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McLemore McArthur v. Rogers

Supreme Court of Mississippi, Division B
Apr 2, 1934
169 Miss. 650 (Miss. 1934)

Summary

In McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883, 884, a servant was put at a work requiring a constant attention and while so engaged, another servant negligently caused wet concrete to fall into the eyes of the former.

Summary of this case from Lancaster v. Lancaster

Opinion

No. 31098.

March 5, 1934. Suggestion of Error Overruled April 2, 1934.

1. MASTER AND SERVANT.

Whether fragments of semiliquid concrete which contractor's employee negligently splashed over top of courthouse wall fell to ground immediately next to wall, or fell several feet from wall, striking eye of another employee who stood there while assisting in hoisting steel beam, held for jury.

2. MASTER AND SERVANT.

Servant must exercise due care to protect himself against all ordinary and obvious dangers of his work for master who has furnished servant reasonably safe working place and appliances.

3. MASTER AND SERVANT.

So far as reasonably practicable, master must warn servant or erect guards or so control method of work as to obviate danger to servant whose work contains hazards against which servant cannot protect himself by exercise of due care.

4. MASTER AND SERVANT.

Evidence held to establish that negligence of contractor's employee in splashing semiliquid concrete over top of courthouse wall caused fragments thereof to fall into eye of another employee who stood near wall while assisting in hoisting steel beam.

5. APPEAL AND ERROR.

Findings of jury are conclusive when supported by reasonable and substantial evidence.

6. APPEAL AND ERROR.

Evidence showing that building contractor took no care in regard to safety of employee who sustained eye injury by falling concrete, instruction that contractor's duty as to employee's safety was absolute held not reversible error.

APPEAL from Circuit Court of Lawrence County.

Watkins Eager, of Jackson, and G. Wood Magee, of Monticello, for appellants.

The circuit judge committed error in refusing to direct a verdict in favor of the appellant.

Appellants were not insurers of the safety of appellees.

M. O.R.R. Co. v. Clay, 125 So. 819; Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Hooks v. Mills, 57 So. 545, 101 Miss. 91; 3 Labatt, Master Servant, par. 919; Howard v. R.R. Co., 50 Miss. 178; Kenty v. R.R. Co., 77 Miss. 494; R.R. Co. v. Wooley, 77 Miss. 927; Southern Ry. Co. v. McClelland, 80 Miss. 700; Matthews v. R.R. Co., 93 Miss. 325.

There is no presumption of liability on the part of the appellants merely for the happening of the accident.

Schaffer v. Deemer Mfg. Co., 108 Miss. 257; R.R. Co. v. Cathay, 70 Miss. 332; Hope v. N.C. M.R.R. Co., 54 So. 369, 98 Miss. 822; A. V. Ry. Co. v. White, 106 Miss. 141.

Liability, if any, of the appellants, would be predicated upon negligence and not danger.

Hope v. R.R. Co., 54 So. 369, 98 Miss. 822; Seifferman v. Leach, 138 So. 563, 161 Miss. 853.

Before the appellants could be guilty of negligence, at the time of the injury the appellants must have been guilty of some breach of positive duty to the appellee.

Elliott v. R.R. Co., 111 So. 146, 145 Miss. 768; A. V. Ry. Co. v. White, 63 So. 345, 106 Miss. 141.

Such danger as there was, if any, from the falling of concrete to the ground was one incident to the employment in which appellee was engaged, and for which appellants are not liable.

Morgan Hill Paving Co. v. Morris, 133 So. 229, 160 Miss. 79; Robertson v. Y. M.V.R.R. Co., 122 So. 371, 154 Miss. 182; Eastman Gardiner Hardwood Co. v. Chatham, 151 So. 556; Austin v. M. O.R.R. Co., 98 So. 3, 134 Miss. 226; Y. M.V.R.R. Co. v. Hullum, 80 So. 645, 119 Miss. 229; Lambert v. Miss. Cen. R.R. Co., 120 So. 177, 152 Miss. 450; G.M. N.R.R. Co. v. Brown, 143 Miss. 890; Yazoo City Transportation Co. v. Smith, 78 Miss. 140; Cumberland T. T. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Shipbuilding Co. v. Carter, 121 Miss. 103, 93 So. 413.

The appellee and Henry Waller were fellow-servants engaged in a common enterprise.

Great Southern Lbr. Co. v. Hamilton, 101 So. 787, 137 Miss. 55; Hercules Powder Co. v. Hammack, 110 So. 676, 145 Miss. 304; Ozen v. Sperier, 117 So. 117, 150 Miss. 458; Greer v. Pierce, 147 So. 303; Great Southern Lbr. Co. v. May, 102 So. 854, 138 Miss. 27; Givens v. Sou. Ry. Co., 49 So. 180, 94 Miss. 830; Bradford Const. Co. v. Heflin, 42 So. 174, 88 Miss. 314; Millsaps v. Ry. Co., 69 Miss. 423; Railway Co. v. Petty, 67 Miss. 255; Lagrone v. M. O.R.R. Co., 67 Miss. 592; Deviny v. Planters Oil Mill, 33 So. 492; Ill. Cen. R.R. Co. v. Jones, 16 So. 300.

No negligence may be predicated on the failure of the appellants to provide a guard to prevent concrete and cement spattering over.

Mitchell v. Brooks, 147 So. 660; Kent v. R.R. Co., 77 Miss. 494.

The appellant used such equipment and adopted such equipment as was in common and general use by persons of reasonable prudence.

Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 128 So. 99, 158 Miss. 346; M. O.R.R. Co. v. Clay, 156 Miss. 463; Jones v. Y. M.V.R.R. Co., 44 So. 813, 90 Miss. 547; 39 C.J. 450, note 57; Spindler v. American Exp. Co., 232 S.W. 690; Brendel v. Union Elec. L. P. Co., 252 S.W. 635; Gracy v. Walsh, 201 S.W. 582; Haney v. St. Regis Min. Smel. Co., 205 S.W. 93; Cleary v. R.E. Dietz Co., 118 N.E. 509, 222 N.Y. 126, 149 N.Y. Supp. 958, 164 App. Div. 621; Wallace v. So. Cot. Oil Co., 108 S.E. 327, 182 N.C. 755; Nordin v. Lovegran Lbr. Co., 156 P. 587, 80 Or. 140; Whalen v. Union Pac. Coal Co., 168 P. 99, 50 Utah, 455; Haines v. Coastwise Steamship Barge Co., 177 P. 648, 104 Wn. 685, 185 P. 583, 108 Wn. 700; Williams v. St. Joseph Artesian, etc., Co., 214 S.W. 385; Taylor v. White, 212 S.W. 656, 156 S.W. 349; Van Landers v. West Lbr. Co., 227 S.W. 692, 239 S.W. 195; Stam v. Ogden Pckg., etc., Co., 177 P. 218, 53 Utah, 248; Ferguson v. Middle States Coal Coke Co., 89 S.E. 151, 78 W. Va. 465; First Wisconsin Trust Co. v. Chicago, M. St. P. Ry. Co., 194 N.W. 26, 180 Wis. 648; Kent v. R.R., 77 Miss. 494; R.R. Co. v. Brown, 108 So. 503, 143 Miss. 890.

No warning was required.

Lambert v. Miss. Cen., 120 So. 177, 152 Miss. 450; Poplarville Lbr. Co. v. Kirkland, 115 So. 191, 149 Miss. 116; Y. M.V.R.R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Dobbins v. Oil Refining Co., 97 So. 546, 133 Miss. 248; Tatum v. Crabtree, 94 So. 449, 130 Miss. 462; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Ragland v. Native Lbr. Co., 117 Miss. 602, 78 So. 542; Railroad Co. v. Hawkins, 61 So. 161, 104 Miss. 55; G. S.I.R.R. Co. v. Blockman, 39 So. 479, 87 Miss. 192; Osborn Lbr. Co. v. Gage, 27 So. 998.

Neither the appellant nor Henry Waller knew that the appellee was in any place of danger at the time of the alleged injury, if he was in such place of danger.

Railroad Co. v. James, 128 So. 766, 157 Miss. 607; Railroad Co. v. Collins, 117 So. 593, 151 Miss. 240; G.M. N.R.R. Co. v. Brown, 108 So. 503, 143 Miss. 890; Austin v. Railroad, 98 So. 3, 134 Miss. 226; Lampton v. Atkins, 92 So. 638, 129 Miss. 660; Ten Mile Lbr. Co. v. Garner, 78 So. 776, 117 Miss. 814; Miss. Cen. R.R. Co. v. Bennett, 71 So. 310, 111 Miss. 163; A. V.R.R. Co. v. White, 63 So. 345; Hope v. R.R. Co., 54 So. 369, 98 Miss. 822.

E.B. H.J. Patterson, of Monticello, R.T. Hilton, of Jackson, and W.D. Hilton, of Mendenhall, for appellee.

Knowledge of this dangerous situation was proven on the part of the superintendent and one of the appellants. An issue of fact was sharply made that guards could be built that would have protected Rogers from such a danger. The undisputable proof is that the concrete was poured in the holes without guards and fell some thirty feet into the face and eyes of Rogers while attending the designated duties appointed him by the superintendent, and that he was injured thereby.

It is the rule of this state that servants do not assume risk of master's negligence in not furnishing reasonably safe places to work, or reasonably safe instrumentalities. A master cannot fail to furnish safe instrumentalities and escape liability because fellow servants may have contributed to plaintiff's injury.

Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80; Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; American Sand Gravel Co. v. Reeves, 151 So. 477; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797.

Section 512, Code of 1930, provides that all questions of negligence and contributory negligence shall be for the jury to determine. And such question of negligence in the case at bar was submitted to the jury for their determination.

Section 513, Code of 1930, which section abolished the doctrine of assumption of the risk of the employee when the master is negligent, squarely applies to the case at bar. By section 512 the negligence of appellants was a jury question. By section 513 there is no assumption of risk of the employee if the jury determine upon an issue of fact that the master is negligent.

Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; American Sand Gravel Co. v. Reeves, 151 So. 477; Barron Mtr. Co. v. Bass, 150 So. 202; New Orleans M. C.R.R. Co. v. Cole, 101 Miss. 173.


The testimony is sufficient to support the following findings of fact, viewed in the light of the verdict of the jury: Appellee was employed as a day laborer by appellant firm in the work of reconstructing a courthouse. On the occasion in question a steel beam of considerable weight and length was being hoisted from the ground to the top of the north outside wall, which wall was about thirty-two feet high. Appellee was directed to stand on the ground near the wall and outside thereof and to manipulate a guy line attached to the beam, so that in its ascent the beam would not strike the wall or cornice. To do this it was necessary that appellee should constantly keep his face upward and his eyes fixed upon the beam as it ascended.

There were ten of these beams placed and to be placed, each with one end on the south wall and the other end on the north wall. At appropriate intervals on the inside of the top of the north and south walls there were cups or holes left in the brick work for the reception of the ends of these beams, and, after the beams were put in place, the remainder of the cup or hole not filled by the end of the beam would be filled with concrete. While the fifth beam was being raised and had reached within about two feet of the top of the wall, and while appellee was holding the guy line and guiding the beam, with his face upturned and his eyes intently focused upon the beam, another servant working from the inside of the top of the wall was pouring concrete from a bucket into one of the receptacle cups or holes for a beam end, and at a place approximately above where appellee was engaged with the guy rope. In pouring the concrete, the servant above did it, at the instant in question, in such a negligent manner that a batch of concrete splashed over the wall and struck appellee in the face with great force, and seriously and permanently injured his right eye.

The servant pouring the concrete from the inside of the top of the wall was in such position that he could not be seen by appellee working thereunder on the outside of the wall, and appellee did not know that concrete was being poured within a dangerous zone above him. No warning was given him thereof, and no guard or other device was used to prevent the splashing over of the concrete. Appellants admit that they knew that, in pouring the concrete as was done, some fragments of it were likely to splash over and fall to the ground, but they contended that no practical guard would prevent it, and that, in any event, any concrete which splashed over would fall to the ground immediately next to the wall, and would not fall on a worker handling a guy line a few feet from the wall as appellee was doing. Appellants further defended with testimony to the effect that no concrete was poured until all the beams had been put in place, and that in fact no concrete was poured while appellee was assisting in hoisting the beam.

As to how far fragments of semiliquid concrete would likely fall away from the foot of a thirty-two-foot wall when splashed over the top thereof as a result of the pouring of the concrete out of a bucket into a hole on the top of the wall was typically a question for the determination of a jury. Semiliquid concrete simply poured over the top of a wall would, of course, fall nearly straight down to the ground, but splashed concrete, as was likely when poured out of a bucket, would take a curved course and would strike the ground at a distance from the foot of the wall according to the height of the wall and the force of the splash — this was typically a matter for the jury. The other issue that the concrete was not poured until all beams were in place and until there was no occasion for a worker to be on the ground guiding the beams in their ascent was on sufficient evidence found against appellant firm by the jury, and its only significance now in the case is that it discloses the method of work which should have been pursued by appellants, but which, according to the weight of the evidence, they did not actually pursue.

The general principle is that, where the master has used reasonable care to furnish a reasonably safe place to work, the character of the work considered, and like care to furnish reasonably safe appliances with which to work, the duty rests upon the servant to take care of himself as to all the ordinary and obvious dangers which arise in the progress of the work. Brown v. Coley (Miss.), 152 So. 61. The converse is equally true that, where the master places his servant at a place and in a character of work which exposes the servant to hazards against which the servant cannot, by the use of due care, protect himself and at the same time do his work, the master must then take reasonable care to warn the servant or to erect guards, if either of these are reasonably practicable, and, if not, the master must so order and control the method of work as to obviate the danger, so far as reasonably practicable. The case here falls exactly within the principle of adjudication which was applied in Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797. See the comment thereon in Tatum v. Crabtree, 130 Miss. 462, 474, 94 So. 449, and note the reasoning employed in Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476. Compare Hammontree v. Cobb Const. Co. (Miss.), 152 So. 279.

The seventh instruction, granted at the request of appellants, is a substantially correct statement in concrete form of the law of this case, and the affirmance of the judgment may be rested upon the facts when applied to that instruction, which reads as follows: "The court instructs the jury for and on behalf of the defendants McArthur and McLemore that before the plaintiff can recover in this case the burden of proof lies upon him to establish to your satisfaction from a preponderance of the evidence that at the time he was injured he was situated in the performance of his duty at some place so near the wall of the building as to be in danger of falling concrete therefrom; that he was at the time engaged in guiding to the top of the building a beam, and that while he was so guiding said beam the defendants McArthur and McLemore were causing concrete to be poured into the forms, and that through the negligence of said McArthur McLemore, or their agent, Ruben McLemore, concrete was cast in the plaintiff's eyes and he was injured thereby."

There is sufficient evidence to meet the burden placed upon appellee by that instruction and as to every element therein pronounced as essential. And, since the evidence meets the test prescribed by appellants themselves, there is left to them no maintainable complaint on the issue of liability, since we must accept the facts as found by the jury when supported, as is the case here, by reasonable and substantial evidence.

The principal instruction granted at the request of appellee is technically erroneous, for the reason that it does not declare the duty of the master to be to take reasonable care, but states in effect that his duty is absolute. We called attention to this prevalent error in Barron Motor Co. v. Bass (Miss.), 150 So. 202, 204. But the error will not require a reversal in this case, because the evidence discloses that the master here did not take any care in regard to the safety of this servant, and is therefore not harmed by the absence of the qualification of reasonable care.

The verdict seems to us to be too large, but we cannot say that it is so far out of reason as to authorize us to interfere, particularly in view of what we did in Teche Lines, Inc., v. Bateman, 162 Miss. 404, 139 So. 159, which is a very similar case on the facts of the injury. We have examined all the other errors assigned, and are of the opinion that none of them are sufficient for a reversal.

Affirmed.


Summaries of

McLemore McArthur v. Rogers

Supreme Court of Mississippi, Division B
Apr 2, 1934
169 Miss. 650 (Miss. 1934)

In McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883, 884, a servant was put at a work requiring a constant attention and while so engaged, another servant negligently caused wet concrete to fall into the eyes of the former.

Summary of this case from Lancaster v. Lancaster
Case details for

McLemore McArthur v. Rogers

Case Details

Full title:McLEMORE McARTHUR v. ROGERS

Court:Supreme Court of Mississippi, Division B

Date published: Apr 2, 1934

Citations

169 Miss. 650 (Miss. 1934)
152 So. 883

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