Opinion
No. 33427.
December 12, 1938.
1. MASTER AND SERVANT.
In action for injuries sustained by employee engaged in loading box car with fertilizer when "Georgia Buggy" which employee was rolling into car was struck by empty buggy, of another employee going out of car, whether employer, which ordered employees to discontinue the safe way of taking care of themselves of having employees coming out of car wait for those coming in, without substituting another safe way, was negligent was for jury.
2. MASTER AND SERVANT.
An employee engaged in loading box car with fertilizer did not assume the risk of being struck by another employee with an empty buggy coming out of car, where employer ordered work to be done in unsafe manner and deprived employee of only means known to him to protect himself from injury (Code 1930, section 513).
3. MASTER AND SERVANT.
In action for injuries sustained by employee engaged in loading box car with fertilizer when "Georgia Buggy" which employee was rolling into car was struck by empty buggy of another employee coming out of car, negligence of fellow servant in obeying direct order of employer not to wait for loaded buggy to come in before leaving car could not be charged to injured employee so as to relieve employer from liability.
APPEAL from circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
McClendon Edmonds, of Jackson, for appellant.
The court below erred in granting to the defendant the peremptory instruction. Appellant respectfully submits that under the evidence adduced by him, the court was manifestly in error in finding that the negligence of the fellow servant was the proximate cause of the injuries complained of.
The master is liable where he affirmatively orders the servant to omit the safe way and to perform the work in the unsafe manner, the order of the master so to do being given either at the particular time, or at previous times, and thence the improper and unsafe method has been pursued in virtue or by the force of the previous affirmative orders, and if the master expressly and affirmatively orders the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant and, to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders.
Brown v. Coley, 168 Miss. 785.
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.
McLemore McArthur v. Rogers, 152 Miss. 884.
In this case, we respectfully say that the appellant could not, by the use of due care, protect himself, and, at the same time, do his work in the manner in which he was ordered to do it, and that the defendant company, therefore, owed him the duty to warn him of the approaching danger, which would have certainly been simple enough of performing. However, if the company did not feel that it was practical to maintain an employee at the point of danger to warn appellant and his fellow workmen of such danger, then under the above case, the alternative remained that it must so order and control the method of work as to obviate the danger.
Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Gow Co., Inc., v. Hunter, 168 So. 264.
There is not a word of testimony in the record which charges or asserts that the appellant's fellow workman, whose buggy collided with the appellant's buggy was guilty of any negligence whatever, but on the other hand, all the evidence shows that the accident out of which grew the injuries complained of was caused by the general method of working which prevailed; that is, by the fact that the workmen were required at all times to go at a dangerous and reckless rate of speed.
Goodyear Yellow Pine Co. v. Mitchell, 140 So. 792; Gulf Refining Co. v. Ferrell, 147 So. 476.
Barnett, Jones Barnett, of Jackson, for appellant.
It was negligence for the master not to provide reasonably safe rules and methods for this work.
Coast Ship Co. v. Yeager, 81 So. 797; Gulf Refining Co. v. Ferrell, 147 So. 476; Y. M.V.R.R. Co. v. Smith, 117 So. 339; McLemore McArthur v. Rogers, 152 So. 883; Hammontree v. Cobb Const. Co., 152 So. 279; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Albert v. Doullut Ewin, 178 So. 312.
Threat of firing servant amounts to coercion. The appellant did not voluntarily adopt a dangerous method of performing his work, but the dangerous method was forced on him by the appellee with specific orders to hurry or "hit the clock" (meaning thereby he would be fired).
The Supreme Court has held in several cases that where the master orders the servant to do work with a threat of firing him if he refuses which the servant in his best judgment thinks he cannot perform, the master is guilty of negligence if the servant is injured in the performance of the work because it was too great for him.
Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792; Everett Hardware Co. v. Shaw, 172 So. 337; Jones v. D.L. Taylor Co., 102 S.E. 397, 179 N.C. 293; Brown v. Coley, 152 So. 1.
A hurry order may be negligence. Depending upon the circumstances of each case, an order from the master to the servant to hurry in the performance of his labor may or may not be negligence. In each of the cases where the question of whether the master was negligent in ordering the servant to hurry in the performance of his work, the courts have said that such order must subject the servant to an extraordinary hazard or must excite the servant.
English v. Roberts, Johnson Rand Shoe Co., 145 Mo. App. 439, 120 S.W. 437; Sambos v. Cleveland, C.C. St. L.R. Co., 134 Mo. App. 460, 114 S.W. 567; Saller v. Friedman Bros. Shoe Co., 130 Mo. App. 712, 109 S.W. 794; Walters v. Chicago Great Western R. Co., 154 N.W. 554.
Green, Green Jackson, of Jackson, for appellee.
This case produces the unusual situation of a plaintiff contending that the master is liable if he urges the servant or employee to hurry and make haste with his work if any injury results during the course of the plaintiff engaging in such haste, although the order is a general one without specific application, requesting and urging all of the employees to hurry and complete the work with as much haste as possible.
In passing upon the motion for a new trial the learned Circuit Judge pointed out that the orders of Mr. Calhoun to the workmen to hurry up with their work must be considered by the court, and should have been considered by the plaintiff in the light of reason and common sense, and he further concluded that the order to hurry up or hit the clock was subject to all of the exceptions demanded by common sense, and because "otherwise they would have required that employees brook no obstacle, human or otherwise, and that no danger, actual or potential, great or small, should stay their impetuous haste."
In the case of Brown v. Coley, 168 Miss. 778, 152 So. 61, Mr. Justice Griffith, in speaking for the court on reversing and entering a judgment for the defendant, clearly stated the rules applicable on the issues presented on this appeal, as follows: "The main contention of appellee, as shown by his declaration and by the only instruction requested by him on the issue of liability, is that the master had failed to furnish him with a reasonably safe place in which, and with reasonably safe appliances with which, to work. The proof is insufficient, in fact there is no proof, to bring this case within the safe place to work doctrine. In Seifferman v. Leach, 161 Miss. 853, 858, 138 So. 563, 564, it was said: `The ground of liability in respect to unsafe places to work is not danger, but negligence. The rule is one of reason. There are many places in and around machinery which are dangerous and cannot be made otherwise. Those who work there, work in unsafe places, but this does not make the master liable as for furnishing an unsafe place in which to work.' If the rule were otherwise, employees working at or near exposed saws in a sawmill would be entitled to recover for that reason alone, because when so working they would be in places of danger. Such is not the rule, as see, for instance, Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98. And upon similar principle, the case cannot be sustained on the alleged ground that the master failed to use reasonable care to furnish the servant with reasonably safe tools and appliances."
Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279.
Our friends in the instant case are defeated upon their proposition that the law would require a watchman or a traffic policeman to direct the movement of "Georgia Buggies" at the entrance to the box car door. There was nothing unsafe if the servants exercised ordinary and reasonable care for their own safety. The unfortunate accident and injury received by the plaintiff here came about by reason of the failure of his fellow-servant to observe reasonable care or because the plaintiff himself, solely and only, failed to exercise that ordinary and reasonable care required for his own safety.
Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.
In Boyer v. Eastern Ry. Co., 87 Minn. 367, 92 N.W. 326, it is held that the ordinary labor of unloading logs from a freight car is not attended with extra hazards nor involved in such complicated or obscure conditions as to require the master engaged therein to formulate rules for the conduct of his servants in the performance of their labor.
Olsen v. Northern Pacific Lbr. Co., 100 Fed. 384, 40 C.C.A. 427; Eastman Gardner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556.
Argued orally by Henry Edmonds and Ross R. Barnett, for appellant, and by Forrest B. Jackson, for appellee.
This was a suit for personal injuries sustained by the appellant while engaged in his duties as servant of the appellee. At the close of appellant's evidence, the court below sustained a motion to exclude the evidence and peremptorily instructed the jury to find a verdict for the appellee.
John Jefferson, a negro about forty years of age, had been employed by the Virginia-Carolina Chemical Company for about a week before he received the injuries complained of. He, with other employees, were engaged in loading an average box car with fertilizer. The operation of loading in itself was simple and not complex. The car was east of the platform from which the fertilizer was delivered into the car. The fertilizer was being transported in what is called a "Georgia Buggy" which is very similar to a wheelbarrow, except that the buggy has two metal wheels on the side and is deeper and larger than the ordinary wheelbarrow, with handles thereto. The load would be seven or eight hundred pounds, to be rolled by an employee from the machine to the platform, which was on a level with the machine, thence north on the platform where a steel apron four or five feet wide reached from the entrance to the platform. Neither the metal apron nor the door of the car would permit two of these buggies going in or out at the same time abreast. At the particular time, the fertilizer was being loaded in the north end of the car, which was shown to be very dark, and the only light was at the door. Jefferson had rolled his loaded buggy from the mixing machine to the platform, proceeding east, thence along the side of the car north, and as the front of his buggy was pushed at right angles into the car, an employee of the appellee ran his buggy into the left side of the buggy being pushed by Jefferson. That caused the handle of his buggy to be thrown violently against the facing of the car door and thereby he received injuries, the extent of which is unnecessary to be recounted.
The account of the injury is thus stated by him: "Well, I was going into the box car with the Georgia Buggy loaded, in a half trot, you know, and I was gwine in and another fellow was coming out, and as I started in his buggy struck the corner of mine and knocked my buggy up in the door facing, and my hand got caught and hung in the door facing;" that he did not know that the other fellow was in the box car at the time; he could not see in there; there was no warning of any kind to him; and that he and the other servant were going fast. That Mr. Calhoun, the man who hired and who fired the men and who was directing their work had told them to go fast and had given orders to the men going in and coming out that if they could not go fast to "hit the clock," by which it was meant that they were discharged. He further said that frequently, and just prior to this accident, the men in his crew were ordered to go in a half trot, if they couldn't move fast to quit.
Wilbert, an employee, substantiated the statement of the appellant as to the injury, and as to how it occurred; also as to the general orders to hurry up given to the men.
West also substantiated the appellant's statement as to the circumstances of the injury. He further testified that prior to these hurry up orders by Calhoun that it had been the custom of the men theretofore to give the right of way to the employee going into a box car with a loaded buggy. In other words, those who were on the inside remained therein and let the man with the load get in before they undertook to come out. They did not work "that way long," and "the boss (Calhoun) told us to hurry up and keep going." They were told not to stop that way, and when they did stop and wait for another to come out, he (Calhoun) "told them if they didn't quit stopping and get going, to hit the clock." These orders were given to the boys coming out. Calhoun had given this order to the witness about an hour and a half before the injury to Jefferson occurred.
On the facts, there is no question about Calhoun being the officer or agent of the company authorized to direct and control the servants in this operation, and there is no question but that the appellee is liable if it was negligent.
It is the argument of the appellee that the peremptory instruction was properly given because the work in which the appellant was engaged was simple, not complex, and that the servant was under the duty to exercise reasonable care for himself and not to expose himself to needless risks; and that the pushing of these loaded buggies into the car and the empties out of it was a simple operation, and whatever risk or hazard pertained thereto was assumed by the servant, that he did not use proper care for himself, therefore he cannot recover; that the operation was so simple as not to require rules or a warning under the circumstances, and that if there was any negligence it was that of the fellow servant who ran the buggy operated by him into that operated by appellant.
It is the contention of the appellant that the servants had adopted a simple effective way for their own safety in loading the car, by giving to the employee pushing the loaded buggy into the box car the right of way over the narrow metal passage, and those on the inside desiring to come out to wait until those having the right of way had entered the car with their load; that the master gave orders to the servant going into the car with loads and those coming out with unloaded buggies not to stop and wait, that if they did, they would be discharged. In other words, they were coerced into the abandonment of a safe method of loading the cars and forced to adopt an unsafe way by the direct orders of the master, without any warning or rule with respect thereto. The facts disclosed without controversy that one going into the box car could not see to the right or the left of the opening or door, five or six feet in width. It is likewise true that one coming out could not see until he reached a point beyond the line of light created by the open door. Negligence arises because of the master's having deprived the employees of their own adopted custom of a safe way to do the work by ordering them to proceed without stopping to await the coming in of the loaded buggy; and the direct orders of the master, as though he were standing in person, supervising each operation created not only a place of danger, but a place he could reasonably foresee that some injury might result under the strict orders given by him. In other words, it is almost certain that any sensible man could see that a collision between the buggies going in and out would likely ensue. The order of the master here for haste on the part of the servants is not controlling. It is that order, plus the direct order of the master for those inside the car not to wait and give the right of way to those coming in with a loaded buggy, requiring its obedience or dismissal, without substituting some reasonable method by which an employee on the outside would be warned that another employee was coming from the inside.
In the case of Brown v. Coley, 168 Miss. 778, 779, 152 So. 61, 63, we said the master is liable where he "expressly and affirmatively order the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant and, to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders."
In the case of McLemore v. Rogers, 169 Miss. 650, 152 So. 883, 884, this Court held 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."
We think that under the principles above quoted that the appellant had made a case which entitled him to go to the jury on the question of negligence.
That being true under our statutes, Section 513, Code of 1930, the appellant did not assume the risk, nor is the negligence of the fellow servant in obeying the direct order of the master to be charged to the servant so as to relieve the master who is negligent in the first instance. The negligence here charged to the master is that it ordered the particular work to be done in an unsafe and negligent manner and deprived the servant of the only means known to him to protect himself from injury.
We do not think the rule we have applied here conflicts with Tatum v. Crabtree, 130 Miss. 462, 94 So. 449, Hammontree v. Cobb Construction Company, 168 Miss. 844, 152 So. 279, and Vehicle Woodstock Company v. Bowles, 158 Miss. 346, 128 So. 98, 99. The negligence of the master here is that it ordered its servants to discontinue a safe simple way of taking care of themselves, and then provided no substitute for that safe way. The manner in which the master ordered this work done under the circumstances attendant thereon renders it liable for the natural and probable consequences of its direct orders carried out by the servant.
Reversed and remanded.