Summary
In Oakes v. Mohon, 208 Miss. 478, 44 So.2d 551, which is also cited by appellant, the servant did what the foreman told him to do and the master was then acting through his supervisor and had provided an improper instrument and had specifically instructed the servant to use it in an unsafe manner, which resulted in the injury, the instrument in that case being a twenty-four inch Stillson wrench.
Summary of this case from Long v. Woollard, Farmers ElevatorOpinion
No. 37406.
February 27, 1950.
1. Master and servant — obeying orders — assumption of risk — contributory negligence.
If the master expressly and affirmatively order the servant to omit the safe method and to do the work in a dangerous way, the servant in obeying the order is not barred of recovery for the consequent injury to him unless the circumstances are such that in so doing the servant would act as an insane person, or as one wholly indifferent to the inevitable consequences, — the servant is not barred if it was not unreasonable or incomprehensible that he would undertake to obey the order without first weighing the chances of consequent injury under the circumstances.
2. Master and servant — statutes on assumption of risk and contributory negligence — when negligence of master a contributing cause.
As a general rule under the statutes abolishing or modifying assumption of risk and contributory negligence where master is himself negligent, the master can escape liability for an injury to his servant only by showing that the master's negligence was not a proximate cause of the injury or that the servant's own negligence or that of a fellow servant, was the sole proximate cause, and the negligence of a fellow servant is not available against the injured servant if the action of the fellow servant was brought about by the direct order of the master.
3. Trial — instructions — misleading as to proximate cause and contributory negligence.
Instructions which eliminate the question whether the order of the master followed by an injury to the servant was either the proximate cause or a contributing cause to the injury and which tend to mislead the jury as to assumption of risk and contributory negligence are erroneous.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Yazoo County; H.B. GILLESPIE, Judge.
John S. Holmes, for appellant.
The court below gave to the defendant four instructions to the effect that even though the jury might believe that the plaintiff, Willie Oakes, was negligently ordered by the defendant's vice-principal, C.O. Bradley, to perform his duties in an unsafe and dangerous manner, and as a result his leg was broken, that still plaintiff could not recover if they further believed that Oakes was experienced, aware of the danger, and that the danger was one that a reasonably prudent man would not incur even under orders. We shall see that these instructions are based on the doctrine of assumption of risk, which doctrine has been abolished in this state by statute.
It certainly seems a harsh rule to say that it is the duty of a servant to obey the commands of his master, but that if the master is grossly negligent and orders an act involving an unreasonable risk to the servant and as a result of his obedience to the command the servant is injured, the servant can't recover anything at all. At the very least it would seem that master and servant were mutually responsible for the injury. It would seem that this rule decreases liability as negligence increases, the reverse of the correct rule. It would leave a servant seeking to recover on the ground of a negligent order in a position where he had to show not only that the order resulting in his injury was one that a reasonably prudent person would obey. Certainly if the knowledge and experience of the participants were equal, the distinction would be hard to draw. But this rule actually was part and parcel of a doctrine that came to be widely accepted at common law and by the year 1870 was generally recognized by the courts. Since that time it has been greatly curtailed and restricted by decision and statute until it operates practically nowhere.
Of the four instructions three of them would be good at common law. The fourth was never recognized anywhere at any period of legal history, no matter how harsh or dark. None of the instructions are correct law in Mississippi.
The exact facts set up in the instructions, except in the instruction as to a fellow servant, would, in the absence of coercion by the master, constitute a complete defense regardless of the master's negligence if the doctrine of assumption of risk prevailed in Mississippi as between master and servant in cases where the master was negligent, or if contributory negligence was a complete defense in Mississippi; but the principles of law embodied in said instructions, insofar as they attempt to set up complete defenses to the master's negligence, are nothing except rules operating as a part of these two doctrines, and they have no efficacy where said doctrines are not in force; on the contrary they have never been recognized or applied in Mississippi, but have been repeatedly repudiated, since the passage of the following statutes:
Code of 1942, Sec. 1454. "Contributory negligence no bar to recovery of damages — jury may diminish damages. — In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property."
Code of 1942, Sec. 1455. "Negligence — questions for jury. — All questions of negligence and contributory negligence shall be for the jury to determine."
Code of 1942 — Sec. 1456. "Abolishing doctrine of assumption of risk of employee, when the master is negligent — exception as to certain employees. — In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master; except as to conductors, or locomotive engineers, in charge of dangerous or unsafe cars or engines voluntarily operated by them."
We can see that by these statutes contributory negligence is never a bar to recovery in Mississippi, if negligence, on the part of the master, was a proximate cause, or a contributing proximate cause, of the injury, instead the doctrine of comparative negligence is invoked and damages are reduced. Also, when negligence is shown on the part of the master to have resulted in injury to the servant, the doctrine of assumption of risk is entirely abolished in this state; of course, if negligence on the part of the master isn't shown, the plaintiff would have no case anyway; for that reason, and because juries seldom apply the comparative negligence rule with any great degree of severity against servants, lawyers in Mississippi have forgotten a large part of the knowledge of the doctrines of contributory negligence and assumption of risk that they were supposed to have gained at law school.
Let us now look at the Mississippi authorities. We will see that once negligence has been shown on the part of the master, followed by injury to the servant, the only way the master can entirely escape liability is to show that his negligence was not a proximate cause of the injury, or as expressed another way that the plaintiff's own negligence, or the negligence of a fellow servant was the sole proximate cause of plaintiff's injury.
The Mississippi case where the rule regarding a negligent command is best stated in Brown v. Coley, 168 Miss. 778. This is a case where a servant, as one of his regular duties, had to transfer gasoline from a bucket into a tank. Instead of using the funnel which the master had furnished, and without orders from the master or his duly authorized representative, he poured the gasoline directly from the bucket into the tank. In holding the plaintiff could not recover Judge Griffith said: "It is urged, however, that although a funnel was provided for doing the work of filling the tank, the master knowingly permitted his servants to do the work without the use of the funnel, and that the master is therefore liable for permitting the prevalence of a dangerous method or system. When the master has furnished a suitable place in which to do the work and the ordinary, proper, and suitable equipment and appliances kept in good order with which to work, than as to any further duty owed by him whether the inquiry be in respect to the adoption of a system or method, the promulgation and enforcement of rules and regulations for the maintenance of a reasonably safe method or system, or in regard to warning his servant of dangers, the answers to the inquiry are found to be grouped, in general, under two principal and controlling heads, as follows: If the servant is a mature and sensible man of some experience in the character work there being done, the obligation to look after and to take care of himself as to all obvious or manifest dangers arising in the details of the work, the master is liable only when he fails to furnish the usual and proper instrumentalities in proper repair which if used, and properly used, will to a reasonable extent obviate the danger, or where he affirmatively orders the servant to omit the safe way and to perform the work in the unsafe manner, the order of the master so to do being given either at the particular time, or at previous times, and thence the improper and unsafe method has been pursued in virtue or by the force of the previous affirmative orders. If he fails to furnish the usual and customary instrumentalities, the master has not supplied the conditions which will enable the servant to take care of himself, and if the master expressly and affirmatively order the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant, and to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders.
"There is no evidence here that the dangerous act done by the servant was at the present or previous orders of the master. The testimony of the master was that he had given orders not to pour the gasoline without the funnel, to which appellee replied only that he had never heard of such orders, and that, if given, they were habitually disregarded with master's knowledge. Appellee testified that he poured the gasoline as he did at the present order of Baker. But Baker was only a fellow servant as appellee himself admits, and Baker's assumed authority to give the order and the voluntary recognition of that order by appellee does not bind the master, as was held upon the precise point in Gulfport M. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340. See, also, Natchez Co. v. McLain (Miss.), 33 So. 723. And as to the contention by the servant in this case that the master either saw him pouring the gasoline without the funnel or was near enough to have seen him, and that the master should be held liable because he did not interfere, we say only, as has in effect already been said, and in similar effect has been said in so many other cases, that when the master has met the conditions aforementioned, he is not the obligatory guardian of the servant as to ordinary and obvious dangers but the servant must be his own guardian."
The defendant will use a line or so of dicta from this case to try to justify his instructions. The dicta referred to is as follows: ". . . he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders."
The defendant's position will later be shown to be untenable, but for now it will suffice to point out that the case with absolute correctness holds that when a servant is experienced and mature, the employer owes him only two principal duties as to manifest dangers: 1. To furnish reasonably safe tools, which, when properly used, will allow the work to be done in reasonable safety. 2. Having furnished such tools, the master owes the servant the further duty of not ordering or directing the servant or a fellow servant to perform the work in an unsafe manner.
The master owes the servant the second duty irrespective of whether or not he has met the first requirement, and irrespective of whether or not the danger is manifest and the servant experienced, and his failure in this second duty constitutes negligence regardless of the fact that a reasonably prudent person would not do the thing ordered under orders. The fact that the servant was ordered to do a thing so dangerous a reasonably prudent person would refuse to do it could not by any kind of reasoning erase the original negligence of the master, indeed it could only serve to show that such negligence was gross; but it is true that, under certain theories of law, not now in force in Mississippi, the fact that the risk was one a reasonably prudent person should not encounter even under orders could be used as a defense to the master's negligence, and in Mississippi set up a contributory negligence.
Let us take the finding of fact which the objectionable instructions stated would require a verdict for the defendant and see how they fit into the case of Brown v. Coley. (1) that employer had made available safe tools. We can see that the duty not to direct an unsafe method of performing the work exists in spite of the fact that safe tools have been furnished. (2) that employee is experienced in the work. This is the very type of employee under discussion in Brown v. Coley and to whom it is stated that the duty is owed. (3) that danger is obvious and manifest. This is the exact type of danger that the case states an employee must not be subjected to by the master directing an unsafe manner of performing the work. We have thus disposed of all the findings which the four instructions required except the finding that the risk was one a reasonably prudent person would not incur, even under orders. The fact that a reasonably prudent person would not obey the order as plaintiff did, would mean nothing more than that plaintiff was contributorily negligent. If a reasonably prudent person would obey the order then the plaintiff was not even negligent, much less altogether barred from his cause of action.
We are going to see later that by the dicta quoted above Judge Griffith did not mean, and could not have meant, that the unreasonable nature of the risk would completely bar plaintiff, but only meant that it could be asserted as contributory negligence.
The next case is that of Yellow Pine Co. v. Mitchell, 168 Miss. 152. In this case the plaintiff's duty was to lift and stack packages which were too heavy for one man to handle. His employer had furnished a helper, but while the helper was temporarily absent, the foreman of the job peremptorily ordered plaintiff to go on with the work by himself, threatening to discharge him if he did not do so. The court held the master liable for the foreman's negligent command saying: "Appellant's foreman knew, or should have known, that it would be dangerous to the life and limb of appellee to lift and stack the packages without his cohelper, Bounds. It is as much the duty of the master to exercise reasonable care in providing the servant with reasonably safe means and methods of work, such as proper assistance in performing the task, as it is to furnish him a safe place and proper tools and appliances. `The one is just as much a primary, absolute and nondelegable duty as the other.' If appellee had voluntarily undertaken the job, the overexertion doctrine relied on by the appellant would apply; the proximate cause of his injury would have been his own fault; appellant would have had no part in the cause of his injury."
Note that in the above case the employer had originally furnished adequate help, just as in our case, according to the four instructions, the employer had furnished safe tools, and it was the master's duly authorized foreman who unnecessarily ordered the unsafe act resulting in the injury. We will also see when we read the quotation from the next case that as long as the foreman directed the unsafe method, it makes no difference whether or not he forced obedience by threats.
In the case of Hardaway Contracting Co. v. Rivers, 181 Miss. 727, we find the same kind of situation, an order of a foreman to plaintiff and others to lift and move heavy mat, except no threat of discharge or coercion. Judge Sidney Smith says: "The common law rule that a servant assumes the risk incident to the negligence of his master, of which he has knowledge, was abolished as to most railroad employees by Section 193 of the State Constitution, and as to all employees `except as to conductors, or locomotive engineers, in charge of dangerous or unsafe cars or engines voluntarily operated by them' by Section 513, Code 1930. That the appellee may not have been coerced into assisting in lifting the mat, but voluntarily did so, is of no consequence, for the statute itself contains the only exception in this respect which it permits, and it must be enforced as written."
Court also makes the following interesting remark about the case of Yellow Pine Co. v. Mitchell which we have just discussed: "Mitchell, in his case, was directed to move, by himself, a timber which he knew was too heavy for him so to do, under a threat of discharge if he did not obey. In attempting to comply with this order he fell because of the weight of the timber, and was injured. The court held that, although Mitchell knew the timber was too heavy for him to move alone, he did not assume the risk incident thereto, for the reason that his employer had coerced him into so doing, thereby applying a common law rule, by which the same conclusion was reached as would have been had the case rested on the statute hereinbefore cited. The expressions therein used indicating that Mitchell would have assumed the risk had he voluntarily attempted to move the timber, or, rather, that in that event the negligence causing his injury would have been his, and not that of his master, were not necessary for the decision of the case, and, insofar as assumption of the risk is concerned, runs counter to the statute hereinbefore cited."
This is an unusually well reasoned case and emphasizes what should by now be apparent, that if the master gives a negligent direction resulting in injury to the servant he is liable therefor and there is no need for the courts to resort to common law rules to save the servant from the doctrine of assumption of risk. A simple reference to the statute abolishing same will serve the purpose. See also Martin v. Beck, 177 Miss. 308; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471; Newman Lumber Co. v. Cameron, 179 Miss. 217; Gow Co., Inc. v. Hunter, 175 Miss. 896; Jefferson v. Virginia-Carolina Chemical Co., 184 Miss. 23; Odom et al. v. Walker, 193 Miss. 862; Maonite Corporation v. Graham, 199 Miss. 833; Walley v. Williams, 28 So.2d 579; Ingalls Shipbuilding Corporation v. Trehern, 155 Fed. 2d 202; Pittman, et al. v. Schultz, 125 F.2d 82.
Goss v. Kurn, et al., 187 Miss. 679. Another case of a foreman ordering an employee to lift too great a weight. The court said: "We think that the appellee is in error therefore in saying that the same result must be reached whether the case is under the state law or under the federal law. The testimony of plaintiff, if true, would show negligence on the part of the master under the state law, and he would not be expected to assume or held to have assumed the risk of the master's negligence; and, under state law, the direction of the section foreman to do the work in which the injury occurred in which he told him he would lose his job if he did not do what he was told to do, relieved him from any assumption of the risk."
Graham v. Brummett, 182 Miss. 580. This case involved the question of whether master was liable when servant stepped on unsafe platform. In regard to assumption of risk the court said: "In other words, when the master is negligent, and that negligence contributes directly and proximately to the servant's injury, there is no assumption of risk as to such negligence in Mississippi." And see Crosby Lumber Manufacturing Co., et al. v. Durham, 181 Miss. 559.
After reading the authorities which have been cited and discussed we must conclude that: 1. The order of a duly authorized representative of the master directing his servant to use an unsafe method of performing the work constitutes negligence on the part of the master. 2. This is true whether safe tools have been furnished or not. 3. This is true whether the servant knew and appreciated the danger or not. 4. This is true whether the risk is one a reasonably prudent person would incur under orders or not. 5. Once negligence has been shown on the part of the master which proximately contributes to the injury, there is no complete defense available to him.
Henry Barbour, Lotterhos Dunn, for appellee.
The instructions leave open the question of whether or not the plaintiff and his fellow employees voluntarily selected their own tools and method of work.
If defendant was not entitled to a peremptory instruction then the only issue remaining for the jury to pass upon was whether the plaintiff and his fellow employees were "forced" to use inadequate tools in the work.
Basically, we rely upon the rule which is well settled in this state and which finds clear expression in the case of Martin v. Beck, 177 Miss. 303, 171 So. 14. The rule is announced as follows: "The rule has often been affirmed by this court that when the master furnishes a reasonably safe means or method of doing certain work and the servant elects to use a different and dangerous method, he cannot recover for the reason that such acts become the negligences of the servant and not the master. Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 716, 118 So. 441. See, also, Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 668, 142 So. 443."
If the alleged order or suggestion attributed to Bradley did not force the use of improper tools, it follows that the men must have selected their own tools. In considering the instruction now complained of, we must bear in mind the factual situation as presented in this particular case. Significant among these facts are the following: (1) Adequate tools were furnished and these were conveniently within reach; (2) The men, including the plaintiff, were experienced; (3) The men knew that the tools were at hand and knew how to use them; (4) The men knew what tools to use for the particular job; (5) There was no emergency shown to exist; (6) There was no protest against the use of any tools; (7) There was no direction by anyone to omit the use of proper tools; (8) There was no threat or warning of any kind, and (9) there was no ignorance on the part of the plaintiff and the other workers of the dangers involved or of the existence of safe tools and the presence of these tools within easy and convenient reach.
We add to the above facts the general custom of procedure by well servicing crews throughout the land, of which this particular crew was no exception. The custom was for each man to use his own judgment and to select his own tools, and it was not necessary or customary to have to tell the men what to do or what tools to use, and the plaintiff and his fellow employees were accustomed to exercising their own judgment. The evidence is all to the effect that a wrench with a cheater pipe was a safe tool in this operation; yet plaintiff, knowing the danger and appreciating the risk, elected without direction of any kind not to use a cheater pipe, and no claim has ever been made that he was told by anyone to omit the use of a cheater pipe or that he was not perfectly free to use such cheater pipe with the wrench had he seen fit to do so. It is also undisputed that Joe Oakes or Joe Heathcock were not directed in any way with reference to assisting Willie Oakes on the wrench. Neither of these parties were directed not to get on the wrench with Willie or not to use any particular tool.
We again make the point that the danger, if any, was solely the creation of plaintiff or of plaintiff and his fellow employees. Certainly the alleged general order of Bradley to "screw on as you are rigged up" or "get a wrench and give a hand" did not exclude the simple process of using the cheater pipe which was lying beside the wrench in the truck, or exclude one of the other employees from getting on the wrench with Willie Oakes, and this is particularly so since no one claims that Bradley directed anyone to omit the use of anything, and particularly since plaintiff and his fellow employees fully appreciated the danger and made no protest of any kind or objection to the process of the work.
Appellant principally complains of the defendant's instructions which have been numbered 1 and 4. These two instructions told the jury to find for the defendant even if they believed that Bradley "ordered or directed plaintiff and other workmen to use unsafe or improper tools" — provided they also believed from a preponderance of the evidence: 1. That the men were experienced, and 2. That they realized the risk and danger, and 3. that there was not objection, and 4. that there "were then available for use in such work other and safe tools."
Even so, the jury could not, under these instructions, find for the defendant unless they also believed that the danger of using the tools that they did was such that no one use them "even under orders", or unless they also knew that it would involve a clear and immediate risk".
The 4th instruction specified that the other and safe tools must have been "available to him . . . which he was privileged to choose and work with instead of the alleged unsafe tools", which meant no more than that the tools must have been then available for use in such work, but which did serve as a clear definition of the term "available".
The instructions did not: 1. Tell the jury that under any circumstances they might find for the defendant if Bradley gave a "negligent" order, or if they found that the defendant was guilty of negligence which contributed to the injury. 2. Tell the jury that under any circumstances they might find for the defendant if the order attributed to Bradley caused or contributed to the accident. 3. Even tell the jury that they might find for the defendant under any circumstances if the plaintiff heard, acted on or was influenced by the order. 4. Exclude liability in the event the jury believed that the plaintiff did not act voluntarily or voluntarily elect the unsafe tools.
On the contrary, the instructions did: tell the jury to find for the defendant if they believed that plaintiff, knowing the danger of so doing and knowing the risk involved, used unsafe tools, without objection, when others were "then available for use in such work".
In argument, plaintiff's counsel says: "how could the fellow workmen comply with the master's directions and still be privileged to do something else?"
The answer is that if they were privileged to do something else, they acted upon their own in electing to use what they did use, and not upon the master's directions. The question is not whether directions were given, but rather the effect of such directions, that is whether they caused or contributed to the accident.
It is undisputed on the record that Bradley did not order anyone to omit the use of safe tools; that there was no threat whatever; that alternative and safe tools were provided; that there was no objection or protest from anyone; that there was no emergency and that plaintiff and his fellow workmen knew and appreciated the danger.
Not only did the instructions require, as a condition to a verdict for the defendant, that the jury believe that safe tools were provided at the job; they required a finding that these were then and there available for use in the work.
These tools could not have been available in any sense if, by virtue of an order, the men were prohibited from using them; but these instructions left clearly to the jury the question of whether the order had this effect.
Defendant's instructions Nos. 2 and 3. These instructions did not deal with an alleged order to use improper tools, but dealt only with the absence of a spinning wheel and the absence of any duty to furnish the safest and best tools for the work.
Plaintiff's instructions. 1. One told the jury to find for the plaintiff if Bradley "negligently ordered the plaintiff to perform his work in a manner not reasonably safe and as a direct and proximate cause thereof", the plaintiff was injured. 2. Another required a verdict for the plaintiff if Bradley "caused the plaintiff and his fellow workmen to proceed", in the unsafe way. 3. Another required the same verdict on the same finding "even though they (the jury) believe from a preponderance of the evidence that the plaintiff or his fellow servants were also negligent". 4. Another required the same verdict if defendant "failed to exercise reasonable care to furnish plaintiff with such proper tools".
These instructions are correct; they supplement but in no way conflict with defendant's instructions. Defendant's instructions did not tell the jury to find for the defendant if they believed that the order was negligent, or if the order caused the plaintiff or his fellow workmen to proceed in an unsafe way or if the defendant was in any respect negligent.
Reading the instructions together, they correctly informed the jury that if defendant was negligent or by negligent order caused or contributed to plaintiff's injury, to find for the plaintiff, but that if, on the other hand, plaintiff and his fellow workmen, appreciating the danger, chose unsafe tools when other and safe tools were then available to them for use in the work, they should find for the defendant.
If safe tools were furnished, the master was not negligent in failing to furnish safe tools. If, being furnished, they were also "then available for use in the work", and plaintiff elected to use others, the responsibility is his. If despite an order to use certain tools, the others were still available to them, the jury had a right to say whether the use thereof was caused by the order or by voluntary election of plaintiff and his fellows.
It is axiomatic that all of the instructions must be read together and considered as a whole. Several of the more recent cases so holding are: West v. Majure, 34 So.2d 726; Bonelli v. Flowers, 203 Miss. 843, 33 So.2d 455; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Avent v. Tucker, 188 Miss. 207; 194 So. 596. Other cases to the same effect will be found digested under key No. 295 (1) of the Mississippi Digest.
In the consideration of the instructions, it is necessary to determine whether as a whole they are misleading to the prejudice of the losing litigant. We understand the rule to be that unless the court can say with confidence that the jury was in practical respects misled, and that the losing party thereby suffered substantial prejudice, the instructions must be approved and the case affirmed. This is our interpretation of this court's holding in the recent case of St. Louis — San Francisco Ry. Co. v. Dyson, 43 So.2d 95.
So construed, we respectfully submit that the instructions, taken together and read as a whole against the background of the facts as hereinabove outlined, furnished a sound and practical guide to the jury, and they could not in reason have been misled to appellant's prejudice.
Actually the defendant's instructions assumed a greater burden before the jury than the proof reasonably required. The so-called order or direction was at best a loose statement or mild suggestion on the part of Bradley and could not reasonably be interpreted as a peremptory command or an order to omit the use of safe and available tools. If it had been so interpreted by plaintiff and his fellow workers, it is certain that the alleged order would have brought forth a spontaneous protest, and this is especially true if, as in effect claimed by plaintiff, the method contemplated was known to be dangerous and to involve a clear and immediate risk. The absence of any such protest is the very strongest evidence that could be reasonably conceived of as demonstrating that the plaintiff and his fellow employees did not interpret Bradley's statement, if any, as destructive of their volition or as restricting them in the selection of adequate tools for the performance of the work with which they were shown to have been intimately familiar.
It follows from what has been stated that, if the alleged order or statement was in fact given or made, it was not subject to the interpretation which appellant's counsel would now place upon it, and if it were not subject to such interpretation, the instructions would be harmless even if technically erroneous.
If the servant act under compulsion of orders or otherwise because of the employment, the ordinary rule does not apply, all for the simple reason that the servant is not free to elect. If he acts under compulsion, he does not choose voluntarily.
In Martin v. Beck, 177 Miss. 308 the servant was injured while attempting to fill a tank with gasoline at night with the use of a kerosene lantern. The court denied recovery because he elected to use the dangerous method of filling the tank at night when he was privileged to fill the tanks and had the opportunity to do so in the daylight of the early morning hours.
The plaintiff presented and was refused an instruction on the theory that he was ordered to use the dangerous way. The evidence was that the foreman "suggested" this. The court said: "A suggestion is not an order or command, and even so, there was left time between daybreak and 6 o'clock the following morning" to perform the work.
This is a clear holding that even an order or command will not justify the servant in knowingly adopting an unsafe method, when the opportunity was left open to use the safe method. To take the case out of the rule, something more than an order must appear. It must be shown that the plaintiff acted under compulsion thereof.
In Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 551, the servant was injured while attempting to remove trash from a machine he was operating without stopping it. The foreman had ordered him to keep the mill moving and to keep the trash cleared. Plaintiff interpreted this as an order to remove the trash while the mill was running.
The court said that the order was not subject to this interpretation. The court observed: "There was no threat of discharge . . . He was experienced; he certainly knew and appreciated the danger, and when he voluntarily placed his hand in this position he assumed the consequences resulting from his own reckless act."
This case emphasizes that the order to the servant must involve compulsion.
Brown v. Coley, 168 Miss. 778, 152 So. 61, emphatically announced the governing rule that the master is liable "where he affirmatively orders the servant to omit the safe way and to perform the work in the unsafe manner". Also: "If the master expressly and affirmatively order the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant and, to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence would encounter it, even under orders."
Masonite Corporation v. Graham, 199 Miss. 833, 25 So.2d 322, approves the rules announced in Brown v. Coley, supra, saying: "And for the master to be liable the injury to the servant must result . . . from the use by the servant of an unsafe method he is forced to adopt because of command of the master. . ."
The last two above cases clearly announce that the servant must be forced, or to put it in the words of the first cited case, the servant must expressly and affirmatively be ordered to "omit the safe way and to perform the work in the unsafe manner". A mere order to perform the work in the unsafe manner is not sufficient, unless by force of the order, the safe way is withdrawn or, to put it differently to the same effect, made unavailable.
The case of Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850: The question was involved as to whether or not the deceased by his own negligence in exposing himself to a known danger had been guilty of such negligent conduct as to preclude liability against the defendant oil company, which had been guilty of negligence in causing the burning and exploding of oil tanks. The deceased, one Richmond, had been ordered by his company, the Standard Brands, Inc., to help in fighting the fire and the deceased had exposed himself to great danger therein and, as a result, was killed.
The court held that there was no liability against the Standard Brands, Inc., because of its order to the deceased to assist in putting out the fire. This conclusion was reached because of the fact that the employer gave no specific direction as to when, how, or where, he was to discharge the order, and the court held that this "cannot be construed to compel or authorize him to incur any great danger to himself."
This appeal is from a judgment based upon the verdict of a jury in favor of the defendant, S.M. Mohon, in a suit for damages for a personal injury sustained by the plaintiff, Willie Oakes. It is urged by the plaintiff that the trial court erred in its instructions to the jury to such an extent as to influence an erroneous verdict in favor of the defendant. It is unnecessary that we discuss any other alleged errors on this appeal.
The defendant was engaged in the business of servicing oil wells in the Tinsley oil field, and correcting any trouble that arose in the operation of such wells. He had in his employ a crew of five men to do this work. He had placed O.C. Bradley in charge of the crew with full authority to direct the manner and method of the performance of the work to be done, and the other members of the crew, including the plaintiff, Willie Oakes, and Joe Oakes, Joe Heathcock, and W.M. Ellsey were expected to obey the orders of the said Bradley as foreman, or vice principal of the defendant. The plaintiff, his said employer, and the foreman all so testified.
On the occasion complained of it appears that one of a group of metal rods, 7/8 of an inch in diameter and 25 feet in length, had become unscrewed or broken far beneath the earth's surface and it was the duty of Joe Oakes, Joe Heathcock, and the plaintiff, Willie Oakes, to screw on the disconnected rod if found on investigation by them to be unscrewed from the rod below, or to replace the same if broken.
It further appears from the testimony on behalf of the plaintiff that his brother, Joe Oakes, was making a test to ascertain whether the rod was unscrewed or broken. For this purpose he used what is called by the witnesses a "sub" or a 4-foot piece of a 7/8 inch pipe; that Joe Oakes came to the conclusion that it was a "screw-on job" and so announced this fact to his foreman Bradley; that thereupon Joe Heathcock went to the truck nearby to obtain the "spinning-wheel", a safety device made especially for fastening onto the top end of the rod, and to be turned by the men twisting the rod and screwing it onto the one from which it had been disconnected far beneath the earth; and that this spinning-wheel, the size of a wagon wheel, was found on the truck but Heathcock returned without it for the alleged reason that a small wedge which was indispensable to the use of the wheel was not found in the truck with the wheel, the same having been either misplaced or was in a steel box on the side of the truck at that time.
That thereupon Joe Oakes, who had hold of the 4-foot sub or pipe with one end resting against the bail of the elevator (which is not described in the testimony), and the other end against the rod which was to be turned and screwed back on, and who had been awaiting Heathcock's return with the spinning-wheel, was ordered by the foreman Bradley to go ahead with the work of turning the rod with the assistance of Heathcock so as to screw it back onto the one from which it had become disconnected, as they were "now rigged up"; that Heathcock then began to assist Joe Oakes in turning the rod in the ground by the use of this 4-foot sub or pipe, either by having the round edge of the 4-foot piece of pipe against the round edge of the rod, which extended down into the earth, or by having the end of this sub or pipe against the said rod, and when they had turned the rod a few rounds in attempting to screw it on, as they were ordered to do by the foreman, according to the implication of his command to go ahead as "you are now rigged up", the foreman ordered the plaintiff Willie Oakes, who was standing nearby, "to get a wrench and give them a hand", according to the testimony of Joe Oakes, and to "get a 24-inch Stillson wrench and give them a hand", according to the testimony of the plaintiff, Willie Oakes; that when the three men had thus turned the rod as far as it would go, or nearly as far as it would go, the 4-inch sub or pipe slipped off the rod and the rod began to revolve at rapid speed in reverse, on account of the friction or bind thereon which had been built up by the turning of the rod, and this caused all of the weight or pressure to be thrown on the Stillson wrench with which the plaintiff was holding the rod and helping to turn the same, and the wrench handle was thereby forced out of the hands of the plaintiff, while it revolved in the fashion of an airplane propeller, and it struck and broke the leg of the plaintiff above his knee, came loose from the rod, struck a piece of concrete, with such force and violence as to knock a piece of the concrete off, after having first knocked the plaintiff to the ground.
All of the testimony discloses that the placing of the 4-foot sub or pipe through the elevator and against the rod, which was being turned, was an unheard of performance, and that the attempt of the plaintiff to aid in turning the rod with a Stillson wrench under such circumstances was a dangerous mode and method of performing the work about which these three men were engaged.
The issue of fact in the case is whether or not the plaintiff was using the Stillson wrench to aid his two fellow-servants, under such circumstances, in compliance with an order from his foreman Bradley, or whether he had selected the 24-inch Stillson wrench of his own accord, without any previous command from his foreman to do so, in preference to selecting one of the chain tongs which were in the truck alongside this wrench, or the other Stillson wrench, which was 36 inches in length, since it was shown that a chain tong would ordinarily have been reasonably safe for his use in aiding his two fellow-servants in their efforts to screw on the rod.
The record is silent as to whether the use of the 36-inch Stillson wrench would have been safer than the use of the 24-inch Stillson wrench, but the proof on behalf of the defendant disclosed that there was in the truck, along with the other tools, what is called a "cheater" bar, which could have been fastened to the end of the Stillson wrench handle so as to give the plaintiff more leverage and enable him to make his strength more effective in helping to turn the rod and place him farther away from the rod that he was helping to turn. But it is to be noted that the order which the plaintiff and Joe Oakes claimed was given to the plaintiff by the foreman Bradley was not that he get a Stillson wrench and a cheater bar and help in the work, but that he get "a wrench" or a "Stillson wrench" and do so. However, be that as it may, the fact remains that according to the testimony on behalf of the plaintiff, the foreman who was standing by and observing the operation, knew that the two fellow-servants of the plaintiff had adopted an unusual and dangerous method of trying to turn the rod with the 4-inch sub or pipe, which all the proof shows was likely to slip off the rod that they were undertaking to turn, and that in such situation he ordered the plaintiff to get a wrench or a Stillson wrench and to help them to turn the rod.
Thus it will be seen that however negligent the act of the two fellow-servants may have been, it was being performed on their part under the orders of the foreman when he told them to go ahead with the work as you are now rigged up; and therefore the injury sustained by the plaintiff could not have been due solely to the negligence of these two fellow-servants, nor solely to the negligence of the plaintiff when acting under the order of the foreman, and especially so if the latter knew that his order was one that the plaintiff was likely to obey.
It should be further noted that the employer Mohon testified that the two safe methods for doing the work about which these servants were engaged was that they either use the spinning wheel or chain tongs, and it is shown that they had theretofore used the spinning wheel for such purpose. There was testimony that most of the major oil companies used the spinning-wheel as the safer method of the two, whereas there is other testimony to show that the chain tongs were most commonly used for the purpose. The servants, including the plaintiff, had ample experience in twisting these rods to screw them onto the rod far beneath the earth's surface, from which they had become disconnected, but there is no proof that the plaintiff had any previous experience in helping to twist the rod with a Stillson wrench or by means of chain tongs, where his fellow-servants were using, under the orders of the foreman, a 4-foot sub or pipe in the manner in which they were using the same on the occasion complained of.
Numerous experts testified for both the plaintiff and defendant as to what would constitute a reasonably safe method for doing this work, but none of them seem to have ever known of an instance where the 4-inch sub or pipe had been used by the follow-servants by pushing it through the elevator in the manner testified to, and where another servant was commanded to help them by either the use of chain tong or a wrench, since there is no dispute that the 4-foot sub or pipe was likely to slip off the pipe as it did do on the occasion in question.
Mr. Ellsey, who was on top of the oil well derrick, at the time of the accident, testified for the defendant that the plaintiff had applied the Stillson wrench to the rod and was trying to turn the same before his two fellow-servants adopted the dangerous method of inserting the 4-foot sub or pipe through the elevator and against the rod that was being turned; but even the foreman, who was within 6 or 8 feet of the other three members of the crew, gave a different version of the matter, and he did not dispute the fact that the other two servants were using the sub or pipe before the plaintiff got the wrench and undertook to help them. He did deny that he gave any orders at all to either the plaintiff or to his fellow-servants, but contended that all of them were free to and did select their tools with which to do the work.
Under the foregoing state of the case, the trial court gave to the defendant a number of instructions to the effect that even though the foreman Bradley ordered or directed the plaintiff and his other workmen to use unsafe or improper tools, the jury nevertheless must find for the defendant, if the jury also believed from the evidence that the members of the crew were experienced workmen who realized that using such tools would involve a clear and immediate risk, which it would be unreasonable to incur, even under orders, if the jury also believed that there were other tools available which would have been reasonably safe and proper to use in such work. In fact, one of the instructions for the defendant was to the effect that if the jury believed from the evidence that the plaintiff, or any fellow-workman who caused his injury, was a skilled workman and that defendant's foreman ordered him to use the tools which plaintiff claims were unsafe, and that at the time plaintiff, or such workman, realized that he was incurring a manifest danger that a reasonably prudent person would not incur, even under orders, in using said tools and that there were other tools available at the place of the work which he was privileged to choose and work with instead of the alleged unsafe tools as directed by the foreman, then that the proximate cause of the injury was plaintiff's or his fellow-workman's failure to use the proper tools so available, if any, and that the verdict should be for the defendant.
Without setting forth in full the five erroneous instructions complained of, we deem it sufficient to say that in our opinion they were not authorized under any of the following cases, to wit: Brown v. Coley, 168 Miss. 778, 152 So. 61; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792, 150 So. 810; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Martin v. Beck, 177 Miss. 303, 171 So. 14; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; J.J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571; Gow Co., Inc., v. Hunter, 175 Miss. 896, 168 So. 264; Odom et al. v. Walker, 193 Miss. 862, 11 So.2d 452; and Walley et al. v. Williams, 201 Miss. 84, 28 So.2d 579. (Hn 1) It is true that in the case of Brown v. Coley, supra [ 168 Mass. 778, 152 So. 63], the Court said: "If the master expressly and affirmatively order the servant to omit the safe method and to do the work in a dangerous way, he has waived, or rather has usurped, the duty otherwise resting on the servant and, to use a common term, he is estopped to assert that the duty to avoid the obvious danger was upon the servant, unless the danger is so imminent that no person of ordinary prudence should encounter it, even under orders." (Italics ours.) But in that case no negligent order of a foreman was involved and the use of the italicized part of the above quotation was not necessary to the decision. Moreover, the writer of the opinion in that case was evidently merely recognizing a general common law rule without addressing his attention in particular to Sections 1454 and 1456, Code 1942, limiting the effect of contributory negligence and abolishing the doctrine of assumption of risk, respectively, in this state. Anyway, the statement above italicized would in our opinion be applicable only to a situation where it would be wholly unreasonable to anticipate that the servant would likely act as an insane person, or as one wholly indifferent to the inevitable consequences, and obey the order in question. For instance, if a foreman should direct a servant to step or jump off a 20-foot scaffold for the purpose of going and bringing some tool needed on the job, the utterly foolish action of the servant in obeying such an order would be the sole proximate cause of the resulting injury or death, and there could be no recovery against the master for that reason. In the instant case it was not unreasonable or incomprehensible that the servant would undertake to obey the order without first weighing the chances of consequent injury under the existing circumstances.
In the other cases above cited, most all of which were rendered since the decision of Brown v. Coley, the Court either upheld verdicts against the master where the servant was injured in carrying out a negligent order of a foreman, or liability of the master was denied because the servant acted without an order from the foreman so to do. Without reviewing these in detail, we merely say that an examination of the facts set forth in the opinions therein will disclose that a recovery was allowed in many of them where the servant was more negligent in obeying the order of the foreman than was the plaintiff in the instant case; that is to say, where it could be said with as good or better reason that the danger was so imminent that no person of ordinary prudence should have encountered it, even under orders. In upholding liability, the Court merely applied the above-mentioned statutes and held that there was no assumption of risk where the master was negligent and that contributory negligence was not a bar to a recovery, such negligence only being for proper consideration in the mitigation of damages.
The author of the opinion in the case of Brown v. Coley, supra, upon which the instructions in question were based, later wrote the opinion in Walley v. Williams, supra, where the plaintiff used an openface bucket to refuel a tractor engine, which was being operated with a jump spark. Some gasoline spilled and was ignited by the jump spark and the plaintiff was injured. The Court there stated the condition upon which the plaintiff could recover by saying that [ 201 Miss. 84, 28 So.2d 581] "having admitted that he was using an open-face bucket to refuel his engine while it was in operation, he must prove that he was ordered by his foreman to do so in the manner that he did." In that case the danger was evidently "so imminent that no person of ordinary prudence should encounter it, even under orders", but the writer of the opinion there recognized that the doctrine of assumption of risk had been abolished and that the effect of contributory negligence had been limited in this state.
(Hn 2) As a general rule, by virtue of these statutes, when once negligence has been shown on the part of the master followed by injury to the servant, the only way the master can entirely escape liability is to show that his negligence was not a proximate cause of his injury, or, as expressed another way, that the servant's own negligence, or the negligence of a fellow-servant, was the sole proximate cause of the plaintiff's injury. However, in the instant case, as hereinbefore shown, the negligence of the two fellow-servants of the plaintiff was brought about by the direct order of the foreman, according to the testimony on behalf of the plaintiff.
(Hn 3) We are therefore of the opinion that all of the instructions complained of are erroneous. They eliminate entirely the question of whether or not the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and they are in our opinion otherwise incorrect in that they tend to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action.
Reversed and remanded.