Opinion
No. 36774.
May 24, 1948. Suggestion of Error Overruled June 14, 1948.
1. MASTER AND SERVANT.
Evidence was insufficient to establish that employer engaged in drilling oil well was guilty of negligence proximately causing loss of eye of one employed by it as a driller, so as to render it liable to employee in damages, even if chain forming operative part of machinery was old and should have been replaced with a new one, where employee's injury was caused by a sliver of steel flying from pin in link of chain and into employee's eye while employee was attempting to repair bent pin by use of small hammer.
2. EVIDENCE.
Courts act on reasonable probabilities in civil cases, and to prove possibility only or leave issue to surmise or conjecture is not sufficient to sustain verdict in trial under common law.
3. EVIDENCE.
Generally, proof that certain event transpired as result of stated condition proves only possibility and does not establish probability sufficient to sustain verdict.
APPEAL from the Chancery Court of Adams County.
Brandon, Brandon, Hornsby Handy, and L.A. Whittington, all of Natchez, for appellant.
The complainant sustained his injury while engaged in the use of a simple tool and simple appliances, in the use of which this defendant was guilty of no actionable negligence.
Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Howd v. Mississippi Cent. R. Co., 50 Miss. 178; Kent v. Yazoo M.V.R. Co., 77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 534; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Gulfport Cresoting Co. v. White, 171 Miss. 127, 157 So. 86, 87; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 495, 151 So. 720; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157; Jabron v. State, 172 Miss. 135, 159 So. 406; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202, 204; Brown v. Coley, 168 Miss. 778, 152 So. 61; Wausau Southern Lumber Co. v. Cooley, 130 Miss. 333, 94 So. 228; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Middleton v. Faulkner, 180 Miss. 737, 178 So. 583; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Borde v. New Orleans G.N.R. Co. (La.), 140 So. 810-812; Southern R. Co. v. Hensley, 138 Tenn. 408, 198 S.W. 252-253; Middleton v. National Box Co., 38 F.2d 89, 90.
The court below erred in permitting the complainant, over the objections of the defendant, to testify that the chain in question and the metal parts thereof, including the pin upon which he was hammering, had become crystallized.
F.W. Woolworth Co. v. Haynie, 176 Miss. 703, 170 So. 150; Columbus G.R. Co. v. Coleman, supra; Merchants' Wharf-Boat Ass'n v. Wood (Miss.), 3 So. 248.
The record in the case at bar is clear to the effect that the defendant had supplied goggles for the use of its employees and had instructed its employees as to the usual safety methods to be pursued in conducting and doing the work in and about the drilling rig; and, furthermore, that posters had been put up on this particular drilling rig warning and advising employees that they should use goggles to protect their eyes in the course and conduct of their work.
Barron Motor Co. v. Bass, supra.
Most certainly the complainant was himself guilty of contributory negligence which proximately contributed to his injury.
The appellee assumed the ordinary risk of injury in performing the work of making repairs in which he was engaged at the time he was injured.
Barron Motor Co. v. Bass, supra; Seifferman v. Leach, supra; Hooks v. New Orleans N.E.R. Co., 111 Miss. 743, 72 So. 147; Jones v. Southern United Ice Co., supra; Parker v. W.C. Wood Lumber Co., 98 Miss. 750, 54 So. 252, 40 L.R.A. (N.S.) 832; Tobler v. Pioneer Mining Mfg. Co. (Ala.), 52 So. 86; Walton v. Tennessee Coal, Iron R. Co. (Ala.), 52 So. 328; Florence C.C.R. Co. v. Whipps, 70 C.C.A. 443, 138 F. 13; Kletschka v. Minneapolis St. L.R. Co., 80 Minn. 238, 83 N.W. 133; J.H. Reed v. Moore et al., 153 F. 358, 25 L.R.A. (N.S.) 331.
This appellant was not the insurer of the safety of the appellee, and the ordinary risk of employment (not the positive negligence of the employer proximately causing injury) were assumed by the appellee in performing the work in which he was engaged at the time of injury.
Masonite Corporation v. Graham, 199 Miss. 833, 25 So.2d 322.
There was no obligation on the part of this appellant to warn the appellee of the danger of injury in the work of repair in which he was engaged.
Masonite Corporation v. Stevens, 201 Miss. 876, 30 So.2d 77.
Engle, Laub, Adams Forman, of Natchez, and Casimer D. Moss, of Winnfield, La., for appellee.
The pin from which the sliver of metal was broken which destroyed the sight of appellee was a component part of an appliance which was not a simple tool, but even if the pin in question were held to be a simple tool, the "simple tool doctrine" would not apply in the instant case.
Middleton v. Faulkner et al., 180 Miss. 737, 178 So. 583; Parker v. W.C. Wood Lumber Co., 98 Miss. 750, 54 So. 252; Laurel Mills v. Ward, 134 Miss. 447, 99 So. 11; Gulf, M. N.R. Co. v. Graham, 153 Miss. 72, 117 So. 881; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Wausau Southern Lumber Co. v. Cooley, 130 Miss. 333, 94 So. 228; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Mississippi Law Journal, April 1939, Vol. XI, No. 4, p. 340.
The appellee was guilty of no contributory negligence in this case.
Argued orally by Gerard Brandon, for appellant, and by R.B. Forman, for appellee.
Attachment in chancery brought appellant, a non-resident corporation, into the Chancery Court of Adams County to defend the suit of appellee, seeking damages for the loss of an eye, while in the employ of appellant. Appellee demanded damages of $15,000.00 and decree was awarded him for the full amount, whereupon the defendant appealed.
At the close of all the testimony appellant moved the court to dismiss the bill of complaint, which motion was overruled, and this action of the court is assigned as error, along with several other assignments, including the charge that it was error to enter decree against it. The issue is whether or not appellant was guilty of justiciable negligence proximately causing the injury to its employee, the appellee, compensable in damages therefor.
The business of appellant at the time was drilling an oil well in the Cranfield District of Adams County, and the appellee was employed by it as driller on a drilling rig. As driller, he was in charge of a crew of four men. He was responsible for the actual drilling operations, and it was also his job to make repairs to machinery and equipment, if it broke down. He was of 20 years experience in oil operations and approximately two and a half years as a driller.
A component part of the machinery of the drilling rig was a chain, consisting of links attached together with pins, and forming an operative part of the machinery. This chain transmitted power from the boiler of the generating plant to the rotary shaft, and "from the rotary shaft by mechanical process to the drill stem, which drill stem was rotated or turned by the power which had been transmitted by means of the chain operation, and which drill stem in turn rotated the bit which made the hole some thousands of feet into the ground." We use here appellee's description, in his argument in his brief, based on the evidence.
When this chain became broken, the machinery stopped, and it was appellee's duty to repair it. This was done, as he testified, by detaching the chain from the machinery, which was the regularly recognized proper method. Upon the stoppage of the machinery on this occasion appellee did detach the chain, placed the affected parts in a vise, and, using a small ball peen hammer, beat upon the connecting pin causing the trouble, so as to replace it with another. Two pins, one crystallized, and the other bent, had caused the trouble. The pins were held in place at the top of the links by cotter pins through a hole for the purpose, they were bradded at the bottom, and were approximately three inches long. To get them out, the cotter pin was removed, and appellee was beating, in the usual and customary way, upon the bent pin with the small hammer, in order to force it out so it might be replaced, when a probably glancing blow by him caused a small sliver of steel to penetrate the cornea and lens of his eye, resulting in the permanent blindness thereof, when the sliver was removed. This is a summary of his testimony as to how the accident occurred and the injury was caused.
There was evidence that the chain was old, and had broken before, and been repaired by appellee; that he had asked for a new chain, which was ordered; and on receipt was installed after the accident. There was also evidence that new such chains also were subject to breakage in operation. It is to be noted, however, that neither the operation of the machinery nor the breakage of the chain injured appellee. His injury occurred while the machinery was stopped, and the chain detached, and placed in a vise. Appellee did not receive his hurt until he picked up the simple tool, a ball peen hammer, and began the repair, as it was his duty to do, of the chain. He was not working with the chain as a tool at the time, but on it as the object of repairs. The only tool he was using was the ball peen hammer, weighing less than half a pound.
The original bill contains this charge: "The use of the old chain was dangerous to complainant and to the other man working on the job in question, and although the said tool pusher promised to furnish the said complainant with a new chain, yet the said defendant negligently permitted the said old chain to remain in use and negligently neglected to furnish said complainant and the other man on the job a new and efficient chain suitable and proper for the work, and as a consequence of the use of the said old chain and the breakage of the same and the necessity of the repair thereof . . . the said complainant then and there became grievously hurt; . . . and had said defendant had the proper regard for the welfare and safety of the said complainant, by replacing said chain promptly as it should have done when complaint was made to it of the condition of said chain by the said complainant, that the injury in question would not have happened or occurred to the said complainant, and in all probability there would have been no necessity of making any repairs whatsoever on the said new chain; that on the occasion herein complained of said defendant failed, neglected and refused to use reasonable care in supplying the said complainant with reasonably safe tools and appliances with which to do his work, and with a reasonably safe place to do his work."
It is to be remembered that neither the running of the machinery nor its stoppage inflicted the injury on appellee; neither did the chain; neither did the links cause the wound. It was caused proximately by the blow of a small peen hammer upon a bent pin in the link being repaired in a vise, by appellee, as it was his duty to do, and as he was doing in the regular and conventional manner, and in accordance with his experience of several years. The blow of the hammer caused the unusual event of a sliver of steel flying from the pin in the link in the vise and into appellee's eye, blinding him. It was a simple operation with a simple tool, and appellants, in our judgment, were guilty of no justiciable negligence proximately injuring appellee, and hence the Chancery Court should not have awarded appellee any damages, but should have dismissed the bill.
See Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98, 99; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277, 279. In the case last cited we said this: "Courts in civil cases act upon reasonable probabilities. In trials under the common law, to prove a possibility only, or to leave the issue to surmise or conjecture, is never sufficient to sustain a verdict. New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 495, 151 So. 720; Berryhill v. Nichols, [171] Miss. [769], 158 So. 470, 471; Masonite Corp. v. Hill, [170] Miss. [158], 154 So. 295, 95 A.L.R. 157. Except in rare cases, of which this is not one, proof, without more, that a certain event transpired as a result of a stated condition, is proof only of the possibility and does not establish the probability. Jabron v. State, [172] Miss. [135], 159 So. 406. . . . the proof must show that the probability was a reasonable probability, reasonably to have been anticipated by a reasonably prudent person, . . .". We think it cannot in reason be argued here that the sliver would probably be made to fly from this relatively small pin, by a blow of this small hammer, and destroy the sight of appellee's eye. There was presented a mere possibility. The operation was a simple one, performed in the usual way by the use of a simple tool in the hands of an experienced workman, for the purpose of an uncomplicated repair job, by one whose duty it was to make the repair. There was nothing wrong with the hammer.
A case somewhat similar to the one at bar is Southern Ry. Co. v. Hensley, 138 Tenn. 408, 198 S.W. 252, 253. We quote the first syllabus: "A sharp-bladed, hammer-headed cleaver, used to cut iron rods by striking it with a sledge, was a 'simple tool,' the fact that the handle was not wedged being apparent on casual observation; and the employe, having equal opportunity to observe it, could not recover when injured by the head flying off." See also Middleton v. National Box Co., D.C., 38 F.2d 89.
We find nothing in the cases of Middleton v. Faulkner et al., 180 Miss. 737, 178 So. 583, and Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 475, that would fasten liability on appellant, or entitle appellee to the decree in his favor erroneously granted by the learned Chancellor, under the facts of the case before us.
Naturally our sympathies go out to this appellee, but sympathy cannot be permitted to influence us in dealing with the problems that come before us for adjudication. Therefore, in view of what we have said, supra, after a most careful consideration of the record, the briefs and the authorities cited, we are constrained to reverse the Chancery Court, and enter a decree here dismissing the original bill, since we are of the opinion it was error not to have dismissed it in that court.
Reversed and decree here for appellant.