Opinion
No. 36410.
April 7, 1947.
1. MASTER AND SERVANT.
A showing that floor board of truck had become unfastened so that to knowledge of employer's foreman, it would bounce upward and forward when front wheels of truck would strike the ground on rough terrain, but that it was not repaired, and that when employee drove truck, the floor board bounced up and axe lying on floor board injured employee's ankle, justified finding for employee in personal injury action.
2. APPEAL AND ERROR.
Where appellant did not contend that verdict was against the weight of the evidence, Supreme Court was required to accept version of accident given by appellee's witnesses and accepted by jury.
3. APPEAL AND ERROR. Trial.
In action against employer for injuries sustained by employee driving truck on rough terrain when loose floor board on truck bounced up causing axe on floor board to injure employee's ankle, instructions that a master must use reasonable care to furnish his servants with a reasonably safe place in which to work and safe instrumentalities with which to work, should not have been given because roughness of terrain was not the fault of employer, but were harmless where jury was not misled.
APPEAL from the circuit court of Simpson county. HON. HOMER CURRIE, J.
Hannah, Simrall Foote, of Hattiesburg, for appellant.
The appellant, who was the master, had provided a reasonably safe way in which to do the work, and, when the appellee failed to observe this reasonably safe method and undertook to perform the services in an unsafe manner, he thereby relieved the master from any liability.
Walley v. Williams, 201 Miss. 84, 28 So.2d 579.
See also Columbus Greenville R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
Instructions, regardless of the theoretical law announced thereby, should be applicable to the issues and proof of the particular case.
Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426.
An erroneous instruction may be cured by one granted the opposite party which supplements, modifies, and clarifies the erroneous instruction, but it is not cured or corrected by one in conflict therewith.
Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Hunt v. Sherrill, supra. Edwards Edwards, of Mendenhall, for appellee.
The employer is liable for the injury sustained by the appellee by reason of the defective truck, and the reasons assigned for its being defective were the loosely connected body, the loose floor board, and the presence of the axe on the floor board, in the hands of an inexperienced 16 year old boy, on rugged terrain, and all of said facts were known to the appellant or could have been known to it by the exercise of reasonable care and caution, and appellant is liable for the reason that it could have reasonably anticipated that some injury would have resulted from the operation of this truck in the condition it was at the time.
Veney v. Samuels, 142 Miss. 476, 107 So. 517.
Appellee, who sued by next friend, is a minor and was the plaintiff in the trial court and appellant the defendant. The proof sufficiently shows that the plaintiff was employed by defendant to drive a truck in the woods in hauling pine stumps. Because of the wooded terrain it was necessary to carry an axe which, while not in use, was customaryily carried on the floor of the truck cab. A substantial portion of this cab floor consisted of a tin floor board, and the axe would lie in whole or in part on this board. When the truck came from the manufacturer the floor board was fastened down on its edges all around by suitable screws, but for a considerable time before the injury here in question, these screws had been allowed to be withdrawn so that the floor board was loose and was held to the floor only by its own weight, — a fact which was well known to the defendant's foreman in charge.
The operation was in a hilly section; and the testimony further shows that the condition of the truck was such that often when ascending a hill, the body of the truck would slip back on the frame to the rear about one foot, which, when loaded or partly so, would so shift the weight as to cause the front end of the truck to tilt upwards from the ground, with the front wheels sometimes as high as three feet from the ground; and that when in this position and when maneuvered to get it back into position so that the front wheels would be again on the ground, the wheels would come back to earth with a considerable jar or jolt and this in turn would bounce the loose floor board and the axe lying in whole or in part thereon. On the occasion in question, the axe was thrown against plaintiff's ankle, causing a severe injury. Defendant, in its motion to exclude, said: "The testimony offered on behalf of plaintiff shows that the truck had stopped and that in starting the same up, the front end of the truck bounced up, or raised up, and that the jar resulting from the front end of the truck striking the ground caused the axe to move."
The declaration sufficiently charged the facts about the loose floor board and the manner of carrying the axe thereon. The declaration charged also that what caused the body of the truck to slip to the rear was that the body was insecurely fastened to the frame by worn and loose bolts and that the body of the truck would thus be allowed to tilt upward, there being no allegation that the front of the truck itself, including the wheels, would or did tilt or raise up from the ground as has been above described. Defendant says that because the proof is that the entire front of the truck, including the wheels tilted up from the ground, plaintiff has not proved the case alleged in the declaration, to wit, that the body of the truck tilted upward.
We think we may, for the purpose of a correct decision, eliminate any charge of negligence with respect to the manner in which the body was fastened to the frame and eliminate any charge of negligence as regards the shifting of the load and the tilting up of the front end of the truck, other than to observe that this had been happening for some time theretofore to the knowledge of defendant's foreman. This done, we have a condition of things well known to defendant, which set the stage for, and brings into view, as the proximate cause of the injury, the mischievous floor board negligently allowed to remain wholly unfastened, and which, by virtue of natural physical forces, would be bounced upward and forwards when the front wheels would strike the ground and which would impart the same upward and forward movement to the axe lying on the floor board, making it a reasonably foreseeable eventuality that some injury would be done by the axe in its agitation; and that was what happened here according to plaintiff's witnesses, — a version which was accepted by the jury and which must be accepted here as there is no contention that the verdict is against the weight of the evidence.
Complaint is made of the two principal instructions granted at the request of plaintiff. These instructions told the jury that it is the duty of the master to use reasonable care to furnish his servant with a reasonably safe place in which to work and reasonably safe instrumentalities with which to work. There was no issue properly in this case of a reasonably safe place to work. In Sanders Cotton Mill v. Moody, 189 Miss. 284, 296, 195 So. 683, 687, we called particular attention to the fact that "the place of work is the location, the situs, the premises, and if an injury occur there by force of an independent defect in a machine which is being used at the place, the wrong must be laid upon and proved against the machine, and is not to be ascribed to the more general exception of a safe place to work."
It was error to include in the two instructions any charge about a safe place to work; but in the instant case we think it may be confidently concluded that it did no harm for the reason that it is hardly possible and certainly not likely that a sensible jury would be led to consider that the rough terrain and the hilly woods in which plaintiff was put to work were such because of any fault or neglect on the part of the master.
We must assume that the jury had enough of the capacity of discernment not to be misled by the sterotyped inclusion of the language about a safe place to work in a case, as here, where there was nothing in the factual set-up which might reasonably draw them aside from the real charge and the real proof that what was being tried was an issue as to an unsafe machine rather than an unsafe place, and this particularly in view of the fifth instruction granted at the request of defendant which distinctly pointed up the charge against the machine as the actual and determinative issue in the case, and this, too, although that instruction in some of its terms gave to the defendant more than the latter was entitled to have in it.
Affirmed.