Opinion
No. 27846.
May 6, 1929.
1. MASTER AND SERVANT. Employee not under duty of inspecting machinery operated by him to see whether it is safe does not assume risk of master's negligence; employee not under duty of inspecting machinery operated by him does not assume risk of negligence of another employee, whose duty it is to inspect ( Hemingway's Code 1927, section 518).
Under chapter 156, Laws of 1914 (section 518, Hemingway's Code of 1927), an employee does not assume the risk of his employment, where the master is negligent and where the employee was not under duty to inspect the machinery operated by him to see whether it was in a safe condition, but was only charged with the duty of repairing such defects as developed in the operation thereof. He does not assume the risk of the negligence of another employee, whose duty it was to inspect the machinery and see that it was in a safe condition.
2. MASTER AND SERVANT. It is master's nondelegable duty to provide employees working around machinery with safe place or instrumentality.
It is the duty of the master to provide employees who work around machinery with a safe place, or a safe instrumentality, for doing this work. This is a nondelegable duty, and a master is guilty of negligence, where an employee engaged for that purpose by the master was negligent.
APPEAL from circuit court of Tunica county, HON.W.A. ALCORN, JR., Judge.
John W. Crisler, of Clarksdale, for appellant.
The record shows without dispute that it was the duty of the plaintiff to examine, inspect and repair this machinery. He cannot, therefore, recover for defects existing in it.
26 Cyc., page 1104.
If the machinery became unsafe, it must have done so in the progress of the work. This being true, the plaintiff cannot recover, according to the established rule in such cases.
26 Cyc., page 1097, par. B; Hope v. Railroad Company, 98 Miss. 822, 54 So. 369.
There must be proof of such a defect that the master should have known it by the exercise of reasonable and ordinary care.
4 Thompson on Negligence, sec. 3864; 2 Labatt on Master Servant, sec. 832, page 2293; Hope v. Railroad Company, 54 So. 369; A. V.R.R. Co. v. White, 106 Miss. 142; Mississippi Central R.R. Co. v. Bennett, 111 Miss. 163; 2 Labatt, Master and Servant, sec. 832, 20 A. E. Ency. Law, 86-92; 26 Cyc. 1410 to 1417, inclusive, and 1444 et seq.; 4 Thompson on Negligence, sec. 3864 et seq.; Y. M.V.R.R. Co. v. Downs, 109 Miss. 140, 67 So. 962; A. V.R.R. Co. v. White, 106 Miss. 141, 63 So. 345; Wabash Ry. Co. v. McDaniels, 107 U.S. 434, 2 Sup. Ct. 932, 27 L.Ed. 605.
In the case of Hope v. Railroad Co., 98 Miss. 822, 54 So. 369, it was decided that the master is responsible to the servant only for injuries received through his negligence, and the burden of proving such negligence is upon the servant, to the same extent that it is upon all other plaintiffs seeking to recover on the ground of negligence.
1 Labatt on Master and Servant, Employer's Liability, sec. 414.
Sec. 3801, Vol. 4, Thompson on Negligence, "Correlative Duty of Master and Servant with Respect to Knowing and Finding Out."
Section 4654, Vol. 4, Thompson on Negligence; Thompson v. Planters' Compress Co., 106 S.W. 470; Sheman Oil Mill v. Neff, 159 S.W. 141; Cisco Oil Mill v. Van Goem, 166 S.W. 439.
The evidence fails to show any defect in the machinery, but if we are wrong in this, it is unquestionably true that the master had no notice of the defect. Knowledge of the witness, Walter Williams, an employee, was not knowledge of the master. The plaintiff and Walter Williams were fellow-servants and being such, the negligence of Walter Williams, if any, was not attributable to the defendant company.
Lagrome v. R.R. Co., 67 Miss. 592; Railway Co. v. Petty, 67 Miss. 255.
J.D. Magruder, of Tunica, for appellee.
As to whether machinery is defective or not is a question for the jury.
A. V.R.R. Co. v. Groom, 52 So. 703.
The contention of counsel for appellee in this case is the doctrine of res ipsa loquitur applies.
53 A.L.R. 1486.
The defendant appellant has never met the prima-facie case made.
The duty of the master relative to furnishing a safe place to work cannot be delegated to fellow-servants, and the risk relative thereto is not such as ordinarily assumed by the servants.
A. V.R.R. Co. v. Grooms, supra, 97 Miss. 201, 52 So. 703; Y. M.V.R.R. Co. v. Smith, 117 So. 339, 150 Miss. 882.
Defendant says, "If the defect existed in the machinery, the plaintiff cannot complain as it was his duty to inspect the machinery and repair it." We say that the evidence is to the contrary.
Defendant says, "If the machinery was unsafe, it became unsafe in the progress of the work and the plaintiff cannot recover therefor."
To support this proposition counsel cites the case of Hope v. Railroad Company, 98 Miss. 822, 54 So. 369.
This case is not applicable to the case at bar for the reason that in the Hope case, supra, the court decided — "When a servant is injured by reason of a defect in a tool furnished by the master, it must be shown that the master had knowledge, actual or constructive, of such defective tool." In that case it was shown that the defendant had no knowledge, actual, or constructive, of the defect, but in the case at bar, it is shown conclusively, that the master, the Planters' Oil Mill, appellant, did have knowledge, because Walter Williams, servant of the master knew of the defect of the broken or "busted" washer, and of the stripped thread off of the bolt, which was the approximate cause of the accident, and the knowledge of the servant is the knowledge of the master.
Labatt's Master and Servant (2 Ed.), section 2229.
Where the gist of an action is negligence, the question whether the defendant has been negligent so as to subject him to liability, and whether the plaintiff has been negligent so as to exempt the defendant from liability is one of fact for the jury under the instructions of the court.
Memphis Charleston R.R. Co. v. Whitfield, 44 Miss. 466; Y. M.V.R.R. Co. v. Humphries, 83 Miss. 735, 36 So. 154.
Counsel for defendant, appellant, cites a great number of cases to establish the fact that the plaintiff appellee, assumed the risk and hazards of his position; none of these cases are from this state. In Mississippi, there is no assumption of risk in cases like the case at bar.
Section 504, Hemingway's Annotated Code of Mississippi 1917.
Abolishing doctrine of assumption of risks of employee when the master is negligent.
Edwards v. Haynes Walker Lumber Co., 74 So. 284; Labatt's Master Servant (2 Ed.), sec. 1110.
Our position further in this case is that it was the duty of the master to furnish a reasonably safe place in which the servant was employed to work and to maintain it in a safe condition.
26 Cyc., p. 1097; Finkbine Lbr. Co. v. Cunningham, 57 So. 916; 26 Cyc. 1529-1530-1531; A. V.R.R. Co. v. A.B. Lowe, 19 So. 96.
Counsel for appellant cites the following cases upon which he asks this court to reverse the case:
Hope v. Railroad Co., 98 Miss. 142; A. V.R.R. Co. v. White, 106 Miss. 142; Y. M.V.R.R. v. Downs, 67 So. 962; Miss. Central v. Bennett, 111 Miss. 163.
All of these cases follow the rule laid down in the case of Hope v. Railroad, supra, that it must be shown that the master had knowledge actual, or constructive of the defect complained of which caused the injury; which, if our theory of the case at bar is correct, has no application.
Counsel cites Hooks v. Mills, 57 So. 545; Lagrone v. Mobile Ohio R.R. Co., 7 So. 432; L., N.O. T. Railroad Co. v. Petty, 7 So. 351.
These cases raise the question of fellow-servant rule and I am sure the court will immediately observe the fact that they are railroad cases. The fellow-servant rule is not applicable in the case at bar. Edwards v. Hayes Walker Lumber Co., 74 So. 284.
Tom Wiley was employed by the Planters' Oil Mill in operating its linter gins, and was injured while engaged in his work by having his hand thrust against the saws by an involuntary movement while cleaning an adjustment rod, which accumulates cotton in the operation of the linter. The involuntary movement was caused by a noise made in the linter by the bursting of a washer, and the slipping of the nut on one of the rods, while he was cleaning the adjustment rod. This explosive noise caused him involuntarily to throw his hands up, striking the saw and injuring his hand, resulting in suffering and the loss of thirty days from work, pending the recovery of his hand.
It was the duty of another employee, one Walter Williams, to remove the saws when they needed filing, and to see to the oiling and changing of saws, and to keep the rods and nuts in condition. This necessitates an almost daily change of saws and adjustment of the nuts on the rods in order that they should not come loose from the vibrations of the machinery. The testimony shows that the threads which held the nut on the rod had become worn and loose, and also that a washer used on the rod under the nut had burst; that Williams had changed the saws the day of the injury and saw this burst washer, and knew of the defective condition of the threads on the rod, and that the nut, by reason thereof, might come loose in its operation. However, he did not tell Tom Wiley of this condition until after the injury; he said he forgot to tell anybody about it. It was the duty of Wiley to keep the linters operating, to remove the accumulated cotton from the adjustment rod, and to repair any defects which occur during the operation of the machinery. The appellant contends, this being true, that the negligence, if any, was Tom Wiley's, and that he could not recover for his own negligence.
We think the proof shows that it was not the duty of Tom Wiley to see that the machinery was in safe condition for operation before doing his work, but that he had a right to depend upon Walter Williams, whose duty it was to keep the machinery in repair and to inspect it, and that Wiley's duty was only to repair when, in the course of operation, repair became necessary.
By chapter 156, Laws of 1914 (section 518, Hemingway's Code of 1927), it is provided: "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."
It was the duty of the master to provide the plaintiff with a safe place to work; and this is a nondelegable duty. The master, therefore, was under duty to see that the machinery was in safe and fit condition for use; and as it was defective for the reason above stated, without fault of the plaintiff, the latter was entitled to recover, and had not assumed the risk involved in the negligence mentioned.
We think the proof was sufficient to sustain the verdict of the jury. Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Yazoo M.V.R. Co. v. Smith, 150 Miss. 882, 117 So. 339.
We find no reversible error in the cause, and the judgment is affirmed.
Affirmed.