Opinion
No. 32487.
January 11, 1937. Suggestion of Error Overruled, February 22, 1937.
1. MASTER AND SERVANT.
Master has the nondelegable duty of exercising reasonable care to provide for and maintain safe place for his servant to work.
2. MASTER AND SERVANT.
In employee's action against principal for injuries sustained while in employ of agent when truck knocked over scaffolding on which employee was working, evidence as to whether agent was negligent in not warning employee who had ascended scaffold on direction of agent after having helped to unload in part lumber from truck so as to impose liability on principal held for jury.
APPEAL from the circuit court of Prentiss county. HON. THOS. H. JOHNSTON, Judge.
Jas. A. Cunningham, of Booneville, for appellant.
This presents a situation rendering it the nondelegable duty of the master to exercise reasonable care to provide a reasonably safe place for these men to work, including appellant; and not only that, but to exercise care to see to it that such place is kept reasonably safe.
Murray Chevrolet Co. v. Cotton, 152 So. 657; Mississippi Cotton Oil Mills Co. v. Ellis, 17 So. 214; Gulf Ref. Co. v. Ferrell, 147 So. 476; Restatement of the Law, Agency, sec. 492; 30 A.L.R. 1502.
The defendant company is responsible for the negligent acts of the defendant Robert Bartlett for the reason that Bartlett was present on the premises and engaging in the performance of duties of the Standard Oil Company, Inc., and was taking directions or at least was subject to directions of the defendant company's alter ego Chester Gossin, and the duty of exercising ordinary care to extricate this truck without endangering these employees was a nondelegable duty of the master.
Thomas v. Wisconsin C.R. Co., 108 Minn. 485, 23 L.R.A. (N.S.) 954, 122 N.W.; Vickers v. Kanawha W. Va. R. Co., 64 W. Va. 474, 20 L.R.A. (N.S.) 793, 131 A.S.R. 929, 63 S.E. 367; 29 A.L.R. 736; 26 C.J. 37, sec. 9.
Learned counsel endeavor to invoke the fellow servant rule, which is wholly beside the mark and in no sense applicable to this case. An examination of the set-up most obviously reveals that this was not a changed condition growing out of the work in which employee was engaged, but it was a collateral danger which the work he was performing had no effect upon whatever, and that the invading force originated from other sources than that of his work.
45 C.J., sections 263 and 266; Hamilton Bros. v. Narceise, 158 So. 467; Gow Co. v. Hunter, 168 So. 264.
It is perfectly apparent from this record that it never at any time became the duty of appellant Norton to control the actions of this truck. He was ordered to go back to work in a very dangerous place; the order by his foreman constituted the grossest sort of negligence in view of the fact that the foreman did not intend to give notice when the truck moved out or to supervise the extrication of the truck from this dangerous proximity to this scaffold or trestle bench should mature with the movement of the truck. This the foreman is charged with duty to anticipate under Russell v. Williams, 151 So. 372.
Edwards v. Haynes-Walker Lbr. Co., 74 So. 284.
The proposition that Gossin did not promise these men that he would exercise ordinary care for their safety when this truck should move out and endanger them in the place where he had sent them to work by direct order, is a most novel one. What promises could Gossin have made that would have been stronger and more obligatory on his master than the solemn mandate of the law which required of him the exercise of ordinary care to see to it that these men were not endangered by the movements of this truck in the dangerous place where he had ordered them to work and of which he had full knowledge? There was no promise in the Edwards case, there was no promise in the Ellis case, there was no promise in the Russell case, and there was no promise in the case of Yazoo Mississippi Valley Ry. v. Smith, 117 So. 339, where the employee was similarly situated as the appellant in this case and relied upon notice, failed to get it, and negligence was predicated and liability found.
Lyell Lyell, of Jackson, for appellees.
In the case at bar there was no obligation or promise by Chester Gossin to warn the plaintiff and the other carpenters that the truck would move and when it would move. There was only one truck involved, and the plaintiff and the other two carpenters were on the scaffold over that truck, and the plaintiff himself was in the middle immediately over the truck, which could not have been over two or three feet below him. He knew the driver was there and would immediately move out when the lumber was unloaded. He saw and could have seen Bartlett get in his truck to drive off. He undoubtedly thought the whole situation was entirely safe, or, at least, reasonably safe, or he and the other two carpenters would not have gotten back on the scaffold or would have requested Bartlett to warn them before heading out with his truck. All of them were aware that he could see and that he did see and know everything that was going on and that the truck which was safely backed in would head out. The fact that all three of them acted as they did shows that they all regarded the situation as entirely safe to all concerned.
Columbus Greenville R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
If a servant is of a class of persons who normally would know the conditions, or if he represents himself as being a person who knows the conditions or who would discover the defects if they existed, the master is under no duty to warn him, unless the master knows that in spite of appearances the servant is unfamiliar with the conditions and will not realize the risks. Even if the master neglectfully or unintentionally fails to perform what otherwise would be his duty, a servant who becomes aware of a dangerous condition of employment ordinarily has no cause of action for harm thereby suffered.
Restatement of the Law of Agency, section 510 and sub-section (f), page 1151.
The requirement that the master furnish a reasonably safe place to work does not apply to cases in which the work is of such a nature that during its progress the conditions are constantly changing as regards an increase or diminution of safety.
Restatement of the Law of Agency, section 500.
At the time and place in question Gossin was a fellow-servant of the plaintiff. He was engaged in sorting out the lumber unloaded by plaintiff and the other carpenters and Bartlett and out of which the garage doors were to be made. The plaintiff was finishing the nailing of the top board strip to receive the garage doors which he was to make from the blue prints turned over to him by Gossin. They were working in the same common employment and were fellow-servants, and hence there can be no recovery even if Gossin had been negligent in any respect.
Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174; Lagrone v. M. O.R.R. Co., 67 Miss. 592, 7 So. 432; Givens v. So. Ry., 94 Miss. 830, 49 So. 180; Harper v. Public Service Corp., 154 So. 266, 170 Miss. 39; Labatt's Master Servant (2 Ed.) pages 4314-4316; City of Tupelo v. Payne, 168 So. 283; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Restatement, Agency, sections 475, 479, 480; Brown v. Coley, 167 Miss. 778, 152 So. 61.
In the case at bar, if there was any element of danger whatever, no one knew it any better than the plaintiff, who is thirty-three years older than the foreman Gossin and who has had thirty years of experience as a carpenter as compared with ten years experience of Gossin, though the latter is competent.
We respectfully submit that under the decisions of this court and the facts of this case, that if reasonably safe place to work doctrine applies, which is denied, such a place was furnished by the appellee to appellant and that the appellee was under no duty through Gossin to warn the appellant because appellant knew everything and more than Gossin did about the whole situation.
39 C.J., page 970; Cobb Bros. Construction Co. v. Campbell, 170 So. 283; Truly v. J.E. North Lbr. Co., 83 Miss. 430, 36 So. 4; Y. M.V.R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Y. M.V.R.R. Co. v. Hullum, 119 Miss. 229, 80 So. 645; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.
Argued orally by Jas. A. Cunningham, for appellant, and by G.G. Lyell, for appellee.
W.W. Norton, the appellant, an experienced carpenter, was employed by Chester Gossin, agent of the appellee, the Standard Oil Company, to construct a garage and warehouse in Baldwyn, Miss. It can be stated that Gossin was the alter ego of the appellee, the Standard Oil Company, as to the events of this case. On October 8, 1935, Norton was engaged as a carpenter in that work. Bartlett, a defendant in the court below and operator of his own motortruck, on the afternoon of that day, delivered, on the order of appellee's agent, a load of lumber, about one thousand feet of cypress, to be used in constructing a door to the building. Norton, with Lassiter and Cole, also carpenters, was standing on a trestle bench or horse, nailing a strip of lumber across the top of the door to the building. The trestle bench was a plank about fourteen feet long and twelve inches wide, with legs made of lumber nailed to the plank about two feet from either end thereof, and were braced with lumber forming about a forty-five degree angle. It was safely and properly constructed. Bartlett, the truck driver, backed his truck under and very near one end of the trestle bench, whereupon the appellant and the other carpenters descended from the bench, which was movable and rested on a concrete base, and proceeded to assist the driver in unloading the lumber. When the unloading was about half completed, Gossin ordered the three carpenters to return to their work, which they did; and the jury were warranted in finding from the evidence that he did so. While the carpenters were engaged in the nailing of a strip of lumber across the door of the building, a particular piece of work which required them to look up and work with their faces and hands elevated, suddenly, without warning, the motortruck moved quickly forward and the appellant and the other carpenters were thrown violently to the ground. Norton attempted to brace himself from falling by holding on to a piece of timber, but it gave way and he fell to the ground and was injured.
There is evidence tending to show that Gossin, appellee's agent, was standing near the truck while the lumber was being unloaded and when the bench was pulled over. There is some evidence that he was engaged in sorting some of it and stacking it very close to the truck and to the bench. The carpenters all testified in this case that they had no warning or intimation that Bartlett was about to move the truck, and that after having been ordered to resume their work, they relied upon Gossin to warn them. In fact, they testified that they were looking upward at the piece of lumber they were nailing, with their hands elevated in so doing, and that they could not watch out for themselves and do their work at the same time.
Bartlett delivered the lumber from the lumber plant as a public drayman; he was not in the employ of the lumber company or of the appellant company. He testified that he knew that his truck, which had "a cotton body thereon with standards on the side," was very close to the top and sides of the trestle bench, and that in driving out, he might have turned too far to the right and thereby overturned the bench. A witness offered the theory that when the load of lumber was removed, the springs of the truck moved upward and caught in the crosspieces or braces of the bench, and thereby caused it to fall down.
At the conclusion of the evidence, the court below sustained the motion of the Standard Oil Company to exclude the evidence of the plaintiff and grant it a peremptory instruction. A mistrial was ordered as to Bartlett and the case as to him was continued.
On appeal here, it is the contention of the appellant that the court erred in granting the peremptory instruction, and that the question of negligence was for the decision of the jury.
The appellee contends that the work was that of the construction of a building in which Norton, an experienced carpenter, was engaged; that he knew the situation there as well as its agent, Gossin, and that because of the shifting changes in the construction of the building the master was under no duty to warn the appellant under such circumstances, that Norton knew of the danger and peril to him with reference to the position of the truck as well as the master, through its agent, could know.
We think the facts above stated demonstrate that the court below erred in granting the peremptory instruction to the appellee, and that a case was made out to be passed upon by the jury. As to whether or not Gossin was negligent in not providing for a warning to these carpenters who had obeyed his order and proceeded to work elevated in the manner we have heretofore described, the driver of the truck and the master were aware of the proximity of the truck to the top plank and braces of such trestle bench, the carpenters having descended from the bench to a place of safety and having helped unload in part the lumber from the truck in order to get back to their work when Gossin, the master's agent, ordered them to return to their work and although the agent did not say to them verbally, "I will watch out and give warning before the truck is removed," we think, under these circumstances, appellee was clearly charged with that duty.
It is the nondelegable duty of the master to exercise reasonable care to provide and maintain a safe place for his servant to work. See Oil Mill Co. v. Ellis, 72 Miss. 191, 17 So. 214; Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; Murry Chevrolet Co. v. Cotton et al., 169 Miss. 521, 152 So. 657; Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797; Yazoo M.V.R. Co. v. Smith, 150 Miss. 882, 117 So. 339. The servants were in a place of safety in the case at bar; they had taken the precaution to descend from the trestle bench. The master ordered them to return knowing of the position of the truck. It was then the duty of the master, through its agent, to exercise reasonable care to warn the men of a change in that situation as to the position of the truck. If the jury should find that a reasonably prudent man should have foreseen the movement of the truck without warning, the movement of which might reasonably be expected to bring about some injury, then there would be liability. The master, through its agent, in the case at bar assumed direct control of the men and of the situation. We think this case falls clearly within the principle announced in the cases of Gulf Refining Co. v. Ferrell, Coast Ship Co. v. Yeager, and Yazoo M.V.R. Co. v. Smith, supra.
This case is clearly distinguished from the City of Tupelo v. Payne (Miss.), 168 So. 283. The servant Payne therein was engaged in the construction of a building where he was general handy man, where the scene was constantly changing, and where he was free to act upon his own judgment in the removal of lumber, and wherein he was injured by the fall of studding, knocked loose at top by a carpenter, after his, Payne's, removal of the lumber which supported it — practically the same situation as if one helping him in removing the lumber had dropped a piece upon him and injured him. The master was under no duty to warn, because the servant knew as much of the changing situation there as did the master. We do not think the facts of the case are within the following cases urged by counsel: Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174, 12 L.R.A. (N.S.) 1040, 8 Ann. Cas. 1077; Lagrone v. Mobile O.R. Co., 67 Miss. 592, 7 So. 432; Givens v. Southern Ry. Co., 94 Miss. 830, 855, 49 So. 180, 22 L.R.A. (N.S.) 971; Harper v. Public Service Corporation, 170 Miss. 39, 154 So. 266 (citing 4 Labatt, Master Servant (2 Ed.), pp. 4314-4316); City of Tupelo v. Payne (Miss.), 168 So. 283; Restatement of Agency, secs. 475, 479, 480; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.
Reversed and remanded.