Opinion
No. 37479.
April 24, 1950.
1. Master and servant — defective machinery.
In an action by an employee for injuries sustained while attempting to shift gear while sprocket wheel was in motion, it was shown that it was dangerous and against the rules known to the employee to so attempt while the sprocket wheel was in motion, but the employee showed that for a period of several months the machinery had been allowed to remain in such condition that often the gear could not be shifted at all when the sprocket wheel was not in motion, the occasion in question being one, and the employer made no explanation as to why the machinery was allowed to remain in that condition: Held that the defendant was not entitled to a peremptory instruction, and that the question whether the employer's negligence was a contributing cause was for the jury.
2. Master and servant — evidence of repairs made to machinery alleged to be defective not admissible.
Evidence of repairs or betterments made to machinery or appliances following an injury in the use thereof is not admissible; hence evidence received over objection that on the day following the injury involved in plaintiff's action for damages, the defendant made a guard and placed it over the sprocket wheel heretofore mentioned should have been excluded.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Washington County, ARTHUR JORDAN, Judge.
B.B. Wilkes, for appellant.
I. The trial judge erred in refusing to grant a peremptory instruction for the defendant.
A. The defendant was guilty of no negligence whatever.
(1) Maintaining the machine with the sprocket and chain unguarded was not negligence per se since it was the same kind in general use by careful and prudent employers in similar businesses throughout the country. As stated in Hammontree v. Cobb Const. Co., 168 Miss. 844, 152 So. 279, the rule is: "The rule is established practically without dissent 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, unless as in Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797, the unreasonable unsafeness in the method or system is so evident that impartial persons could not well be in disagreement upon the issue." Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.
(2) The master is not required to furnish his servant the newest, best and safest places to work. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Mitchell v. Brooks, 165 Miss. 826, 146 So. 660; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.
B. The plaintiff was injured solely through his own negligence and lack of care.
(1) Where employer furnishes a safe method of performing a task and the employee chooses to perform it in an unsafe manner, he may not complain of the employer because of the results. Walley et al. v. Williams, 201 Miss. 84, 28 So.2d 579; Anderson v. McGrew, 154 Miss. 291, 122 So. 492; Brown v. Coley, 168 Miss. 778, 152 So. 61; Anderson-Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536.
II. The court erred in allowing evidence to be introduced, over defendant's objection, to the effect that guards were placed over the sprocket of the machine by the defendant after plaintiff's injury.
The general rule with reference to the admissibility of evidence of precautions after accidents is stated in 170 A.L.R. 9: "The general rule that evidence of a change in conditions or proof of repairs made after an injury is never admissible as proof of negligence of the defendant in not having made the repairs or taken precautions prior to the accident is recognized in most jurisdictions.
"In many instances the same result is reached by holding evidence of repairs made or precautions taken subsequent to an accident inadmissible as an admission of negligence."
Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Columbia P.S.R. Co. v. Hawthorne, 144 U.S. 202, 36 L.Ed. 405; McKelvey on Evidence, Fifth Edition, Page 273, Paragraph 145.
Farish Keady, for appellee.
We do not quarrel with the authorities cited by appellant but say that they are not in point factually so as to justify a peremptory instruction for appellant. Counsel argue that the case should have been taken from the jury because the evidence showed that this machine was a standard type used in similar businesses such as that in which appellant was engaged. Even so, in order for the rule contended for by appellant to apply, it would have to appear without dispute that the machine as maintained by it was similarly maintained elsewhere by reasonably prudent employers in the same line of business. Or, in other words, it would have to appear that all such machines had gears which worked roughly and unevenly, no matter how well maintained and that this equipment in question did not need maintenance simply because the gears worked roughly or with difficulty. It is not enough that machines be alike when manufactured, in order that appellant may be exculpated from fault by using equipment standard and uniformly used by similar employers, but also that the same was inspected and maintained with due care and all reasonable precautions taken to keep the equipment in good operating condition. Without further argument, we say that the evidence in this case raised a question for the jury to decide on whether the condition of the equipment, due to the gears working roughly and unevenly and continuing thus over a period of several months, and the failure of appellant to do anything about it, constituted negligence.
We concede, likewise, that appellant was not required to furnish the newest, best, and safest places and instrumentalities with which to work. Nor was the jury so instructed in reference to appellant's duty. However, it cannot be said as a matter of law by this Court, in view of the conflicts in the proof and the substantial evidence supporting the verdict of the jury, that appellant was not guilty of negligence in making the premises and equipment reasonably safe for an employee exercising ordinary care for his own safety.
Appellant next contends that the cause of the injury in this case was due solely to the negligence of appellee, that appellant had furnished him a safe means or method of shifting the gears, but that he persisted in shifting the gears in an unsafe or dangerous manner and can not complain because of the results. The fallacy of this argument is that the proof shows, from the testimony of the appellee and his witness, Tatum, that the gears could not be shifted if one waited until the sprocket ceased revolving and became still; that "you could push all day on the gears, and they would not move"; and it was for the very purpose of being able to shift the gears, when they would get in the rough and uneven condition, that the motor was started up, then cut off, and the shift made before the sprocket ceased turning. In other words, it was a method made necessary on account of the condition of the machine in order for the work to go forward. Necessarily, it follows that appellee can not be charged with the consequences of an accident because he adopted the only means that he knew to carry on the work when appellant had failed to use care to keep the equipment in a reasonably safe condition.
Whatever may be the rule in other jurisdictions, in this state it is competent for the jury to consider as a circumstance the master's remedying of a dangerous condition after the occurrence of an injury. Of course, such proof is not an admission of negligence but is to be considered only in determining whether or not the master was guilty of negligence in the first instance. Such was the holding of this Court in Sea Food Company v. Alves, 117 Miss. 1, 77 So. 857.
By way of commentary, we might add that the authorities generally recognize about as many exceptions to the general rule of inadmissibility of evidence of subsequent repairs as imaginable, thereby leaving a pattern of hopeless conflict in the decided cases. The annotation appearing in 170 A.L.R. 7 lists many of the varied exceptions to the general rule of inadmissibility, one of the exceptions being that evidence of subsequent repairs is admissible for the purpose of showing it was possible and practicable to have avoided the accident, although not admissible to show negligence.
The plaintiff, Frank H. Carter, recovered a judgment for damages on account of personal injury sustained by him as an employee of the defendant, Chicago Mill and Lumber Company, when his arm was drawn into a chain which was around a revolving sprocket wheel on which there were teethlike cogs. His hand slipped off a lever which he was using, about 8 or 10 inches from the sprocket, as a means of shifting the gear that operated the sprocket wheel and furnished the power for turning some paddles inside of a large pot used for mixing glue ingredients of a 200-pound capacity.
The negligence charged is: (1) that the employer failed to exercise reasonable care to furnish the employee with a reasonably safe place to work, and (2) that the gear which the employee was required to shift in the operation of the glue-mixing machine had become very difficult to shift and that he was sometimes unable to shift them at all unless he did so while the sprocket wheel was in motion; that this defective condition of the gear had continued for at least a few months prior to the injury.
While there was a warning in plain view of this employee at his place of work, which read: "Stop Motor Before Changing Speed", he claims that he had first tried to shift the gear on the occasion complained of while the motor was stopped, but could not get the gear to shift; that he then started the motor, then cut it off, and undertook to shift the gear while the sprocket wheel propelled by the motor was still in motion. He claimed that that was the way he had seen the other employees do in shifting the gear and that this was the only way that he knew to carry on his work, if the gear would not shift while the machinery was stopped.
It seems that the employer knew about this practice of the employees since the foreman testified that he had been trying to "catch them at it", for the reason that the practice was both dangerous to the men and injurious to the machinery. However, the defendant offered no proof that the difficulty in getting the gear to shift at times when the motor was stopped was due to the fault of the plaintiff, and although it was conceded that the gear was difficult to shift, there was no explanation as to why it was permitted to remain in that condition, the plaintiff having testified that such condition existed when he went to work in October before he was injured the latter part of December.
(Hn 1) Under the foregoing state of facts, a majority of the judges are of the opinion that the defendant was not entitled to the requested peremptory instruction in its behalf, but they are of the opinion that in view of the foregoing facts (Hn 2) it was error for the trial court to permit the plaintiff, over the objection of the defendant, to show that on the day following the accident, the defendant made a guard from pieces of tin and placed it over the revolving sprocket wheel so as to prevent any further accidents.
It was shown without dispute that the mixing machine was not equipped with a guard over the sprocket wheel when it came from the factory, and that no guard is used by any other prudent operator of such machines throughout the country.
In the case of Standard Oil Company v. Franks, 167 Miss. 282, 149 So. 798, 799, this Court announced a somewhat different view as to the admissibility of evidence in regard to repairs following an accident than that expressed in Sea Food Company v. Alves, 117 Miss. 1, 77 So. 857, it being stated in the Franks case that such evidence is inadmissible as an admission of negligence; that the rule in that behalf, upon which it is said that the authorities are very nearly unanimous, "is founded in public policy which requires that men should be encouraged to repair and improve, and to take precautions against recurrence of injury, and that they should not be deterred therefrom by the fear that, if they do so, their subsequent acts in that regard will be received in evidence and construed as an admission that they were guilty of prior wrong or negligence."
It is argued that the above-quoted view of the Court was mere dicta in the Franks case, but it will be found that in the case of Columbia P.S.R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 593, 36 L.Ed. 405, the Court said: "It is now settled, upon much consideration, by the decisions of the highest courts of most of the states in which the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant."
There are, of course, exceptions to the rule against the admissibility of such evidence, where as for example the defendant by his own or its own evidence offers a photograph to show the condition of the machinery or place of work, taken after the accident and after the condition complained of has been remedied or repaired, the plaintiff is permitted to show that the repairs were in fact made after the accident, and also were the only reason given by the defendant for not placing a guard or other protection about the machinery is that to do so would interfere with its safe and successful operation and neither of which exceptions are in the case at bar.
We are of the opinion that the views expressed by the Court in the Franks case and in the federal decision above mentioned is sustained by the weight of authority and should be followed by this Court.
The exclusion of the evidence in question would render unnecessary the giving of instruction #7, which was requested by the defendant and refused.
As to the other instructions, the refusal of which is assigned as error, they are predicated upon the undisputed evidence in the case, including the admission of the plaintiff that if he had waited until the sprocket wheel stopped revolving he would not have sustained the injury complained of. However, they ignore the contention of the plaintiff that oftentimes he could not shift the gear at all, when the sprocket wheel was not revolving, and that this was true on the occasion complained of due to the long-neglected and defective condition of the gear, and that this condition brought about the necessity of trying to shift the gear while the wheel was in motion, or to state it differently that the defendant's failure to furnish reasonably safe machinery may have been a contributing cause to the accident.
For the reasons hereinbefore stated, it is the opinion of the Court that the cause should be reversed and remanded for a new trial.
Reversed and remanded.