Opinion
No. 30482.
May 1, 1933.
1. MASTER AND SERVANT.
Master, who employs servant to act in concert in performing duties, has nondelegable duty to furnish sufficient number of servants to perform particular duties.
2. MASTER AND SERVANT.
General practice and usage of masters in performing particular work, to relieve master of liability under charge of negligence, must be such as reasonably prudent person would ordinarily employ under like circumstances.
3. MASTER AND SERVANT. In servant's action for injuries sustained when heavy steel rail, being carried with assistance of others, fell against leg, instruction on master's duty to furnish appliances in accordance with general practices and usage of similar business held erroneous.
Instruction, in substance, that master was not required to furnish employees with newest, best, and safest appliances, and authorizing verdict for the master if jury believed that defendant's foreman required steel rail to be carried in accordance with general practice and usage of businesses of same kind, under similar conditions, was erroneous, in view of evidence, and in view of absence of qualifications, so that general practice and usage would be that which reasonably prudent person would ordinarily use or do in like situation.
4. MASTER AND SERVANT. Negligence of lumber company based on failure to furnish sufficient number of employees to carry heavy steel rail which fell against plaintiff's leg, and in not furnishing appliances used for carrying steel rails, and whether negligence was proximate cause of injury, held questions for jury.
Declaration was based upon two distinct theories of negligence, namely, that lumber company failed to discharge nondelegable duty to use reasonable care to furnish sufficient number of employees to carry steel rail which plaintiff, with other employees, was required to carry on the occasion of the injury, and that the lumber company failed to discharge its nondelegable duty in not furnishing steel rods with clamps or tongs thereon, commonly called "dogs," the appliances used for carrying heavy steel rails.
5. APPEAL AND ERROR.
Supreme court may reverse judgment where erroneous instruction was given which influenced jury in unwarranted degree, notwithstanding error was not called to attention of trial court.
APPEAL from the Circuit Court of Pearl River County.
Hathorn Williams, of Poplarville, for appellant.
Under the evidence appellant was entitled to have his case go to the jury on the theory that appellee was negligent in failing to furnish appellant with sufficient help to carry the steel rail that fell upon and injured his leg.
18 R.C.L., par. 101, p. 601; Natural Gas Engineering Corporation v. Bazor (Miss.), 137 So. 788; Pigford v. Railroad Company, 75 S.E. 860, 44 L.R.A. (N.S.) 865; Di Bari v. Bishop Company, 199 Mass. 254, 85 N.E. 89, 17 L.R.A. (N.S.) 773; Rosin v. Lumber Company, 63 Wn. 430, 115 P. 833, 40 L.R.A. (N.S.) 913; Alabama Railroad Company v. Vail, 142 Ala. 134, 38 So. 124, 110 A.S.R. 23.
"Where a master employs servants to act in concert in the performance of their duties, it is the nondelegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; if he fails so to do, 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 Corporation v. Bazor, 137 So. 788.
The lower court erred in granting to appellee the instruction in the following language:
"The court instructs the jury for the defendant that the Lumber Company is not required under the law to furnish its employees with the newest, best and safest appliances for the work required of them, and that if the jury believe from the evidence that the defendant's section foreman required the steel rail to be carried in accordance with the general practice and usage of businesses of the same kind, under similar conditions, then plaintiff cannot recover, and the jury should return a verdict in favor of the defendant although they may further believe that some other way would have been a safer and better way or some other appliance would have been a safer and better appliance with which to carry the rail."
We have searched in vain through all the books at our command and have failed to find a single authority from any court which fixes the test of liability of one master to his servant, touching his negligence regarding his nondelegable duty to that servant, as being made to depend upon the question as to whether other masters under similar conditions have customarily neglected to perform their nondelegable duties in these respects toward their servants.
The instruction complained of is in direct conflict with the instructions for appellant. The instruction excludes from the consideration of the jury both theories of appellant on the question of negligence, and the testimony in support of the same, and is, therefore, manifestly misleading to the jury and fatally defective.
Waddle v. Sutherland (Miss.), 126 So. 201; Godfrey v. Meridian Ry. Light Co. (Miss.), 58 So. 534; Dent v. Town of Mendenhall (Miss.), 104 So. 82; Y. M.V. Railroad Company v. Hawkins (Miss.), 132 So. 743; L. N. Railroad Company v. Cuevas (Miss.), 139 So. 397.
Brady, Dean Hobbs, of Brookhaven, for appellee.
Appellant grounded his declaration on the allegation that "The safe and proper method to carry said steel rail was with eight or more men and with steel rods approximately four feet with clamps or tongs thereon, which steel rods with said clamps or tongs thereon are commonly called `dogs' and is the customary tool used for carrying steel rails." Throughout his declaration, appellant alleged, and sought to prove the allegation at the trial, that "dogs" constituted "the usual customary tool or tools" for the work required of him, and as shown by the allegations of his declaration, he was injured directly and proximately on account of the combined negligence of defendant" in failing to furnish him with the said customary tool or tools and a sufficient number of employees.
"In an action for injuries or damages caused by negligence, as in other civil actions, plaintiff can prove and rely for recovery only on the cause of action or theory presented by his pleadings . . ."
45 Corpus Juris, pages 1130, 1136-37.
"An appellant or plaintiff in error will not be permitted to take advantage of errors which he himself committed, or invited or induced the trial court to commit, or which were the natural consequences of his own neglect . . ."
4 Corpus Juris, pages 700, 701.
Appellant admitted by his instructions that the sole issue for the jury was whether appellee should have furnished the alleged customary tool or tools for carrying a rail, to-wit, rail tongs or rail dogs. The evidence for appellant tended to show that it was the general practice and usual and customary to do so, while appellee's evidence showed to the contrary, as heretofore stated. The jury decided the question in favor of appellee, and in doing so necessarily determined that it was not the general practice and usual and customary to furnish four men with rail tongs or rail dogs for the purpose of carrying a rail.
Appellee respectfully submits that the instruction granted it, was not improper in view of the evidence in this case.
39 Corpus Juris, page 388.
"No liability for negligence attaches to a party, when, in the prosecution of a lawful act, injury to another is caused by a pure accident; nor can anyone be said to be negligent merely because he fails to make provision against accident which he could not be reasonably expected to foresee."
Ingram-Day Lumber Company v. Joh, 107 Miss. 43, 64 So. 934; Gulf, etc., R.R. Company v. Blockman, 87 Miss. 192, 39 So. 479.
Appellant, Willie Jefferson, sued the Denkmann Lumber Company, appellee, for personal injuries sustained by his carrying, with the assistance of other laborers, two heavy steel rails, one of which, as alleged in the declaration, due to its heavy weight, the insufficient number of men carrying it, and the lack of necessary appliances for doing the work, causing one of the men supporting the rail to stumble, and thereby letting it fall on the right leg of appellee and injuring him. An issue was made in the lower court resulting in a verdict by the jury for the appellee, and appeal is prosecuted here.
The declaration counted upon two distinct theories of negligence: First, that the appellee lumber company failed to discharge its nondelegable duty to use reasonable care to furnish a sufficient number of employees to carry the steel rail which Jefferson, with the other employees, was required to carry on the occasion of the injury; and, second, that appellee lumber company failed to discharge its nondelegable duty in not furnishing steel rods with clamps or tongs thereon, commonly called "dogs," the appliances used for carrying heavy steel rails.
The evidence and the instructions of the court were based pro and con on the two allegations; and there was evidence, if believed by the jury, which would have warranted it in finding a verdict for the appellant. In short, the evidence was that the Denkmann Lumber Company furnished only four men with which to carry six-hundred-pound steel rails by hand, when reasonable care and prudence required the use of more than four men for such service; and, alternatively, it was shown by the plaintiff, Jefferson, by evidence, that the use of tongs or "dogs" was the reasonable and prudent way to have steel rails carried, the tongs being a metal appliance which clamped the rail and permitted those engaged in the work to stand a foot or two from the rail and walk straight forward, while if carried by hand, the lifter had to walk sideways holding the rail itself in his hand; and if one of the lifters stumbled, it would throw an additional load on the others.
There was evidence for the appellee showing that four men were ample to discharge the particular duty, and that in the opinion of the witnesses, the carrying by hand of the steel rails, without the use of tongs, was a safer and better way.
We shall not set forth the evidence in detail, as the case must be reversed for another trial.
The two issues were presented to the jury for both sides by instructions setting forth the two theories. However, the court granted the following instruction in behalf of the appellee: "The court instructs the jury for the defendant that the Lumber Company is not required under the law to furnish its employees with the newest, best and safest appliances for the work required of them, and that if the jury believe from the evidence that defendant's section foreman required the steel rail to be carried in accordance with the general practice and usage of businesses of the same kind, under similar conditions, then plaintiff cannot recover, and the jury should return a verdict in favor of the defendant although they may further believe that some other way would have been a safer and better way or some other appliance would have been a safer and better appliance with which to carry the rail." (Italics ours.)
The rule applicable to this case where employees are required to act in concert in the performance of their duties is quite well settled and was last announced in the case of Natural Gas Engineering Corporation v. Bazor (Miss.), 137 So. 788 (not reported in State Report), in this language: "Where a master employs servants to act in concert in the performance of their duties, it is the nondelegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; and if he fails so to do, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury."
The instruction set forth above must be based upon the following evidence of the witness Adams, offered in behalf of appellee:
"Q. Do you know anything about the handling of rails and the different methods used by men in replacing rails? A. They grab a hold with their hands mostly.
"Q. State whether or not that is safe? A. Safer than tongs, yes, sir.
"Q. Why, Mr. Adams? A. You could break the rivet out of a tong.
"Q. I want to ask you if that is the usual and customary way to handle rails? A. That's the usual and customary way."
This evidence, it will be seen, is very unsatisfactory as to the custom in such work, but was not disputed, nor objected to, in the record. Therefore, the jury were, in effect, told that if they believed this bit of evidence, then the plaintiff, the appellant, could not recover, and it would be the duty of the jury to return a verdict in favor of the defendant.
In the case of Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111, this court said that the evidence of a custom obtaining in other businesses of like kind was competent but not conclusive. The instruction, in our opinion, from this bit of evidence was conclusive upon the jury, and the question of negligence vel non in the particular case was by the court eliminated from the minds of the jury.
Although not cited by appellee in his brief, we have considered the cases of Jones v. Y. M.V.R.R. Co., 90 Miss. 547, 43 So. 813; Kent v. Y. M.V.R.R. Co., 77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 534; Hatter v. I.C.R.R. Co., 69 Miss. 642, 13 So. 827, and we are of opinion that these cases do not in the least militate against the conclusion we have reached in the case at bar. We are further of the opinion that it was not sufficient for the appellee to rest his case upon the fact that other businesses of like kind were accustomed to having rails carried under the same conditions, as was done in this case; but in order to render this evidence satisfactory to any ordinary mind, the evidence and instructions should have been qualified so that the true principle announced would be that the general practice and usage in that which a reasonably prudent person would ordinarily use or do in a like situation. This was omitted from the instruction. In other words, this evidence applied to the above instruction told the jury that if other people were negligent and careless and failed to discharge a nondelegable duty by not doing a particular thing, even though it was done negligently, and without regard to the servant's rights, the negligent act of a number of masters would relieve the particular master from his nondelegable duty. That others are negligent does not relieve the individual brought into court for his negligence or failure to discharge a duty which he cannot delegate.
In the case of C., M. St. P. Railroad Company v. Moore, 92 C.C.A. 357, 166 Fed. 663, 668, 23 L.R.A. (N.S.) 962, Judge VAN DEVANTER, speaking for the circuit court of appeals of the United States in the district of Minnesota, among other things, said: ". . . The ultimate and controlling test of the exercise of reasonable care is, not what has been the practice of others in like situations, but what a reasonably prudent person would ordinarily have done in such a situation. The law is not so unreasonable as to afford no test where there has been no practice by others with which the conduct in question can be compared; nor does it permit common sense and reason to lose their sway because, through ignorance, inattention, or selfishness, an unreasonable practice has prevailed." In the same case, Judge SANBORN, in his concurring opinion, said: "`The duty of the defendant towards him was the exercise of reasonable care in furnishing and keeping its machinery and appliances, about which he is required to perform his work, in a reasonably safe condition. It was the defendant's duty also to use like ordinary care in selecting competent fellow servants and in a sufficient number to insure that the work would be safely done; and this duty was discharged by the defendant if the care disclosed by it in these several matters accorded with that reasonable skill and prudence and care which careful, prudent men, engaged in the same kind of business ordinarily exercise.'" See, also, Texas Pacific Railroad Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905; Wabash Railway Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 932, 27 L.Ed. 605; Union Pacific Railway Co. v. Daniels, 152 U.S. 684, 14 S.Ct. 756, 38 L.Ed. 597.
There is no merit in the appellee's contention that the declaration did not warrant the submission of the two theories to the jury, as the evidence and appellee's instructions negative its idea. We think the declaration is plain as we have above set forth. Nor is there any merit in appellee's contention that it was entitled to a peremptory instruction. The question was properly submitted to the jury as to whether or not there was negligence and whether or not such negligence proximately caused the injury.
There is no merit in the contention that the defect in the instruction was not called to the attention of the court below. We have long since passed that day. It may be fairer to the court below, but the rule does not obtain in this jurisdiction. The instructions are a part of the record, and are properly considered in this court as a part thereof; and if an erroneous instruction is given which we think influenced the jury in an unwarranted degree, it is proper for us to reverse even though the court below did not have the error in the particular instruction in mind. The other instructions taken together do not cure the error pointed out in the above instruction, and it is fatal.
Complaint is made of other instructions granted to the appellee, subject perhaps to criticism, but we think upon another trial these criticisms will disappear.
Reversed and remanded.