Opinion
No. 33892.
November 27, 1939.
1. MASTER AND SERVANT.
The rule that a master is not liable for servant's injuries where master follows customary method generally employed by prudent men engaged in same business does not apply where unsafeness in method is so evident that impartial persons could not disagree upon issue.
2. MASTER AND SERVANT.
An employer could not escape liability for injuries to employee, occurring when buggy which employee was pushing into box car was struck by buggy of fellow employee coming out of box car, on ground that it was employing usual method and that danger could have been avoided if employee leaving box car had waited until the other employee had entered, where foreman in charge of work had insisted that employees keep moving.
3. APPEAL AND ERROR.
The reviewing court was not justified in disturbing jury's finding, based upon conflicting testimony, that employee did not receive any part of alleged consideration for release set up as defense to personal injury claim.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
Green, Green Jackson, of Jackson, for appellant.
The requested peremptory instruction for the defendant should have been given the defendant.
The proof fails to show that there had been any change in the rules, orders and methods of work knowingly made by appellant which in any manner contributed to the injuries received by plaintiff, appellee.
Eagle Cotton Oil Company v. Sollie (Miss.), 187 So. 506, 507; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65.
The proof fails to show that the defendant had any notice that its employees, including plaintiff, had, prior to the accident adopted any safer method of performing the work than was required by the defendant.
Jefferson v. Virginia-Carolina Chemical Company (Miss.) 185 So. 230; Hammontree v. Cobb Construction Company, 168 Miss. 844, 152 So. 279; Vehicle Motor Company v. Bowles, 158 Miss. 346, 128 So. 98; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.
The method used by the defendant, including the rules and orders given, was the same as that used in other fertilizer factories similarly situated for similar work, and no negligence resulted from such method as shown by the record in this case to have been adopted by the employer.
Eagle Cotton Oil Co. v. Sollie (Miss.), 187 So. 506, 507.
The alleged injuries resulted solely if at all on plaintiff's testimony from the negligence of a fellow servant.
Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Eastman-Gardiner Hardwood Company v. Chatham, 168 Miss. 471, 151 So. 556; Newell Contracting Company v. Flynt, 172 Miss. 719, 161 So. 298, 300.
There was full release, accord and satisfaction.
This case as to the binding effect of the release is controlled perfectly by Whittington v. Cottam, 158 Miss. 827, 130 So. 745, 76 A.L.R. 332, note 344, approved in Thomas v. Rounds, 137 So. 894, 161 Miss. 712.
Foster v. Meridian, 116 So. 820, 150 Miss. 715; Whitney v. Cook, 53 Miss. 551, at page 559; Railway Company v. Fulton, 71 Miss. 388.
We submit that the release here pleaded was for a valuable consideration, was knowingly executed and was obtained without fraud or coercion, and that it represents, under the above authorities, a complete accord and satisfaction for which there should be no recovery under any other view of this case.
Willoughby v. Pope, 101 Miss. 808, 58 So. 705; Rowe v. Fair, 128 So. 90, 157 Miss. 326; Railway Company v. Turnbull, 71 Miss. 1029, 1039; Smith v. St. L. S.F.R. Co., 112 Miss. 878, 73 So. 803; Gunter v. Henderson-Molphus Co. (Miss.), 113 So. 720, 724; McCain v. Cochran (Miss.), 120 So. 823.
The motion for a new trial should have been granted.
The evidence was insufficient to support the verdict on liability, except under the "scintilla of evidence rule", which does not prevail here.
Gulf M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 504; Brown v. Coley, 168 Miss. 778, 152 So. 61; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Lumber Co. v. Miles, 135 Miss. 146, 99 So. 759; International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413; Cybur Lumber Co. v. Elkhart, 118 Miss. 401, 79 So. 235; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Hines Lumber Company v. Dickinson, 155 Miss. 764, 125 So. 93; Goodyear Yellow Pine Lumber Company et al. v. Clark, 163 Miss. 661, 142 So. 433; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Morgan Hill Paving Company v. Hollis, 160 Miss. 79, 133 So. 229; Hinton Bros. Lumber Company v. Polk, 117 Miss. 300, 78 So. 179; Y. M.V.R.R. Company v. Lamensdorf, 180 Miss. 426, 177 So. 50; Teche Lines, Inc. v. Bounds, 179 So. 747, 182 Miss. 638; Mutual Benefit Health Accident Association v. Johnson (Miss.), 186 So. 297; Kramer Service, Inc. v. Wilkins (Miss.), 186 So. 625; Thomas v. Williamson (Miss.), 187 So. 220; Hamilton Bros. v. Narciese, 158 So. 467, 172 Miss. 24.
The verdict and judgment are contrary to the overwhelming weight of the credible evidence.
M. O.R.R. Company v. Johnson, 165 Miss. 397, 141 So. 581; G. S.I.R.R. Company v. Blaylock (Miss.), 166 So. 372.
The instructions fail to correctly state the applicable principles of law.
Whittington v. Cottam, 158 Miss. 847, 130 So. 745; Jefferson v. Virginia-Carolina Chemical Corporation, 185 So. 230; Eagle Cotton Oil Company v. Sollie, 187 So. 506, 508. McClendon Edmonds and Barnett, Jones Barnett, and John E. Stone, all of Jackson, for appellee.
The amended declaration in this cause stated a cause of action under the unsafe place to work doctrine and the proof introduced in evidence amply sustains the allegations of the declaration. The facts as stated in evidence in behalf of the plaintiff on the trial of this cause are substantially the same as the facts brought out in the first trial of this cause and the defendant's contention that the peremptory instruction requested by it should have been granted is answered negatively by the opinion rendered by Justice McGowan in Jefferson v. Virginia-Carolina Chemical Company, 185 So. 230.
The requested peremptory instruction was properly refused. We respectfully submit that under the evidence herein it affirmatively appears that the plaintiff and his fellow workmen were doing their work in the only way known to them to protect themselves from injury; that they were ordered to do such work in an unsafe and a negligent manner, and were deprived of employing such a safe method on pain of discharge for refusal so to do.
It is evident that the defendant's foreman knew and realized that plaintiff and his fellow workers were following a simple safe method of work and that although he may not have had actual notice that they had agreed on and promulgated a rule in certain words, still he was charged with notice that the workmen, including the plaintiff, were doing their work in the only safe way known to them.
Jefferson v. Virginia-Carolina Chemical Company, 185 So. 230.
The simple question involved in this case is whether or not negligence arose on the part of the defendant because of the fact that it stopped the only safe method known to the employees to use for their own protection under the existing circumstances as shown by the evidence without substituting some reasonable method by which an employee on the outside would be warned that another employee was coming from the inside.
Coast Ship Company v. Yeager, 120 Miss. 152, 81 So. 797.
The fellow servant in this case was acting directly under orders, and was forced to discontinue the use of the discretion which he had been exercising, and, to use the words of this court on the former appeal: "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."
Under the testimony in this record a clear-cut issue of fact was raised regarding the purported release which must necessarily have been determined by the jury.
The court properly overruled the motion for a new trial.
Plaintiff's evidence is clear and it is strongly corroborated by witnesses in his behalf. It is apparent that appellant's discussion of the scintilla of evidence rule is entirely out of place in the consideration of the case before the court. While there is considerable conflict in the testimony, the case made out by the plaintiff is both clear and convincing and was accepted by the jury as most worthy of belief.
It requires no citation of authorities to substantiate the fact that it is the province of the jury to determine the credibility of the witnesses and the weight of their testimony. On the motion for a new trial it was the duty of the court to determine whether or not the verdict was supported by a preponderance of credible evidence. Appellee's case is further strengthened by the fact that to the verdict of the jury is added the weight of the opinion of the court that the verdict was supported by a preponderance of credible evidence.
The instructions correctly state the principles of law applicable in this case.
Wilbe Lumber Company v. Calhoun, 163 Miss. 80, 140 So. 680; Albert v. Doullut and Ewin, Inc., 180 Miss. 626, 178 So. 312; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Brown v. Coley, 168 Miss. 778, 152 So. 61; Jefferson v. Virginia-Carolina Chemical Company (Miss.), 185 So. 230; McLemore v. Rogers, 169 Miss. 650, 152 So. 883, 884; Randolph Lumber Company v. Shaw, 174 Miss. 297, 164 So. 587; Eagle Cotton Oil Company v. Sollie, 187 So. 506.
The opinion in Jefferson v. Virginia-Carolina Chemical Company, 185 So. 230, is controlling on all points involved, with the exception of the questions of the validity of the release and whether or not the action of the court in giving and refusing instructions was proper. The question of the validity of the release was, under the evidence, for the jury to decide.
Argued orally by Henry Edmonds for appellee.
The case presented on this appeal is substantially the same in all material particulars, so far as the testimony on behalf of the appellee is concerned, as that disclosed in the opinion of the court on a former appeal, as reported in the case of Jefferson v. Virginia-Carolina Chemical Company, Miss., 185 So. 230, reference to which is here made for a statement of the facts relied on to establish liability, and wherein it was held that an employee engaged in pushing a "Georgia Buggy" and loading a box car with fertilizer did not assume the risk of being struck by another employee with an empty buggy coming out of the car, where employer ordered the work to be done in an unsafe manner and deprived employee of the only means known to him to protect himself from injury. On the first trial there was a directed verdict in favor of the employer defendant. Upon appeal, the judgment entered thereon was reversed and remanded. On the second trial the defense was interposed that if it were true that the employees had adopted a safe method of their own for doing the work the employer had no notice thereof, and that therefore no discontinuance of such method could have been ordered by the employer; that the system employed at the time of the accident and injury complained of was the usual and customary method or system generally employed by careful and prudent men engaged in the same business; that the danger incurred by the appellee in trying to enter the box car with a loaded buggy before the fellow servant on the inside had come out of the car with his empty buggy was a manifest and obvious danger; that no rule or regulation for the safety of the men was necessary; that there was only one course to pursue, which was apparent, and that was for the fellow servant to either wait until the appellee had gotten safely into the box car with his loaded buggy, or warn appellee of his purpose to come out before appellee tried to enter; that the only reasonable rule the employer could have promulgated was simply that, and nothing more, and that if the employer had promulgated such a rule the appellee and his fellow servant would only have been informed of what they already knew.
The trouble encountered, however, in trying to apply that principle of law, so declared in the case of Tatum v. Crabtree, 130 Miss. 462, 94 So. 449, and other cases cited, is that the foreman in charge of the work in the case at bar ordered the appellee and his fellow servants not to wait on one another in that manner, but to keep moving; to rush in and rush out of the car, or "hit the clock", meaning that otherwise they would be fired. Moreover, the rule invoked by the appellant employer to the effect that the master is not liable where he observes and follows the usual and customary method or system generally employed by careful and prudent men engaged in the same business has no application where "the unreasonable unsafeness in the method or system is so evident that impartial persons could not well be in disagreement upon the issue." This exception to the rule is recognized in Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 743; Eagle Cotton Oil Co. v. Sollie, Miss., 187 So. 506. On the former appeal of the case at bar the Court, after stating the facts upon which the plaintiff relied, said in regard to the defendant's duty, that [185 So. 232]: "It is almost certain that any sensible man could see that a collision between the buggies going in and out would likely ensue."
The appellee testified again on the second trial, after relating that for a day or two prior to the accident the employees had followed a method of their own whereby a fellow servant on the inside of the box car would wait before trying to come out with his empty buggy until the servant with the loaded buggy could enter (under his right of way privilege over the metal bridge from the platform into the box car), that: "Mr. Calhoun come out and caught us, and he stopped us; had us go in a hurry, a lot of time go in a trot and come in a trot"; and that: "He said if we didn't quit, he would fire us — to hit the clock". "Q. If you didn't quit what? A. Didn't quit stopping and waiting for one to come in."
It was then shown that one coming out from the north end of the box car with an empty buggy could not have seen the appellee in time to avoid injuring him, if each of the servants were required to rush in and to rush out of the box car in the manner testified. Therefore, the result of the alleged command of the foreman, according to the testimony of the appellee, was that when he started into the box car with a loaded buggy, "another fellow was coming out; and as I got halfway in the car his buggy struck the left side of my buggy, and just knocked my hand up against the door facing and the Georgia buggy body".
Without discussing in detail the errors assigned in regard to the giving and refusal of instructions, we deem it sufficient to say that in our opinion the instructions given, when considered as a whole, fully and correctly announce the applicable principles of law governing the question of liability under the facts of the case, and that they are in conformity with the principles announced in the former opinion in regard to the state of case made by the proof.
The appellant also pleads a release, which was executed by the appellee shortly after the accident complained of, as constituting a full accord and satisfaction. The purported release recited payment of $11.60, but we think that the jury was warranted in believing from the evidence that the appellee did not receive any part of the alleged consideration; that he did not understand that the payment of this amount to the attending physician, and which was owing either by him or by the appellant to the physician, was intended to be in accord and satisfaction of the damages sustained on account of his injury. Upon conflicting testimony this issue was resolved in favor of the appellee, and we are not justified in disturbing the finding of the jury in that regard. Nor can we say that the amount of the verdict was excessive to such an extent as to evince bias, passion or prejudice on the part of the jury.
Therefore, the verdict and judgment of the court must be affirmed.
Affirmed.