Opinion
No. 39981.
March 26, 1956.
1. Master and servant — extension ladder — not within simple tool doctrine.
Where ladder was in two sections and record in wrongful death action did not disclose length of ladder, nor height from which servant fell, such extension ladder did not come within simple tool doctrine.
2. Negligence — contributory negligence — defective ladder — questions of negligence for jury.
In action for death of servant employed as painter, where extension ladder furnished servant for painting broke and caused servant to fall and receive fatal injuries, questions of negligence and contributory negligence were for jury.
3. Master and servant — duty to furnish reasonably safe place to work — appliances.
Where master employed servant to paint exterior of building, it was duty of master to exercise reasonable care to furnish servant reasonably safe place to work, and reasonably safe appliances and instrumentalities.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Warren County; R.B. ANDERSON, Judge.
Prewitt Bullard, Vicksburg, for appellants.
I. An extension ladder is not a simple tool. Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; J.J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571; Langston v. Fiske-Carter Constr. Co., 180 S.C. 113, 185 S.E. 62; McGowan v. American Mfg. Co. (Mo.), 270 S.W. 423; Manning v. Portland Steel Ship Building Co., 52 Oregon 101, 96 P. 545; Middleton v. Faulkner, 180 Miss. 137, 178 So. 583; Newbern v. Great Atlantic Pacific Tea Co., 68 F.2d 523, 91 A.L.R. 781; Nugent Sand Co. v. Howard, 227 Ky. 91, 11 S.W.2d 985; Pacific Tel. Tel. Co. v. Starr, 206 Fed. 157; Rodgerson v. Houtz, 174 N.C. 27, 93 S.E. 376; Southwestern Portland Cement Co. v. McBrayer (Tex.), 140 S.W. 388; Tucker v. Holly Hill Lumber Co., 200 S.C. 259, 20 S.E.2d 704; Twonbley v. Consolidated Electric Light Co., 98 Maine 353, 57 A. 85; Wausau Southern Lumber Co. v. Cooley, 130 Miss. 333, 94 So. 228; 40 L.R.A. (N.S.) 858; Vol. XX, American English Encyclopedia of Law (2d ed.), p. 82.
II. A ladder is a place or appliance, within the rule that an employer must furnish a reasonably safe place to work. Allison v. Stivers, 81 Kan. 713, 106 P. 996; Bloch v. Brown, 201 Miss. 653, 29 So.2d 665; Casey v. Hansen (Iowa), 26 N.W.2d 50; City of Altus v. Martin (Okla.), 268 P. 228; Colonna Shipyard, Inc. v. Bland (Va.), 143 S.E. 729; East Tennessee Telephone Co. v. Jeffries, 153 Ky. 133, 154 S.W. 1112; Hamblen v. Owens, 127 Fla. 91, 172 So. 694; Higley v. Winnipeg, 20 Manitoba Law Rep. 22; Jarvis v. Byrnes (Vt.), 61 A.2d 543; Langston v. Fiske-Carter Constr. Co., supra; Laurel Mills v. Ward, 134 Miss. 447, 99 So. 11; Palmer v. Julian (Kan.), 170 P.2d 813; Parker v. W.C. Wood Lbr. Co., 98 Miss. 750, 54 So. 252; Puza v. C. Hennecke Co., 158 Wis. 482, 149 N.W. 223; Southwestern Portland Cement Co. v. McBrayer, supra.
III. There was sufficient evidence to go to the jury on the question of notice to the defendant. Laurel Mills v. Ward, supra; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Mobile O. RR. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Thomas v. Mississippi Products Co., Inc., 208 Miss. 506, 44 So.2d 556; Secs. 1455-1456, Code 1942.
W.J. Vollor, Vicksburg, for appellee.
I. Master's duty in the case and the burden resting upon plaintiffs. Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506.
II. Decedent voluntarily used ladder with full knowledge of any defective conditions then existing. Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689; Eastman, Gardiner Co. v. Caldwell, 177 Miss. 861, 172 So. 126.
III. Employee's knowledge shown superior to that of master. Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117.
IV. The record in this case still fails to show that the ladder in this case was other than a simple tool being used by a painter of many years' experience, and one who necessarily was thoroughly familiar with ladders and their uses. Middleton v. Faulkner, 180 Miss. 737, 178 So. 583; 35 Am. Jur., Sec. 177 p. 606.
V. The ladder here involved cannot be considered other than a tool temporarily in use on a painting project nearly completed. It was certainly not proven to be a part of the place where the work was being done.
VI. The doctrine of res ipsa loquitur is not applicable. Hope v. Natchez C. M. RR. Co., 98 Miss. 822, 54 So. 369.
APPELLANTS IN REPLY.
I. The master's duty in the case and the burden resting upon the plaintiffs. Alabama V. Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703; Bloch v. Brown, 201 Miss. 653, 29 So.2d 665; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Hope v. Natchez, C. M. RR. Co., 98 Miss. 822, 54 So. 369; Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223; New Orleans G.N. RR. Co. v. Walden, 160 Miss. 102, 133 So. 241; 39 C.J., Sec. 412 p. 285.
II. The doctrine of assumption of risk cannot be applied to defeat this appellant. Eastman, Gardiner Co. v. Caldwell, 177 Miss. 861, 172 So. 126; Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264; Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689; J.J. Newman Lbr. Co. v. Cameron, 179 Miss. 217, 174 So. 571; Sec. 1456, Code 1942.
III. An extension ladder is not a simple tool. Laurel Mills v. Ward, 134 Miss. 447, 99 So. 11; Middleton v. Faulkner, 180 Miss. 137, 178 So. 583; Parker v. W.C. Wood Lbr. Co., 98 Miss. 750, 54 So. 252.
The surviving widow and children of Andrew Jack Letney brought suit against G.W. Miller to recover damages for his alleged wrongful death. Prior to the trial, G.W. Miller died, and the case was revived against Earle G. Miller, executrix of his estate.
The court, at the close of plaintiff's evidence, sustained a motion of the defendant to exclude the evidence of the plaintiff and to direct a verdict for the defendant. From this judgment plaintiffs appeal.
The deceased, Andrew Jack Letney, was employed by G.W. Miller to paint the exterior of a building owned by Miller. Miller furnished the ladder, paint, brushes, and a man to hold the ladder while the deceased was painting. The evidence shows that the ladder was in two sections, and is commonly called an extension ladder. According to the testimony of Willie London, who was holding the ladder, when the deceased stepped from the new part of the extension ladder to the old part, the ladder broke and caused the deceased to fall, and from which he received injuries which resulted in his death two days later. The record does not disclose the length of the extension ladder or the height at which deceased was painting at the time he fell. The court, in ruling on the motion for a directed verdict, stated: "The court being of the opinion that the tool here used, in question, was a simple tool. That the defendant had no notice of any defect in same. In addition to that, that the decedent was notified by his wife: not to go back up on that old rotten ladder. And I think for those reasons his action cannot be successfully maintained."
In the case of Parker v. Wood Lumber Company, 98 Miss. 750, 54 So. 254, this Court held that a canthook did not come within the simple tool doctrine, and in Laurel Mills v. Ward, 134 Miss. 447, 99 So. 11, it was held that a "homemade" stepladder about eight feet in height furnished an employee was not a simple tool, but a part of the place furnished for the employee to perform his work. In Gulf, Mobile O. RR. Co. v. Graham, 151 Miss. 351, 117 So 881, the Court held that a "trackjack", used in railroad construction work, was not a simple tool. In Jones v. Southern United Ice Company, 167 Miss. 886, 150 So. 652, the Court held defective ice tongs simple tool. In Middleton v. Faulkner, et al, 180 Miss. 737, 178 So. 583, the Court gives a history of simple tool, citing the Mississippi decisions.
(Hn 1) We are of the opinion that the extension ladder, under the facts and circumstances of this case, does not come within the simple tool doctrine. (Hn 2) Accepting as true the plaintiff's evidence, together with all reasonable inferences deduced therefrom, it was error to grant the peremptory instruction. The questions of negligence and contributory negligence were questions for the jury. (Hn 3) It follows that since the simple tool doctrine has no application, it was the duty of the master to exercise reasonable care to furnish the servant a reasonably safe place to work and reasonably safe appliances and instrumentalities.
Reversed and remanded.
McGehee, C.J., and Lee, Holmes and Ethridge, JJ., concur.