In Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, 348, it was stated: "We are of the opinion that the action of the court in refusing the peremptory instruction for the appellant was correct, for the reason that everything must be considered as proved which the evidence establishes, directly or by reasonable inference, against the party asking for a peremptory instruction."Summary of this case from Bankston v. Dumont
February 28, 1938. Suggestion of Error Overruled April 25, 1938.
1. MASTER AND SERVANT.
In action against bridge builder for personal injuries sustained by employee who slipped on creosoted log and fell from temporary bridge, whether bridge builder, in using a few slippery creosoted logs in constructing bridge consisting of four parallel stringers made of rough logs from 12 to 14 inches in diameter, placed from 12 to 14 inches apart, used reasonable care to furnish reasonably safe place for employees to walk held for jury.
2. MASTER AND SERVANT.
In determining whether bridge builder, in using a few slippery, creosoted logs in constructing temporary bridge consisting of parallel stringers made of rough logs from 12 to 14 inches in diameter, used reasonable care to furnish reasonably safe place for employees to work, it was for jury to consider whether place could have been made reasonably safe by placing a 3 by 10 plank between the two stringers on each side of bridge or by adopting some other means of rendering bridge safe.
3. MASTER AND SERVANT.
A bridge builder's employee injured in fall from temporary bridge consisting of parallel stringers did not, by using that undecked bridge, assume risk incident to its use, since a servant assumes only dangers incident to service remaining after master has exercised reasonable care for servant's safety and does not assume risk of master's negligence in not furnishing reasonably safe place to work (Code 1930, section 513).
In suit by employee of bridge builder to recover for injuries sustained in fall from temporary bridge, instruction that if bridge builder knew that temporary bridge was being used by his men in performing their duties, he had duty to exercise reasonable care to render bridge reasonably safe was not erroneous on ground that it assumed that bridge was not reasonably safe.
Everything which evidence establishes directly or by reasonable inference must be considered as proved against party asking for peremptory instruction.
APPEAL from the circuit court of Newton county. HON. D.M. ANDERSON, Judge.
Gilbert Cameron, of Meridian, and Nichols Huff, of Forest, for appellant.
The peremptory instruction requested by the defendant should have been given. (a) If the stringers were dangerous for appellee the danger was obvious. (b) The appellee refused the safe passage by boat offered him by appellant; and voluntarily attempted to walk the bridge stringers. (c) The appellee had the choice of three ways across the creek. He chose the only way on which the accident possibly could have happened. (d) The appellee elected a different, and to him dangerous, way to cross the creek, instead of the safe way provided by appellant.
Tatum v. Crabtree, 94 So. 449, 130 Miss. 462; Dobbins v. Lookout O. R. Co., 97 So. 546, 133 Miss. 248; Stokes v. Adams-Newell Lbr. Co., 118 So. 441, 151 Miss. 711; Anderson v. McGrew, 122 So. 492, 154 Miss. 291; Goodyear Yellow Pine Co. v. Clark, 142 So. 443, 163 Miss. 661; Eastman-Gardiner Hardwood Co. v. Chatham, 151 So. 556, 168 Miss. 471; Brown v. Coley, 152 So. 61, 168 Miss. 778; Hammontree v. Cobb Bros. Const. Co., 152 So. 279, 168 Miss. 844; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719; Martin v. Beck, 171 So. 14, 177 Miss. 303; Ross v. L. N.R.R. Co., 172 So. 752, 178 Miss. 69.
The court erred in giving the first instruction for appellee. (a) The instruction predicates liability upon the appellant's knowledge of and permission in the use of the bridge to cross the creek, when he had provided another way. (b) It is the equivalent of a peremptory instruction that the bridge was not reasonably safe as a passage way, when the weight of the evidence is to the contrary. (c) It deprives the appellant of his right to expect the appellee to take care of himself as to obvious or manifest dangers. (d) It assumes that the bridge was dangerous as a walk-way and predicates liability on danger alone. (e) It takes out of consideration by the jury the question whether the appellant followed the usual and customary method generally employed by careful and prudent men engaged in the same business, and nullifies the fourth instruction given for the appellant, which correctly announces the law on that point.
Brown v. Coley, 152 So. 61, 168 Miss. 778; Ross v. L. N.R.R. Co., 172 So. 752, 178 Miss. 69; Edwards Hines Lbr. Co. v. Dickinson, 125 So. 93, 155 Miss. 674; Hammontree v. Cobb Bros. Const. Co., 152 So. 279, 168 Miss. 844; Newell Contracting Co. v. Flynt, 161 So. 298, 172 Miss. 719.
The court erred in refusing the appellant's fourth and eighth refused instructions. (a) The refusal of these instructions took from the jury's consideration the undenied fact that the appellant maintained a boat in which the appellee might have crossed the creek in absolute safety against the particular injury which he sustained. (b) Their refusal in effect denies the right of the master to expect the servant to use the safe method provided; and holds the master for injury to the servant resulting from his own wrong and disobedience.
The court erred in refusing the sixth and seventh refused instructions.
The court erred in refusing the appellant's fifth refused instruction. (a) The refusal of this instruction is tantamount to making the master the insurer of the safety of the servant. (b) It requires impracticable and infeasible practices.
The overwhelming weight of the evidence is contrary to the verdict.
The facts and circumstances were insufficient to support the verdict.
Y. M.V.R.R. Co. v. Lamensdorf, 177 So. 50.
D.M. Graham and Mize, Thompson Mize, all of Gulfport, for appellee.
The temporary bridge was constructed by the defendant for the transportation of machinery and materials and also for the passage of employees going to and fro across said creek about the defendant's business of constructing the main bridge; and this being so it was the duty of the defendant to exercise reasonable care to maintain this temporary bridge in a reasonably safe condition for the passage of the plaintiff and other employees over said creek when engaged about the defendant's business. This principle of law is recognized by all of the authorities on the subject.
It is the master's nondelegable, paramount and continuing duty to exercise reasonable care to furnish a reasonably safe place for his servants and only after he has performed this duty does the assumption of risk by the servant come into play.
Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Murry v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Edwards v. Hanyes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Gow Co. v. Hunter, 168 So. 264, 175 Miss. 896; Norton v. Standard Oil Co., 171 So. 691, 177 Miss. 758.
It is the nondelegable duty of the master to exercise reasonable care to provide and maintain a reasonably safe place for his servants to work.
Oil Mill Co. v. Ellis, 72 Miss. 191, 17 So. 214; Gulf Refining Co. v. Ferrell, 65 Miss. 296, 147 So. 476; Murry Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Y. M.V.R.R. Co. v. Smith, 150 Miss. 882, 117 So. 339; Hardy v. Turner-Farber-Love Co., 101 So. 489.
Though there may be two ways open to a servant in which to perform his work, one of which turns out to be less dangerous than the other, and he adopts the other, yet if that way is not so dangerous that a person of ordinary prudence would not have undertaken it, it cannot be said that the servant was guilty of negligence because he chose the way which was reasonably safe but which was not the safer.
Headrick v. H.D. Williams Cooperage Co., 134 S.W. 957, 97 Ark. 553; Southern Coal Coke Co. v. Swinney, 42 So. 808, 149 Ala. 405; Thompson v. Chicago M. St. P. Ry., 132 N.W. 158, 27 S.D. 567; Lagenfeld v. Union Pac. R. Co., 123 N.W. 1086, 85 Neb. 527; Brady v. Florence C.C.R. Co., 98 P. 321, 44 Colo. 283; Arnold v. Douglas Co., 155 N.W. 845, 175 Iowa 405; Reynolds-West Lbr. Co. v. Taylor, 23 F.2d 36; Pittman v. LaFontaine, 68 Fed. 2d 469; National Box Co. v. Wroten, 66 F.2d 86; G. V.R.R. Co. v. Groome, 52 So. 703, 97 Miss. 201; Edwards v. Hanyes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Murray v. Natchez Drug Co., 56 So. 330, 100 Miss. 260; Standard Oil Co. v. Franks, 149 So. 798, 167 Miss. 282; Texas Co. v. Jackson, 165 So. 546, 174 Miss. 737; Gow Co. v. Hunter, 168 So. 264, 175 Miss. 896; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Sea Food Co. v. Alves, 77 So. 857; Hamilton Bros. v. Narcisse, 158 So. 467; Beadle v. Spencer, 298 U.S. 124; Hardy v. Turner-Farber-Love Co., 101 So. 489; Gillespie v. Thornton, 117 So. 714.
On the point involving the request for a peremptory instruction, or a motion to direct verdict, the court must concede to be true, all of the evidence supporting the view of the parties against whom motion is made giving him benefit of all legitimate inferences. While authority on this point can be multiplied almost without end, so universal is this rule, we cite only a few of the better selected cases:
N.O. N.E.R.R. Co. v. Penton, 100 So. 521, 135 Miss. 571; N.O. N.E.R.R. Co. v. Jackson, 105 So. 770, 140 Miss. 375; N.O. N.E.R.R. Co. v. Martin, 105 So. 864, 140 Miss. 410; Yates v. Houston and Murray, 106 So. 110, 141 Miss. 881; Lowe v. M. O.R.R. Co., 116 So. 601, 149 Miss. 881; M. O.R.R. Co. v. Clay, 125 So. 819, 108 Miss. 463; Lee County Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422; Keith v. W. M.V.R.R. Co., 151 So. 916, 168 Miss. 519; Gravett v. Golden Saw Mill Trust, 154 So. 274, 170 Miss. 15; Masonite Corp. v. Denis, 168 So. 613, 175 Miss. 855.
The court properly submitted all issues to the jury, properly raised under the pleadings and the testimony, and the court was not required to give any instruction not in response to the issue nor to multiply the instruction already given and if the instructions as a whole correctly stated the law there is no error.
McIntyre v. Cline, 30 Miss. 361, 64 Am. Dec. 163; Whitfield v. Westbrook, 40 Miss. 311; Burns v. Kelly, 41 Miss. 339; Heirn v. McCaughn, 32 Miss. 17, 66 Am. Dec. 588; Herndon v. Bryant, 39 Miss. 335; Hunt v. Crane, 33 Miss. 669, 69 Am. Dec. 381; Davis v. Heck, 79 So. 59, 118 Miss. 74 ; Natchez S.R.R. Co. v. Guice, 101 So. 439, 136 Miss. 307; Williams v. City of Gulfport, 141 So. 288, 163 Miss. 334.
Where instructions taken as a whole present the jury a proper guide they were sufficient, notwithstanding some instructions if taken alone might be inaccurate and erroneous.
Pearl River Valley Railroad Co. v. Moody, 171 So. 769; Yorkshire Ins. Co. v. Brew, 166 So. 361, 175 Miss. 538; Cox v. Dempsey, 171 So. 188; N.O. N.E.R.R. Co. v. Hegwood, 124 So. 66, 155 Miss. 104; Stevens v. Locke, 125 So. 529, 156 Miss. 182; Y. M.V.R.R. Co. v. Mullen, 131 So. 101, 158 Miss. 774; Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792, 168 Miss. 152; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65.
Argued orally by J. Knox Huff, for appellant, and by Robert W. Thompson, Jr., for appellee.
This is an appeal from a judgment of the circuit court of Newton county in the sum of $7,500, rendered in favor of the appellee for personal injuries sustained by falling from a temporary bridge constructed by the appellant across Red creek in Stone county for use in connection with the building of a permanent concrete and steel bridge across said creek by the appellant under a contract which he had with the Mississippi State Highway Commission.
The temporary bridge was durably constructed, and was such a bridge as is customarily used by bridge builders to parallel the course of the permanent bridge, and intended primarily for use in moving heavy machinery to and fro in the work of constructing the permanent bridge so long as the machinery is needed for that purpose, although it is frequently used during this time by the laborers on such jobs, as a means for walking to and from their work. Thereafter it is used as a bridge for transporting materials on trucks, etc., to where the same are needed in the work on the permanent bridge across the stream as the construction progresses. The stringers on this temporary bridge were made of rough logs, from 12 to 14 inches in diameter, and were placed from 12 to 14 inches apart, two on each side, extending across the entire length of the bridge, so that when used as footlogs by the laborers in performing their work they constitute a sort of double track not too wide for the stride of a normal man, although most of the laborers who walk upon them confine their steps to a single stringer. These four stringers constitute the entire top surface of this temporary bridge, other than the cross-pieces on which they are fastened, and consist of rough, round logs of the dimensions hereinbefore stated, some sweetgum, mostly pine, and a few creosoted logs strung along the route of the approximately 200-foot length of the bridge, but not more than one creosoted log was used in a single bent. These logs spanned a distance several feet long between the end of each bent, where the piling was driven, four in a row, crosswise underneath the same.
The proof discloses that these creosoted logs were slippery, especially so when the sun drew the oil to the surface. Appellant had provided a small boat or skiff for the use of the appellee and the other employees in crossing the stream, to go to and from their work, which was sufficient to convey five or six men at a time, and a rule was promulgated, whereby a laborer was always furnished to convey the boat from one side of the stream to the other when needed by another laborer in going to and from his work. This was the method used by the laborers in crossing the stream until the temporary bridge had reached the stage of completion where the stringers had been securely fastened on top thereof; and the testimony shows, without substantial conflict, that this boat continued to be available for use for those who desired to cross the stream by that method; but that the use of the boat was entirely abandoned by most of the laborers after the temporary bridge had reached such state of completion, and that thereafter most of the laborers constantly walked the log stringers on the bridge in going to and from their work, with the knowledge and acquiescence of the appellant. In other words, the temporary bridge became the usual and customary method followed by the laborers in crossing the stream in the performance of their work.
The appellee was employed as a pile-driver foreman, and the pile driver was one of the heavy machines operated on the temporary bridge in the construction of the permanent bridge. He testified that he had crossed the temporary bridge from the south to the north side by walking the stringers, for the purpose of ascertaining from a crew of workmen near the north end of the bridge when they would be ready for him to move the pile driver to that place; and that on returning he had walked a short distance when he stepped on one of the slippery creosoted log stringers and fell into the stream, striking his knee against the end of a log, and fracturing it so that he was severely injured and crippled for life. The testimony is in conflict as to whether he was engaged about his duties at the time he undertook to cross the bridge; but the jury determined that issue of fact in his favor. The testimony on the part of the appellant showed that appellee was intoxicated at the time he fell, and that this condition was the proximate cause of his fall and injury; but the appellee and his witnesses denied positively that he had been drinking; and this issue was likewise determined in his favor by the jury.
The ground of negligence charged and relied upon by the appellee was that the appellant failed to exercise reasonable care to furnish him a reasonably safe place to work, in that the appellant failed to place decking or flooring across the stringers on which the laborers could walk in performing their work when the bridge came into constant use by the laborers as a means of going to and from their work. The proof discloses that customarily temporary bridges such as this, commonly used in connection with the construction of a permanent concrete and steel bridge, were not decked or floored until after the use of heavy machinery thereon had ceased. The proof on behalf of the appellant established the fact that one of the heavy machines used on the temporary bridge was a machine consisting of a crane or boom weighing approximately 29 tons, which was moved along the bridge by means of laying its own track on top of the stringers, which track consisted of mats about 4 feet wide and 10 feet long, constructed in two layers of 3 by 8, or 3 by 10 lumber, which mats were swung around by the machine in front thereof, and then picked up and laid again as the crane proceeded along the bridge; that it was impracticable to deck the bridge with the decking commonly used for flooring a bridge for the use of trucks until after the work of this heavy machine and the pile driver had been completed, for the reason that this machine would break and crush to pieces such decking.
On behalf of the appellee, it was shown that while it may not have been customary to deck the bridge in this manner while the heavy machine was still being used thereon, the mats used as a track for the machine could have been laid on top of the decking. In answer to this contention the appellant offered evidence to show that even then the weight of the machine would break and ruin some of the decking, unless the stringers were of uniform size, so as to form a level passageway.
Except for the fact that this temporary bridge contained several creosoted stringers on which any of the laborers were likely to step when momentarily forgetful of the particular type of stringer over which they were walking, we should be inclined to hold, under the authority of the cases of Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98, 99; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Brown v. Coley, 168 Miss. 778, 152 So. 61; Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279, and Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 743, that the appellant was not liable; that to require an employer to deck the bridge while the heavy machinery was still being used thereon, and before it was ready for use by the trucks in hauling other material, would be to impose an extraordinary burden on the employer, contrary to the usual custom followed by prudent bridge contractors under similar circumstances. But the testimony of the appellee shows that the presence of these creosote logs, on one of which he stepped, slipped, and fell, was the sole proximate cause of his injury, and no reason was assigned by appellant for placing these slick logs on the bridge; and even though it may not have been customary to deck a bridge of this character when constructed entirely of rough logs in the usual manner, at that state of its completion, we are of the opinion that it was a question for the jury to determine whether the employer had used reasonable care to furnish a reasonably safe place for his employees to work, in view of the presence of these slippery creosoted logs in the walkway across the stream on the occasion complained of.
In determining this question, it was for the jury to consider whether or not the place could have been made reasonably safe by placing a plank of 3 by 10 lumber between the two logs or stringers on each side of the bridge, or by adopting some other practical means of rendering the place reasonably safe. It is true that the negligence charged was the failure to deck or floor the bridge; but it was still for the jury to say whether or not this should have been done in the exercise of reasonable care in the instant case, where the employer chose to leave these slippery creosoted stringers there to form a part of the walkway, then being commonly used by the laborers with the knowledge and approval of their employer.
Considerable argument is made to the effect that the appellee knew that the bridge was not decked, and assumed the risk incident to its use; but the servant did not assume the risk of the master's negligence in not furnishing a reasonably safe place to work. The risk which a servant assumes is the danger incident to the service remaining after the master has exercised reasonable care for the safety of the servant. Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; section 513, Code of 1930; Edwards v. Hanyes-Walker Lumber Co., 113 Miss. 378, 74 So. 284; Gow Co., Inc., v. Hunter, 175 Miss. 896, 168 So. 264. In the Wilbe Case the court also upheld and reaffirmed the principle that even though another way was provided, such as furnishing the boat in the present case, if it was the habit and custom, known to the employer, for the servant to use another way or route of passage, and the employer acquiesces in such custom, it would not constitute negligence on the part of the servant to use the way or route commonly used, in the usual and customary manner. To the same effect is Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489. In the cases of Stokes v. Adams-Newell Lumber Co., 151 Miss. 711, 118 So. 441, Anderson v. McGrew, 154 Miss. 291, 122 So. 492, and Martin v. Beck, 177 Miss. 303, 171 So. 14, relied on by appellant, the choice of another way by the servant, which was the one customarily used at the time of the injury with the knowledge and approval of the master in preference to a safe way primarily provided by the master for the purpose, was not involved, and this principle, as announced in the Hardy and Wilbe Cases, was not under consideration.
This view disposes of the assignments of error for the refusal of instructions asked by the appellants, which sought peremptorily to instruct the jury that the appellee was guilty of negligence on the occasion complained of, either as to his choice of a route, or the assumption of risk incident to the one used.
Appellant next contends that the court below erred in instructing the jury that if they believed that the temporary bridge was the way generally and customarily used for the men to walk on in performing their duties; and if they further believe from the evidence that the defendant knew, or was aware, that the temporary bridge was so used by his men in the course of their employment, and having such knowledge, permitted it to be done, and used it himself, then it was the defendant's duty to exercise reasonable care to render such temporary bridge reasonably safe for such use — the ground of the objection being that the instruction assumed that the place was not reasonably safe. We do not think that the instruction is subject to this interpretation. It merely states the duty of the defendant under these circumstances. And the other instructions given for the plaintiff required the jury to believe, from the preponderance of the evidence, that the defendant had not exercised reasonable care to make the place reasonably safe, and to believe that it was not reasonably safe, before they were entitled to return a verdict in his favor. All of the instructions given, both for the plaintiff and for the defendant, fairly and correctly present the issue of negligence to the jury.
We are of the opinion that the action of the court in refusing the peremptory instruction for the appellant was correct, for the reason that everything must be considered as proved which the evidence establishes, directly or by reasonable inference, against the party asking for a peremptory instruction. New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans N.E.R. Co. v. Martin, 140 Miss. 410, 105 So. 864; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Lowe v. Mobile O.R. Co., 149 Miss. 889, 116 So. 601; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Masonite Corporation v. Dennis, 175 Miss. 855, 168 So. 613.