tie rod and driving it against plaintiff's body. The place was a mere incident. In a case quite similar in its facts, the principle of the case just cited was applied by the Federal supreme court. A section foreman in charge of a hand car had his section hands on the car and gave orders to the plaintiff, one of the laborers who was with him on the hand car, that he should not look back to watch for a train as he (the foreman) would watch and give warning. Through the negligence of the foreman in failing to watch and give warning the plaintiff was injured. Martin v. Railroad, 166 U.S. 403; Wood v. Potlatch Lbr. Co., (C.C.A.) 213 Fed. 591, is illustrative of our contention. Plaintiff, employed by defendant in the operation of a sawmill, was directed to assist in making repairs in the brick work about the base of a refuse burner. While so engaged, he was injured by a piece of timber thrown from the conveyor attached to the burner through the negligence of F., who with two assistants had just completed the installation of a new sprocket wheel at the top of the conveyor. The argument for plaintiff was that the accident was due to the master's failure to provide a reasonable safe place to work — a duty which he could not shift. The court denied this contention and affirmed a judgment for the defendant. The same principle was recognized and applied in Railroad v. Williams, 96 Miss. 375. Under this decision, the instruction given for plaintiff in the instant case (quote supra, p. 16) was clearly error and there should have been a peremptory instruction for defendant.
Master's duty as to safe place of work does not apply to transitory peril nor to dangers arising during the course of the work. This principle finds recognition in all the authorities only a few of which need to be referred to. Cybur Lbr. Co. v. Erkhard, 118 Miss. 401, a tong man operating a skidder in an open forest, was injured while walking to slacken a line — being struck by a broken tree falling from its stem. A judgment for plaintiff was reversed and suit dismissed. The court quoted from Morman v. Wabash R. Co., 158 Ill. App. 244, to the effect that where the master has provided a reasonably safe place for the servant to work and, in the prosecution of that work changes are produced in the conditions of the place. "The rule has no application where the master does not make or create the conditions but they are created by the progress of the work and the men engaged in it."
In Shipbuilding Co. v. Carter, the court, in denying liability, said: "We think that the rule which requires the master to furnish a safe place to work does not apply to cases where the prosecution of the work itself makes the place and creates the danger. The prosecution of the work in the instant case necessarily changed the place to work as the work progressed." Internat. Co. v. Carter, 121 Miss. 103. The court quoted with approval from Miller v. Moran, 39 Wn. 631. In Hercules Powder Co. v. Hammack, 145 Miss. 304, the plaintiff, an employee, was injured while he and the foreman under whom he was working were engaged in pulling up a stump by means of a cable attached to a tractor. The employee claimed that the stump was pulled from the ground by the tractor before he had given the signal to begin pulling as a result of which he was struck by a large root attached to the stump and thereby violently jerked from the ground. The court held that the proximate cause of the accident was the negligence of a fellow servant. G.M. N.R.R. Co. v. Brown, 143 Miss. 890, is in point. The court, reversing a judgment for plaintiff and entering a judgment for defendant, quoted from the opinion in Armour v. Hahn, 111 U.S. 313, later referred to ( infra p. 33) and quoted also from Kentucky Coal Co. v. Nanch (C.C.A.), 165 Fed. 44). A leading case in Wisconsin dealing with a situation like this is Knudsen v. Stone Co., 145 Wis. 394. Master's duty to provide safe place does not require a safe condition at every moment so far as safety depends upon due performance of the work by the employee and his fellows. Armour v. Hahn, 111 U.S. 313; G.M. N. Ry. v. Brown, 143 Miss. 890. This view of the case is thoroughly borne out by the opinion in a recent case in the circuit court of appeals for the Fifth circuit. Gulf Transit Co. v. Grande (C.C.A.), 222 Fed. Rep. 817, 820. The case of Haas v. American Car Co., 157 S.W. 1036, is quite pertinent. See, also, Goransson v. Mfg. Co., 186 Mo. 306; Lewinn v. Murphy, 63 Wn. 356; Dobbins v. Brown, 119 N.Y. 188.
Analogy to rule of simple tool. This rule is well settled in Mississippi that the master is under no duty, as respects simple tools, to furnish the servant with a safe tool, the servant's knowledge and judgment in such case being equal to the master. Allen v. Yarbrough, 133 Miss. 652; Wausau Lbr. Co. v. Cooley, 130 Miss. 333; Bear Creek Co. v. Fountain, 130 Miss. 436; Tatum v. Crabtree, 130 Miss. 473; Wood v. Lumber Co. (C.C.A.), 213 Fed. 591; Deye v. Tool Co. (C.C.A.), 137 Fed. 480.
Failure to promulgate rules. The principal, if not the sole reliance of the plaintiff in this case is on the proposition that the master was negligent in failing to promulgate rules and regulations as to the conduct of the work, as a result of which the place of work was unsafe. The cases of Coast Ship Co. v. Yeager, 120 Miss. 152; and Benton v. Finkbine Lbr. Co., 118 Miss. 558, are cited. Our answer is that the rule in question does not apply where the work is not complicated or intricate but is simple and involved only the injured servant and his co-worker. Wood v. Lumber Co. (C.C.A.), 213 Fed. 591; Deye v. Tool Co. (C.C.A.), 137 Fed. 480, 18 R.C.L. 573, 574, sec. 80; Boyer v. Eastern Ry Co., 87 Minn. 367, 92 N.W. 326; Tatum v. Crabtree, 130 Miss. 473.
This court, in the Tatum case, referred to and distinguished the earlier case of Coast Ship Co. v. Yeager, 120 Miss. 152, reviewing and quoting from the cases above cited and the further case of Olsen v. Lumber Co. (C.C.A.), 100 Fed. 384. The principal reliance of the plaintiff — almost his sole reliance, indeed — is the case of Coast Ship Co. v. Yeager, 120 Miss. 152, and the case of Benton v. Finkbine Lumber Co., 118 Miss. 558, the latter decision being responsible for the former. In the former case Judge Stevens who wrote the opinion indicated a doubt as to the soundness of the latter. In Hercules Powder Co. v. Williamson, 145 Miss. 172, the employee's duty was to bore holes in pine stumps, put pieces of dynamite therein with fuses attached and then light the fuses so as to blow up the stump. This meant that pieces of wood would be hurled through the air, four, five or six hundred yards. It was held that the lower court was correct in refusing the defendant's motion for a peremptory instruction the ground of the holding being — not that the master had failed to furnish a safe place to work, but that he was negligent in his method of using dynamite; the case of Evans v. Brown, 141 Miss. 346, was that of an employee injured by an explosion of dynamite. Judgment for the defendant was reversed on the ground that a master using dynamite is under a very heavy duty to warn employees and to make precautions for their safety. That the fellow-servant rule in cases like that here involved is in full force and effect in Mississippi will scarcely be denied. Edwards v. Lumber Co., 111 Miss. 378, 384; So. Lbr. Co. v. May, 138 Miss. 27; Gt. So. Lbr. Co. v. Hamilton, 137 Miss. 55. That the plaintiff and Williford (the man who struck the iron rod) were fellow servants is also probably beyond controversy. Gulf Transit Co. v. Grange (C.C.A.), 222 Fed. 817, 820, reviewed supra, pp. 34-35; Ocean S.S. Co. v. Cheeney, 86 Ga. 278; Martin v. Railroad, 166 U.S. 339; Cybur Lbr. Co. v. Erkhart, 118 Miss. 418; G.M. N. Ry. v. Brown, 143 Miss. 890; Railroad v. Bishop, 76 Miss. 761. In view of the foregoing we ask that the judgment of the court a quo be reversed and a judgment for the defendant be entered here.
W.H. Watkins and James McClure, for appellee.
We shall adopt the same order of argument as was chosen by the appellant in its brief. First: Was appellee injured as the proximate cause of the negligence of a fellow servant or as the proximate cause of the appellant's negligence in failing to furnish him a reasonably safe place in which to work? The case at bar is attempted to be likened by the appellant to a situation where one servant is careless in his work and drops a hammer on another servant or in handling lumber or other material in such a way that the same strikes his fellow servant. Of course, under such a situation, it is the negligence of the servant which caused the injury and, we recognize the force of appellant's argument on this sort of a situation that the master is not liable — because of the negligence of a fellow servant. In the case under review, the appellee bottomed his liability against the appellant on the legal duty which appellant owed him to furnish him with a reasonably safe place in which to work, which is a nondelegable duty, one that the master is bound to discharge, and on the further duty of the appellant to keep it safe. As said by our court in the case of Gulf M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 504, when the doctrine of the reasonably safe place to work arises — the fellow servant doctrine has no application. If the master requires this servant to work on a scaffold, even though the scaffold itself is safe, and if, he is required to work under a situation, which makes his place of work dangerous on account of the fact that he is liable to be injured by some object, which is set in motion by the master, and of which he is ignorant and has no means of finding out for himself, then, the situation is such the master is in duty bound to warn him of the dangers so that he can protect himself. If the master, had given appellee some warning in the case at bar, the injury would have been averted. This was his duty, and he failed in this. Our own court has placed this duty on the master in no uncertain terms and a citation of few of these cases will be sufficient to make the differentiation clear. A. V.R.R. Co. v. Groome, 52 So. 703; Murray v. Drug Co., 100 Miss. 269; Edwards v. Lumber Co., 113 Miss. 383; Labatts Master Servant (2 Ed.), section 1110; Benton v. Finkbine Lbr. Co., 118 Miss. 558; Finkbine Lumber Co. v. J.B. Cunningham, 101 Miss. 292; Coast Ship Co. v. Yeager, 120 Miss. 152. The doctrine of the unsafe places as compared with that of the rule of the fellow servant is explained by our court in the case of Gulf M. N.R. Co. v. Brown, supra. In light of these adjudicated decisions it was the duty of the appellant company to inform the appellee of dangers which he himself had no means of ascertaining, that duty was ever present, continuing and nondelegable upon the part of the appellant company, and it is absurd to say that the appellant can shield itself in failing to perform this duty towards appellee, by saying that the appellee was injured because of the act of a fellow servant, who struck the blow to the iron that caused his injury. Appellant directed the servant into a place of work; this place of work was directly in front of a large iron beam which was required to be removed from the wall of the car, upon which appellee was directed to work. We shall take up the next point argued by appellant. Master's duty as to safe place of work does not apply to transitory peril. We recognize the rule announced by our court in the case of Shipbuilding Co. v. Carter, 121 Miss. 103, and in Cybur Lumber Co. v. Erkhart, 118 Miss. 401. This rule has no application to the facts in this case, the appellee was not injured or hurt because of his conduct in performing any work in behalf of the master. In truth, his place of work was not changing nor was he moving about in the performance of his work, he was hurt as shown from the statement of facts while he was occupying a sitting position, and while performing work for the appellant, by being struck with an iron rod driven against his body from the inside of the car to the outside, where he was seated, without notice or warning. Our court would not recognize this same doctrine in Benton v. Lumber Co., 118 Miss. 558. The fact in Hercules Powder Co. v. Hammack, 145 Miss. 304, cited by appellant has no application to the facts in the instant case. The doctrine of the unsafe place of work was not presented to the court and the same was not passed on in this case.
In G.M. N.R. Co. v. Brown, 143 Miss. 890, cited by appellant, the appellee was employed in the work of making the appellants wharf safe, and the very work he was doing created the place of work, made it change from place to place. A complete answer to the appellant's argument on the theory of changing conditions of the place of work is met by Ship Co. v. Yeager, 120 Miss. 151, supra. Anology to rule of simple tool. The work in which appellee was engaged at the time of his injury certainly could not be compared to simple work, such as constructing a hen house, or likened to a situation where two men were unloading hay from a wagon. What is simple about it? How was the appellee in this case to know or what chance did he have of knowing when the rod was to be driven out. Of course the rod might be termed a simple rod. That is not the test. Failure to promulate rules. Our own court has established its own precedents in reference to this work, in the following cases, which have heretofore been reviewed, namely: Edwards v. Lumber Co., 113 Miss. 378; Benton v. Lumber Co., 118 Miss. ___; Ship Co. v. Yeager, 120 Miss. ___.
Judge ANDERSON, speaking for the court in the case of Veney v. Samuels, 107 So. (Miss.) 517, states the true rule to be as follows: "Under the law, it was not necessary that appellant should have anticipated the particular injury that resulted from the condition of the truck, but only that an injury of some kind might result therefrom to a servant." The only question to be decided by the court is, for the appellant.
Watkins, Watkins Eager, also filed an elaborate brief of one hundred pages for appellee citing the following authorities:
Point 1. Duty to furnish appellee reasonably safe place to work, duty of appellant and nondelegable to fellow servant, and negligence in respect thereto attributable to appellant. Miss. Cotton Oil Co. v. Ellis, 72 Miss. 191; Bradford v. Taylor, 85 Miss. 409; A. V. Ry. Co. v. Groome, 97 Miss. 201; Murray v. Natchez Drug Co., 100 Miss. 260; Edwards v. Haynes Lbr. Co., 113 Miss. 378; Benton v. Finkbine Lbr. Co., 118 Miss. 558; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; Central Lbr. Co. v. Porter, 139 Miss. 66, 103 So. 506. Rule announced by supreme court of United States in accord with the foregoing decisions. Standard Oil Co. v. Brown, 218 U.S. 78, 54 L.Ed. 939. Haskell Barker Car Co. v. Trzop (Ind.), 128 N.E. 401; McClintick-Marshall Const. Co. v. Forgy, 246 Fed. 193; Kennedy v. Grace Hyde Co., 92 Fed. 116, affirmed, 99 Fed. 679, 40 C.C.A. 69; Baird v. Reilly, 92 Fed. 884, 35 C.C.A. 78; Ondis v. Great Atl. Pac. Tea Co., 82 N.J.L. 511; 81 A. 856, 46 L.R.A. (N.S.) 777; Hendrickson v. United States Gypsum Co. (Ia.), 9 L.R.A. (N.S.) 555; American Car Foundry Co. v. Rocha, 257 Fed. 297; Christ v. Wichita Gas Elec. L. P. Co. (Kans.), 83 P. 199; Schminkey v. Sinclair Co. (Ia.), 114 N.W. 612; Fitzgerald v. International Flax Twine Co. (Minn.), 116 N.W. 475; Cook v. Atlas Portland Cement Co. (Mo.), ( 263 S.W. 1027; Stewart v. Stone Webster Eng. Corp. (Mont.), 119 P. 568; Giercoak v. N.W. Fuel Co. (Wis.), 125 N.W. 436; Murray Houston v. Car Wheel Mach. Co. (Tex.), 222 S.W. 219; Stocks v. Leavenworth Terminal Ry. Co. (Kans.), 146 P. 1178; Coffeeville Vit. Brick Tile Co. v. Shanks (Kans.), 76 P. 856; Mumford v. Penn. Ship Rep. Co. (Penn.), 107 A. 371; Dorsett v. St. Paul Tacoma Lbr. Co. (Wash.), 82 P. 273; Hamm v. Beltendorf Axle Co. (Ia.), 125 N.W. 186; Keller v. White River R.R. Co. (Wash.), 119 P. 4; Maloney v. Stetson Post Lbr. Co. (Wash.), 90 P. 1046.
Point 2. Even if true that Williford was a fellow servant, whose negligence contributed to appellee's injury, yet if the negligence of the fellow servant concurred with that of master in failing to furnish appellee reasonably safe place to work, appellant was liable therefor, and judgment should be affirmed. Kreigh v. Westinghouse, 214 U.S. 249, 53 L.Ed. 984.
Point 3. The rule exempting master from liability for injuries arising in progress of construction work has no application in this case. Cases cited by appellant's counsel are differentiated from case at bar. Ship Building Co. v. Carter, 121 Miss. 103; R.R. Co. v. Brown, 143 Miss. 890; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615. Rule announced in 3 Labatt, 924, with qualifications, page 2472. Cases cited by Labatt in support of limitations on rule, Note 6, Vol. 3, par. 924, page 2472; Reid Coal Co. v. Nichols (Tex.), 136 S.W. 847; American Window Glass Co. v. Noe, 158 Fed. 777; Barnett R. Co. v. Schlapka, 208 Ill. 426, 70 N.E. 343; Consol. Kans. City Smelt. Ref. Co. v. Scharber, 71 Kans. 700, 81 P. 476; Leidke v. Moran Bros. Co., 43 Wn. 427, 86 P. 646; Tenn. Coal Iron Co. v. King, 50 So. 75; Mommoth Vein Coal Co. v. Looper, 87 Ark. 217, 112 S.W. 390; Murch Bros. Con. Co. v. Hays, 88 Ark. 292, 114 S.W. 697; Bird v. Utica Gold Min. Co., 2 Cal.App. 674, 84 P. 256; Green v. Babcock Bros. Lbr. Co., 130 Ga. 469, 60 S.E. 1062; Casey v. Kelly-Atkinson Contr. Co., 240 Ill. 416, 88 N.E. 982; Smith v. Ill. Collieries Co., 155 Ill. App. 148; Pressed Steel Car Co. v. Herath, 110 Ill. App. 596; affirmed, 207 Ill. 576, 69 N.E. 959; Wahlquist v. Maple Grove Coal Mining Co., 116 Ia. 720, 89 N.W. 98; Nugent v. Cudahy Packing Co., 126 Ia. 517, 102 N.W. 442; Martin v. Des Moines Edison Light Co., 131 Ia. 734, 106 N.W. 359; Clark v. Johnson Co. Tel. Co., 146 Ia. 428, 123 N.W. 327; Hamm v. Batterdorf Axle Co., 147 Ia. 681, 125 N.W. 186; Griffin v. Fredonia Brick Co., 84 Kans. 247, 114 P. 217; Owensboro v. Gabbert, 135 Ky. 346, 122 S.W. 178; Proulx v. J.W. Bishop Co., 204 Mass. 130, 90 N.E. 539; Willis v. Plymouth Tel. Exch. Co., 75 A. 877; Reed v. Missouri K. T.R. Co., 94 Mo. App. 379, 68 S.W. 364; Ft. Smith W.R. Co. v. Ketis, 26 Okla. 697, 110 P. 661; Lone Star Lignite Min. Co. v. Caddell, 134 S.W. 841; T. P.R. Co. v. Tuck, 103 Tex. 72, 123 S.W. 406; Etheridge v. Gordon Constr. Co., 62 Wn. 256, 113 P. 639; McLeod v. Chicago M. P.S.R. Co., 65 Wn. 62, 117 P. 729; Dumas v. Wallville Lbr. Co., 64 Wn. 381, 116 P. 1091; Gorseger v. Burnham, 142 Wis. 486, 125 N.W. 914; Schmidt v. J.G. Johnson Co., 145 Wis. 49, 129 N.W. 657; Rocky Mt. Bell Tel. Co. v. Bassett, 178 Fed. 768; Colo. Midland R. Co. v. Naylon, 17 Colo. 501, 30 P. 249; 39 Corpus Juris, 632; American Car Foundry Co. v. Rocha, 257 Fed. 297; Hamm v. Axle Co. (Ia.), 125 N.W. 186; Ship Co. v. Yeager, 120 Miss. 152; Terry Shipbuilding Co. v. Griffin (Ga.), 112 S.E. 374; Duggan v. Wells Bros., 191 Ill. App.? 499.
What degree of care required of employer in building construction. Rule as to safe place to work applied to building construction. Chinn v. Fero-Concrete Constr. Co., 132 N.Y.S. 850; Hayes v. Sheffield Ice Co. (Mo.), 221 S.W. 705; Meyers v. Atlas Portland Cem. Co. (Mo.), 260 S.W. 778; Evans v. Central of Ga. R.R. Co., 135 S.E. 760; Minter v. Gidinsky (Mo.), 228 S.W. 1075; Mount v. Western Coal Min. Co. (Mo.), 242 S.W. 843; Cosden Pipe Line Co. v. Berry (Okla.), 210 P. 141; Knight v. American Mfg. Co. (Mo.), 264 S.W. 89; Louisville Fire Brick Works v. Tackett (Ky.), 262 S.W. 299; Armour v. Hahn, 111 U.S. 313, 28 L.Ed. 440, cited by counsel for appellant, distinguished.
Point 4. The necessity for system of rules. Application of the legal principles as applied to Tatum v. Crabtree, 130 Miss. 462, cited by counsel for appellant. Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797.
Point 5. Measure of damages.
Point 6. Court below committed error in instruction jury that Williford was a fellow servant with appellee. Cybur Lbr. Co. v. Erkhart, 238 Fed. 751; Ill. Cent. R.R. Co. v. Bishop, 76 Miss. 758; Hercules Powder Co. v. Hammack, 145 Miss. 304; Great So. Lbr. Co. v. Hamilton, 137 Miss. 55; Great So. Lbr. Co. v. May, 138 Miss. 27; 39 C.J. page 536, par. 643; Hoerngen v. Cement Co., 205 Fed. 880; International Corp. v. Slappy, 261 Fed. 979; Austin Mfg. Co. v. Johnson, 89 Fed. 677; Alaska Min. Co. v. Muset, 114 Fed. 66; Eastern Metal Co. v. Galvao, 195 Fed. 737; Mize v. Gulf Comp. Co., 202 Fed. 657.
Whenever master trusts a department of his business to a servant who directs services of employees and performs nondelegable duties, such servant is a vice-principal. Taylor v. Railway Co. (Ind.), 6 L.R.A. 384; Railway Co. v. Naylon (Colo.), 31 A.S.R. 335; Campbell v. Jones (Wash.), 20 A.S.A. 671; Clark v. Feed Co. (Mo.), 45 L.R.A. (N.S.) 295; Maloney v. Winston (Idaho), 47 L.R.A. (N.S.) 634; Van Dyke v. Packet Co. (Ky.), 71 S.W. 441; R.R. Co. v. Snider, 152 U.S. 689, 38 L.Ed. 597; Louisiana Oil Co. v. Farish, 109 So. 30.
Argued orally by H.D. Minor, for appellant, and W.H. Watkins and James McClure, for appellee.
The appellant, the Yazoo Mississippi Valley Railroad Company, prosecutes this appeal from a judgment of the circuit court of Panola county against it in favor of William B. Smith, the appellee, for twelve thousand five hundred dollars for personal injuries.
The declaration alleges that the appellee was employed by the railroad company in 1927, in the work of converting three old box cars into a storeroom and office at Cleveland, Miss.; that he was working as a carpenter under one Williford, appellant's foreman; that, while appellee was on a scaffold on the outside of one of the cars taking off some angle irons with a cold chisel, he was directly in front of a tie-rod which ran completely through the car; that without any warning to him the foreman struck this iron tie-rod a heavy blow, causing the end to strike appellee in the groin, inflicting serious and painful injuries; that the railroad company, in failing to provide for him a reasonably safe place to work, in consequence of which he was injured, was negligent, and that he was not given any warning, nor had there been promulgated any set of rules which would have protected him from such injuries, and, as a proximate consequence of the failure to warn him, he was injured.
The appellant railroad company filed six pleas to the following effect: (1) The plea of general issue; (2) that the injury was caused by the negligence of a fellow servant; (3) that the negligence was that of the plaintiff and a fellow servant; (4) that the risk was open and understood by appellee and voluntarily assumed by him; (5) that the plaintiff (appellee) was guilty of negligence in the premises which contributed to or caused the injuries; and (6) that the dangers were not such as the railroad company could have guarded against nor foreseen, but were due to a transitory peril.
The plaintiff (appellee), as his own witness, testified that he was injured in January, 1927, while working as a carpenter, for the appellant, at Cleveland, Miss.; that S.R. Williford was foreman of a repair gang; that at the time of the injury Smith and the gang were engaged in converting three old box cars, which were on pillars, into an office; that at the time he was injured he was sitting on a scaffold facing the outside of one of these cars in close proximity thereto; that the scaffold was elevated some distance from the ground, and he was engaged in taking off angle irons; that there were seven men at work there, most of whom were on the inside of the car and could not be seen by him, he being on the outside of the car engaged in work there. It further appears that at or near the end of the car there was what is called a tie-rod, being a rod more than six feet long and one inch in diameter, made of iron, which ran through the car and held it together, and was held in place by nuts; that, in order to do the work, it was necessary that this tie-rod be driven out so the car could be ceiled on the inside; that Williford gave him the order to occupy that place, and that, after he had been given this order, he did not know the position of Williford, or the other men engaged at work on the inside of the car. To use the appellee's own language, this occurred:
"A. While I was sitting there they got a rod and drove it in me, and knocked it out on the scaffold. I fell out here on the upright pieces. They held me; I didn't fall off.
"Q. This tie-rod was driven into you? A. Yes, sir.
"Q. How was it driven into you — at what part of the body? A. In my left groin, . . . hard blow; . . . it knocked me out. I couldn't tell you how the pain was. They carried me to the car and undressed me and put me to bed."
He was then asked if he had been given any notice that this rod was about to be driven into his body, and his answer was, "No, sir," that he did not know, and that no warning or notice of intention to drive the rod was afforded him. He further said that Williford, the foreman, told him he was the one, and that he (Williford) did not know Smith was out there, or did not think about it. Appellee's evidence further disclosed that the people on the inside were engaged in driving nails into the side of the car, and that these nails protruded. He further testified that the company had no sort of rule with reference to driving nails or bolts out of cars, and that there should have been a rule, and that there was an entire absence of any system of warning, and that he had no warning by rule, or in any other manner; that, if he had been warned, he could have watched out for the danger.
The proof further showed, according to appellee and his physicians, that he had been in the care of physicians since the date of his injury; that he suffered great pain, and that he could not prosecute his business; that before this injury he was an able-bodied man, doing as much work as any carpenter on his gang, and that at the time of the trial he could not engage in any work; that he had incurred doctor and medical bills; and that he was permanently injured, and had received such injuries at a time when he was doing work that Williford, the foreman, had directed him to do, and at a time when he did not know the tie-rod was to be driven out, nor had anything been said to him about it.
As there is no brief on the excessive amount of verdict and judgment, we will not detail further the injuries sustained by the appellee.
The plaintiff (appellee) and his witnesses, made a case of an injury of a serious nature, and the jury evidently took plaintiff's view of the facts.
The defendant Williford claimed that he gave a warning, and that Smith knew that he was going to drive the rod out. Other witnesses for the railroad company tended to contradict plaintiff on matters of position, but, on the question of whether or not there was any warning, there was a straight issue of fact between plaintiff's evidence, and that of Williford. Williford admitted that he struck the iron rod with a sledge-hammer, and that the appellee was injured because thereof.
Appellant contended in the court below, and contends here, that it was entitled to a peremptory instruction; its main contention being that the proximate cause of the injury to Smith, its employee, was the negligence of his fellow servant Williford, and not the unsafety of the premises nor the condition of the work, and that the principle of the master's duty to furnish a safe place to work has no application, that Williford and Smith were fellow servants engaged in common work together, and that Williford was not a vice principal, and that the obligation of a master to furnish a safe place to work does not impose upon him the duty of keeping a building his servants are erecting safe during every moment they are working upon same, as their safety depends upon due performance of the work by them, and that the danger incident to this employment was assumed by Smith, the appellee.
The one instruction complained of, given by the court below, for the appellee, is as follows:
"The court instructs the jury, for the plaintiff, that in this case the defendant was the master of W.B. Smith, plaintiff, and plaintiff was the servant of said defendant, and that, as such master, it was incumbent on defendant to use due care to furnish said W.B. Smith with a reasonably safe place in which to work, and if the jury believe, from the evidence, that the defendant failed to use due care to furnish said Smith with a reasonably safe place in which to work, and that no reasonably safe place was furnished, and further believe from the evidence that such failure, if failure there was, to use due care to furnish him with a reasonably safe place in which to work was negligence on the part of the defendant, and proximately contributed to plaintiff's injury, and if he was injured, then you shall find a verdict for the plaintiff."
More than a dozen instructions were granted the defendant. The court instructed the jury that Williford and Smith were fellow servants, and that, if the injury was proximately caused by a fellow servant, that there could be no recovery. The jury was also instructed, on behalf of the defendant, the railroad company, that the master, in providing a safe place in which to work, did not have to provide for transitory perils and acts of carelessness, or negligence of a fellow servant, which could neither be foreseen nor safeguarded against by the master.
There are some minor matters with reference to objections to evidence, but we do not think they are of sufficient import to require us to burden this opinion with them, as we think they are without merit.
As we view this case, it is narrowed down to one proposition, viz.: Was the appellee, Smith, injured as a result of the failure of the master, the railroad company, to furnish him with a reasonably safe place in which to work? If this question is answered in the affirmative, then the verdict and judgment of the court below must be upheld. If it be answered in the negative, then the judgment of the court below must be reversed, and judgment entered here for the appellant, the railroad company.
After a very careful study of this record, we have reached the conclusion that the jury was warranted, by the evidence, in finding that the appellee, Smith, was injured, and that his injuries were due to the failure of the master, the railroad company, to furnish him a reasonably safe place in which to work at the time he was injured, and that the failure to furnish said safe place was the proximate cause of his injuries.
Counsel for both sides have very diligently collaborated authorities from various courts throughout this country on this question, and their "name is legion;" but it is a fruitless excursion into a maze of authorities in hopless conflict outside this jurisdiction, when the question has been settled and set at rest by our own court, and for more than a half a century this court has followed on this question a consistent course.
We shall, however, because of the insistence of counsel, briefly refer to the cases cited by the appellant to sustain its contention.
Appellant cites and relies upon the case of I.C.R.R. Co. v. Bishop, 76 Miss. 758, 25 So. 867. That was a case decided upon a principle of law obtaining in Louisiana, and it was held that the negligence was due to a fellow servant's failure to discharge his duty, he being a bridge tender and having left the lever upright, and in applying the Louisiana law, there was hardly any room for the contention that the rule with reference to furnishing him a safe place to work could have any effect.
In the case of New Orleans N.E.R. Co. v. Williams, 96 Miss. 374, 53 So. 619, the plaintiff, Williams, attempted to pass between cars, and the other servants of the railroad company were engaged in switching the cars on the track. This court held that, if there was any negligence, it was that of the fellow servants and was not due to lack of care and a safe place in which to work.
In the case of Cybur Lumber Co. v. Erkhart, 118 Miss. 401, 79 So. 235, this court held, where the tong man was operating a skidder, the lumber company was not liable for injuries sustained when he walked to slacken a line and was struck by a broken tree falling from its stump, and that there the injury was not due to the master's failure to furnish a safe place in which to work, as there was no specific direction for the servant to be at that place at the moment of his injury.
In the case of International Co. v. Carter, 121 Miss. 103, 83 So. 413, the court simply held that the rule which requires a master to furnish a safe place in which to work does not apply to cases where the prosecution of the work itself creates danger. Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787. There the employee injured was being carried from the camp where he had been working, and was being transported on a motortruck which belonged to his employer; the truck being operated by a fellow servant whose negligence caused the injury. There was nothing wrong with the truck, it was in good repair, and there the court considered no question as to whether there was a safe place in which to work.
Great Southern Lumber Co. v. May, 138 Miss. 27, 102 So. 854, 103 So. 363, was a case where one fellow servant made an assault upon another, and the question involved in the case at bar was not there under review.
In the case of G.M. N. Ry. Co. v. Brown, 143 Miss. 890, 108 So. 503, an employee was injured because, when he stepped on a piece of decking where it had failed to catch on the stringer, his weight forced the other end of the decking up toward an upright position, making a hole through which his foot and leg went, resulting in his injury. The court held that the employee was employed with others for the very purpose of making a place of safety, and therefore the doctrine of a reasonably safe place to work could not be invoked.
Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676, simply announced that the fellow-servant rule was in force and applicable thereto. The question of a safe place in which to work was not presented nor decided.
We have called attention to the cases cited in counsel's brief from our own court in order to demonstrate that the facts and conclusions reached in each case are not applicable to the case at bar.
The appellee Smith bottomed his case on the proposition that it was the duty of the railroad company, the appellant, to furnish the appellee with a reasonably safe place in which to work, which duty could not be delegated to a fellow servant, and negligence in respect thereto which caused the appellee's injuries was solely attributable to the appellant. It was therefore the duty of the master to warn the appellee of the danger about to be inaugurated growing out of the progress of the work, known to the master, and unknown to the appellee, and such duty cannot be delegated to a fellow servant so as to relieve the master from the results of his noncompliance.
Smith, the appellee, testified, and the jury adopted his version, that he was directed by the foreman, Williford, to work at a point where he could not see Williford at work on the inside. Williford, after giving instructions to appellee to work on the outside, promptly went inside the car, and, in the progress of the master's work, and in the proper manner, so far as the work was concerned, took a sledge-hammer and knocked the tie-rod so as to drive it into the person of appellee without warning or notice.
This record does not show who was Williford's superior officer, nor whether there was any such superior officer. If we say Williford was not a vice principal, but was a fellow servant, then the master knew, or ought to have known, that, while the place was apparently safe for Smith to work in, thus removing the angle irons, sitting upon this scaffold as he was, yet when the tie-rod was struck with a sledge hammer blow that it would become perilous and dangerous to the life and limbs of any who might be working upon the scaffold at the point to which this tie-rod was driven. The mind that directed Smith to engage in the master's work at a particular place was the same mind that directed the arm that exerted the force that brought the hammer into violent contact with the tie-rod and said tie-rod in contact with the person of Smith so as to seriously injure him.
It was the duty of the master, under these circumstances, to have warned Smith of the impending danger, that the place which seemed calm and serene was about to become a place of deadly peril.
Bear in mind that Smith could not see Williford, the car wall being between them, and that, although the accident happened in a moment, yet it cannot be said to be a transitory peril, nor can the fact, that the master protected himself by undertaking to delegate to a servant the duty which the master owed, of warning Smith that the place whereat he was engaged in work was about to become dangerous, be considered.
This view of the law is supported by the following cases.
Oil Co. v. Ellis, 72 Miss. 191, 17 So. 214. In this case, an employee was engaged in stenciling a car in a shed of the oil mill standing upon a switch, when a train was backed into the shed against two box cars, which, in turn, bumped the car on which he was working, and he was injured thereby. The court held it was the duty of the company to have given such employee notice of the danger from in-coming cars, regardless of any custom of the company in regard thereto.
In the case of Bradford v. Taylor, 85 Miss. 409, 37 So. 812, a novice employee was working in a laundry; the machinery was unsafe and defective, and she was misled into believing same to be safe. The court held that the risk so arising was not incident to her employment, and that she had the right to rely upon the representations made to her, and that the defense that it was the act of a fellow servant was not tenable.
In A. V. Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703, an employee stepped from a car onto a platform between a side track and main track of a railroad, and a plank gave way with him, and he was injured. The court said:
"The duty to furnish a safe place to work cannot ordinarily be delegated to fellow servants, and the risk relative thereto is not ordinarily assumed" — citing authorities.
To the same effect this language is approved in Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330.
Edwards v. Hanyes-Walker Lumber Co., 113 Miss. 378, 74 So. 284, is directly in point. There it was the duty of an employee to oil a bit saw mandrel during the noon hour when the machinery was required to be shut down, and the foreman started the machinery before one o'clock without sounding the whistle, and the employee was injured. Held that the master was liable. It was argued that the proximate cause of the injury was the act of the fellow servant in starting the machinery, and this court said:
"It would seem absurd to say that the master might escape liability, under the facts of this case, by merely saying that he had performed his duty in this case by directing the employee to oil the mandrel while the mill was shut down at the noon hour, and while the death-dealing apparatus was quiescent; that the premature starting of the machinery was the negligent act of a fellow servant for which the master was not liable; . . . That `a master is responsible in point of law, not only for a defect on his part in providing for his failure to see that the apparatus was properly used.' Labatt's Master Servant (2 Ed.), section 1110."
The court cited Oil Company v. Ellis, supra, and announced that the fellow-servant doctrine had no application to the facts of the case.
In the case of Benton v. Finkbine Lumber Co., 118 Miss. 558, 79 So. 346, the court used the following language:
"The declaration states facts which show that the work in which the plaintiff was engaged was of a hazardous character, that the master could have provided warnings when the trees were about to fall, which in all probability would have protected the plaintiff from injury, and that he failed to do so. It is elementary law that it is a nondelegable duty of the master to furnish the servant with a reasonably safe place in which to work, and that it is his further duty to maintain the place as a reasonably safe one. Edwards v. Lumber Co., 113 Miss. 378, 74 So. 284; Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Lucey v. Stack-Gibbs Lbr. Co., 23 Idaho, 628, 131 P. 897, 46 L.R.A. (N.S.) 86; Potlatch Lbr. Co. v. Anderson, 199 Fed. 742, 118 C.C.A. 180."
In the case in 46 L.R.A. (N.S.) 86, is an extensive note fully discussing this question.
In the case of Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916, this court said:
"It was not only the duty of the appellant to furnish the appellee with a reasonably safe place in which to work when he started at his work, but this was a continuing duty. The appellee was engaged in the manufacture of staves after the timber had been cut and handed to him. It was no part of his duty to keep the place where he was working in a reasonably safe condition, free from the accumulation of trash; but it was the ever present duty of the master to see that this was done. Appellee testifies that because the master neglected this duty, and allowed this trash to accumulate there, he was injured while attempting to reach the oil for the purpose of oiling the saws; and if this testimony is true, which the jury have said by their verdict is a fact, there is no question as to the liability of the master. . . . The instruction entirely loses sight of the fact that the duty of the master to furnish a reasonably safe place is a continuing duty."
In the case of Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797, this court invoked the doctrine in a case almost parallel in its facts with the case at bar. There an employee was working inside the hull of a ship near completion, and was ignorant of the fact that boring with an auger was being done from the outside at the point at which he was working. The employee was struck by the auger being driven through the sides of the ship by the employees on the outside, and the court held that notice should have been given by those boring on the outside to those working on the inside, and it was held that the employer there was negligent in not warning the employee of this danger, and it was further held that there was failure to provide him with a safe place in which to work, and that the employee could recover for injuries sustained on account of such failure. The court there used this significant language:
"We are not concerned with the inquiry as to what warning would have been sufficient. We have a case where no warning or system of notification whatever was given or maintained. Here the servant, we think, had a right to be informed of dangers which he himself had no means of ascertaining."
The only difference between the case at bar and the Yeager case is that there they were boring through the sides of a ship without warning to those on the inside, and here they were driving a rod in order that the work on the inside might go forward, and gave no warning to those on the outside. No rules as to warning employees had been adopted in either case according to the plaintiff's versions as adopted by the jury.
We find no reversible error in this record.
Affirmed.