Opinion
No. 32312.
November 2, 1936. Suggestion of Error Overruled November 30, 1936.
MASTER AND SERVANT.
Evidence that foreman denied employee's request for help to haul wheelbarrow loaded with two sacks of cement, each weighing ninety-eight pounds, and other articles directed to be hauled aggregating about one hundred pounds, over railroad tracks, and directed employee to haul cement or get off job, held insufficient for jury on issue whether rupture sustained by employee in lifting loaded wheelbarrow over tracks with another employee was result of employer's negligence, where foreman did not direct manner of crossing tracks, and employee selected own method, knowing that sacks could easily have been lifted across separately.
APPEAL from circuit court of Lamar County. HON. HARVEY McGEHEE, Judge.
Davis Davis, of Purvis, for appellant.
The charge of compulsion was not established by the testimony so that the case then rests upon whether or not there was negligence on the part of appellant in not furnishing additional help and more than two men to lift a ninety-eight pound sack of cement across a shallow ditch and over a five inch rail and on to the embankment beyond.
G. M.V.R.R. Co. v. Nutt, 120 Miss. 93, 81 So. 642; Truly v. J.E. North Lbr. Co., 83 Miss. 430, 36 So. 4.
The rule is well settled that a man is the best judge of his own strength and ability to do the work assigned by the master to be performed.
39 C.J. 800, par. 1005; Knorpp v. Wagner, 93 S.W. 961; International Cotton Mills v. Webb, 96 S.E. 16; Stenvog v. Minnesota Transfer Co., 108 Minn. 199, 121 N.W. 903, 25 L.R.A. (N.S.) 362, 17 Ann. Cas. 240.
In the case at bar the master, through the foreman, directed the appellee to take the wheelbarrow and get the cement and bring it to the mixing box. He gave no direction to him as to how he should do it but, according to appellee's own testimony, all he said was, you do what I ordered you to do or get off of the job. Appellee testified that the foreman was not present at the railroad crossing. That he, the appellee, could have taken off the cement sack by sack and carried it across. That he could have required his co-laborer to have taken one end of it and he the other and carried it across, all of which could have been done in perfect safety. This, however, he did not do. He chose to carry the wheelbarrow and cement across in the manner described, that is by appellee taking the wheel of the wheelbarrow and his co-laborer the handles and lifting it over the ditch and the railroad track. In performing his duties in the way thus selected by him, he claims to have received his injury by over-lifting and straining himself.
It is a well settled rule that where an employee is ordered to perform certain work but is not given any direction as to the manner of performing it, and he is injured because he chooses a dangerous manner of executing the order, although there is a way to execute the order without any danger to himself, he assumes the risk incident to the work.
Southern R.R. Co. v. Logan, 138 Fed. 725; Jenney Electric Light Co. v. Murphy, 115 Ind. 566, 18 N.E. 30; Russell v. Tillotson, 140 Mass. 201, 4 N.E. 231.
E.F. Coleman, of Purvis, for appellee.
The case at bar rests upon the proposition that appellee was compelled to do what he did do in order to hold his job; that is, the appellee in lifting the wheelbarrow across the railroad track, heavily loaded as it was, was done under orders of the foreman coupled with the threat that if he did not do as he was directed to get off the job and go home, meaning that he would lose his job.
It is a well settled proposition of law in this state that it is the duty of the master to furnish and maintain a sufficient number of men to do the work assigned. And that where the work is of such a nature as to require men to do the work then the men engaged in the work are classed in the same category as appliances and the master owes the duty to furnish a sufficient number of men to do the work.
Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 167 Miss. 246, 148 So. 237.
Where the master employs servants to act in concert in the performance of their duty, it is the non-delegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; if the master fails to do so, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury.
Natural Gas Engineering Corp. v. Bazor, 137 So. 788.
It is also a well settled proposition of law in this state that where the master commands the servant to do work, coupled with the warning that if he does not do it he will be discharged, obedience by the servant is not voluntary, it is compulsory, and the overexertion causing the injury is compulsory overexertion. A servant is not free to act when disobedience to his master means the loss of his job.
Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792; Jefferson v. Denkmann Lbr. Co., 167 Miss. 152, 148 So. 237.
It is a well settled principle of law in this state that an employee shall not be held to have assumed the risk of his employment where injury or death results in whole or in part from the negligence of the master.
Gulf Ship Island R.R. Co. v. Bryant, 147 Miss. 421, 111 So. 451; Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 167 Miss. 152, 148 So. 237; 39 C.J., pages 523, 525, para. 629; 18 R.C.L. 601, para. 101.
It is a well established rule of law in this state that where evidence is conflicting on an issue, it is proper to submit it to the jury for its decision.
Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811; Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Newton v. Homochitto Lbr. Co., 162 Miss. 20.
It is also well settled in this state that where there is substantial evidence tending to establish the plaintiff's case, verdict may not be directed for the defendant.
Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Newton v. Homochitto Lbr. Co., 162 Miss. 20; Hutchinson v. Gaston, 128 Miss. 487, 91 So. 193; L. N.R.R. Co. v. Jones, 134 Miss. 58, 98 So. 230; Gunter v. Y. M.V.R.R. Co., 145 Miss. 475, 111 So. 105.
This court has repeatedly held that a verdict of the jury based upon conflicting evidence is conclusive.
Thompson v. Poe, 104 Miss. 586, 61 So. 656; W.O.W. v. McDonald, 109 Miss. 167, 68 So. 74; Mardis v. Y. M.V.R. Co., 115 Miss. 734, 76 So. 640; Estes v. Jones, 119 Miss. 142, 80 So. 526; Williams Yellow Pine Co. v. Henley, 155 Miss. 893; Miss. Central R.R. Co. v. Roberts, 173 Miss. 487.
Argued orally by T.W. Davis, Sr., for appellant, and by E.F. Coleman, for appellee.
The appellee recovered a judgment in the court below against the appellant for an injury to his person alleged to have been caused by the appellant's negligence. One of the assignments of error challenges the overruling of the appellant's request for a directed verdict.
Highway No. 11 crosses the New Orleans Northeastern Railroad track. The highway was being depressed so as to pass under the railroad track and was also being paved, the work being done by the appellant. The appellee was one of its employees. Cement used in this construction work was stored a short distance from the mixer, but the railroad track passed between the two places. The declaration contains two counts with only one of which we are here concerned, and which alleges that the appellant was negligent in failing to furnish a sufficient number of persons to do the work in which the appellee was engaged. The declaration alleges that "the defendant had in its employ a foreman by the name of Yates whose duty it was to supervise the building or paving of the said underpass and direct the movement of the laborers and employees of the defendant. That on said date the said foreman Yates ordered the plaintiff and a negro by the name of Edgar Connelly to take a wheelbarrow and roll the cement from the small house or room aforesaid to the concrete mixer. That in order to reach the concrete mixer from the small house or room the said plaintiff and his co-laborer were forced to cross the track of the said railroad company aforesaid, and that the said track was not level with the ground but was somewhat elevated above the ground and there was no way provided by the defendant to roll the said wheelbarrow across the said track and on account thereof the said wheelbarrow had to be lifted and carried across the said track aforesaid and this was done by the plaintiff taking hold of the wheel and the other co-employee or co-laborer taking hold of the handles of the said wheelbarrow and lifting same across the track. That when the said wheelbarrow was loaded with the cement as instructed by the foreman of the said defendant the same was too heavy for the said plaintiff and his co-laborer to lift across the said track with reasonable safety.
"Plaintiff alleges that in compliance with the orders of the said defendant through its said foreman Yates, plaintiff and his co-laborer rolled one load of the said cement from the said small house or room to the concrete mixer, whereupon plaintiff then informed the said foreman Yates that the work was too heavy and dangerous for the said plaintiff and his co-laborer and requested the said defendant to either furnish another employee to assist them in lifting the wheelbarrow loaded with cement across the said railroad tracks or permit him to carry the said cement on his shoulder and provide a safe way across the said track aforesaid, whereupon the said defendant acting through its said foreman Yates negligently refused to furnish another laborer or employee to assist the said plaintiff and his co-laborer and also refused to provide a safe way across the said railroad track but then and there ordered and directed the said plaintiff and his co-laborer to roll the said cement in the said wheelbarrow as he had ordered them to do and to also be in a hurry about same or get off of the job, and also at the same time negligently ordered and directed the plaintiff to bring tools and chains on their next load in addition to the cement, and also advised the said plaintiff to hurry up with the said cement and tools and chains and advised him to either do as directed or get off the job.
"Plaintiff alleges that in compliance with the orders of the said defendant acting through its said foreman he and his co-laborer loaded the said wheelbarrow with the said cement and tools and chains as instructed and ordered by the said defendant and when they reached the said railroad track aforesaid with the said wheelbarrow loaded as aforesaid the said plaintiff and his co-laborer attempted to lift same across the said railroad track as he was required and ordered to do by the said defendant in order to get the said cement and tools and chains to the said concrete mixer, and in so doing plaintiff strained his back and right side and the ligaments, tendons and muscles of his back and right side were torn and strained and he also sustained a rupture on account of the said straining, and on account of the said injuries he suffered great physical pain and agony and mental anguish . . . and has so suffered ever since."
The cement was packed in sacks, each weighing ninety-eight pounds. The declaration does not allege how many sacks the appellee was supposed to haul at a time, but, according to the evidence, he was directed to carry two sacks each time. What occurred between the appellee and the foreman was not in accord with the allegations of the declaration. According to the evidence, it was this: The appellee and his helper each hauled one sack of cement to the mixer, whereupon the appellant's foreman directed them to haul two sacks at a load, and also directed the appellee to carry a chain and one or two other articles, aggregating about one hundred pounds in weight, to the mixer. The appellee then told the foreman that the load would be heavier than they could cross the railroad track with and requested additional help therefor. The foreman declined to furnish this help, and told the appellee to haul the cement or get off the job. When the appellee and his helper reached the railroad track with the next load, the appellee's wheelbarrow containing two sacks of cement and the additional articles he was directed to carry to the mixer, together they lifted the wheelbarrows across the track, one at a time, each helping the other; while crossing the track with the appellee's wheelbarrow he says he received a severe strain and rupture from which he still suffers. The appellee says he knew the load was too heavy for him to lift, but that he was obeying the foreman's direction to either carry the cement across the track or get off the job. The cement and other articles could have been easily carried across the track by one man carrying one sack at a time and then the other articles.
The evidence does not disclose that the foreman told the appellee what method to pursue in crossing the track; the inference therefrom is that he meant for the wheelbarrows to be rolled across. The appellee selected his own method of crossing the track, and instead of carrying the cement across one sack at a time, as he says he could have easily done, he adopted a more difficult way and one which, according to his own evidence, he knew would overtax his strength. The appellee's injury was not the result of an attempt to cross the railroad track in a manner directed by the appellant's foreman, but in a manner selected by himself, and therefore was not occasioned by any negligence of the appellant. The appellant's request for a directed verdict should have been granted.
Reversed, and judgment here for the appellant.