December 9, 1935.
Instruction that employer owed duty to furnish employee with reasonably safe place to work and that if preponderance of evidence showed failure to do so, and it was proximate cause of injury, verdict should be for employee, held reversible error, since omitting qualification that employer was required to use only reasonable care to furnish reasonably safe place to work.
APPEAL from the circuit court of Pike county; HON. J.F. GUYNES, Judge.
Brady, Dean Hobbs, of Brookhaven, and Williams Hunt, of McComb, for appellant.
The court below erred in granting to plaintiff the following instruction: "The court instructs the jury for the plaintiff that it was the duty of the defendant to furnish plaintiff with a reasonably safe place to work, and if you believe from a preponderance of the testimony that the defendant failed to so furnish the plaintiff with a reasonably safe place in which to work and that he was injured thereby and that was the proximate cause of his injuries, if you believe that he was so injured, then your verdict should be for the plaintiff."
Since 1911 this court has repeatedly held that the duty of the master is not absolute but is simply to exercise reasonable care.
Hugh V. Wall, of Brookhaven, for appellee.
We admit now that this instruction complained of is not worded as it should have been and that it has been criticised by this court but candor compels us to admit that when we wrote our instruction we were not aware of this court's criticism of it and had we been, we would have worded the instruction as outlined by this court. However, we contend that the giving of this instruction, in view of the instructions that were given to the defendant, is not reversible error under the decisions of our court.
Instructions are to be considered together, and technically erroneous instructions will not authorize reversal, where instructions may be harmonized to present fairly correct statement of applicable law.
Durrett v. Miss. R.R. Co., 158 So. 776.
We call the court's attention to an instruction given by the court for the defendant. This instruction tells the jury that they must believe by a preponderance of the testimony that the defendant was guilty of negligence as set out in the declaration before they can return a verdict in his favor.
We call the court's attention to another instruction given for the defendant. This instruction specifically tells the jury that if they believe that the sole cause of the plaintiff's injury was his own negligence, then he cannot recover.
We call the court's attention to another instruction given the defendant, in which instruction the jury was told that if the plaintiff was instructed to take another route in going upon the top of the kiln to adjust the ventilators which was safe and in violation of his instructions he used another ladder and took a route over an old kiln, in violation of the instructions, and was injured thereby and that defendant was not guilty of any negligence in furnishing him a reasonably safe place to work, then the jury must find for the defendant.
We submit that the instructions given to the defendant cured the criticism of the instruction given to the plaintiff, and reading all of the instructions together, we submit just as Judge GRIFFITH held in the Durrett case, they harmonize to present a fairly correct statement of the applicable law.
Railroad Co. v. Groom, 97 Miss. 201.
While the wording of the instruction now under consideration is wrong as held by this court, yet we submit that under the holding in the Groom case, we do not believe it could have been misleading to the jury in view of all of the instructions in the case.
Argued orally by Junior O'Mara and T. Brady, Jr., for appellant, and by Hugh V. Wall, for appellee.
Appellee brought this action against appellant in the circuit court of Pike county to recover damages for a personal injury received while in appellant's employ, as the result of its alleged negligence in failing to furnish him a reasonably safe place to work. The trial resulted in a verdict and judgment for appellee in the sum of one thousand dollars. From that judgment, appellant prosecutes this appeal.
Appellant argues with much confidence, and a good deal of show of reason, that the court erred in refusing its request for a directed verdict. We see no good purpose to be accomplished in setting out the evidence on the issue of liability. It is sufficient to say that the evidence for appellee tended to establish liability, while there was substantial evidence to the contrary. It was, therefore, a question for the jury and not for the court.
The court instructed the jury for appellee that it was the duty of appellant to furnish appellee with a reasonably safe place to work, and if the preponderance of the evidence showed that appellant failed so to do, and that such failure was the proximate cause of the injury, their verdict should be for appellee. Appellant assigns and argues as error the giving of this instruction, because the necessary qualification, that appellant was only required to use reasonable care to furnish a reasonably safe place to work, was left out; in other words, that by the instruction the court told the jury that the duty to furnish a reasonably safe place to work was an absolute one. Appellant's criticism of the instruction is well founded. Hooks v. Mills, 101 Miss. 91, 57 So. 545; Anderson v. McGrew, 154 Miss. 291, 122 So. 492; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86. The instruction as given would require the master to furnish a reasonably safe place to work whether such a place could be provided by due care or not. The principle would make the master liable for injury to the servant as the result of dangers incident to and inherent in the employment, dangers that could not be remedied by reasonable care on the part of the master, or, in other words, dangers assumed by the servant when he accepts the employment.
In a case like this, where the evidence is strongly conflicting on the issue of liability, such an instruction is calculated to mislead the jury. Appellee argues that the error in the instruction was cured by other instructions. We disagree with appellee; there was nothing in the other instructions curative of the error.
Reversed and remanded.