Opinion
No. 39046.
January 11, 1954.
1. Master and servant — whether unsafe automobile furnished by master — proximately caused injury — jury question.
In employee's action against employer for personal injuries suffered in wreck of automobile furnished by employer and driven by coemployee whether unsafe condition of automobile proximately caused or contributed to wreck, occurring when automobile drove off bridge after meeting truck which failed to dim lights, was for jury.
2. Master and servant — duty of master — to furnish reasonably safe automobile — for transportation of employees.
Employer should use reasonable care to provide a reasonably safe automobile for transportation of employees.
3. Master and servant — duty of master — to furnish reasonably safe instrumentality — nondelegable — fellow-servant rule inapplicable.
The duty of employer to furnish a reasonably safe instrumentality is nondelegable, and hence fellow-servant rule has no application thereto.
4. Master and servant — negligence of master — fellow-servant rule — when applicable.
In order to relieve master from liability for injury to servant, fellow-servant's negligence must have been sole cause of injury and not combined with negligence of master or his representative.
5. Master and servant — negligence — conflicts in coemployee's statements — for jury.
In such action, any conflict between employee's statements as to cause of accident raised a jury question, and did not preclude recovery.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Yalobusha County; CURTIS M. SWANGO, J.
Kermit R. Cofer, John P. Horan, Water Valley, for appellant.
I. The proof made by appellee shows conclusively that the appellee and R.D. McGregor, the driver of the automobile in which appellee was riding at the time he sustained the injuries complained of, were both working for the appellant in the same crew, and were being transported by a motor vehicle furnished by appellant. In such case the driver is a fellow servant; and the master is not liable to his employee for the negligence of his fellow servant. Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279; Charles Weaver Co. v. Harding, 182 Miss. 345, 180 So. 825.
II. The evidence shows conclusively that there was no causal connection between the condition of the automobile and the accident. The proximate cause of the accident was either through the negligence of the driver of the automobile in which appellee was riding with his fellow servant, or the negligence of the driver of the other motor vehicle, and not as a result of any defect in the automobile furnished by appellant. In such case, the appellant is not liable. Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Wilson Co., Inc., v. Holmes, 180 Miss. 361, 177 So. 24.
III. The appellee was asleep in the rear seat of the automobile at the time of the accident, and the driver of the automobile in which appellee was riding testified that the automobile was in good shape and ran good; and that the blinding of him by the lights from the other motor vehicle was the cause of the wreck. In such case, the appellant is not liable for damages caused by another motor vehicle. Charles Weaver Co. v. Harding, supra.
IV. There was no evidence in the record on the trial of this case that, in any manner, connected the defective condition of the automobile furnished by appellant, with the accident and personal injuries complained of. In such case, it was error to instruct the jury with reference to the unsafe and defective condition of the automobile. Ozen v. Sperier, supra; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; Weaver Co. v. Harding, supra; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.
V. There was no evidence to sustain the verdict of the jury in favor of appellee, and the verdict of the jury awarding appellee damages was clearly against the overwhelming weight of evidence. In such case, the appellant was entitled to a new trial, and the Court erred in refusing to set aside and vacate the verdict of the jury and grant the appellant a new trial. Flournoy v. Brown, 200 Miss. 171, 26 So.2d 351; Jones v. Carter, 195 Miss. 182, 13 So.2d 623; Meridian v. Akin, 133 Miss. 505, 10 So.2d 194; Montgomery Ward, Inc., v. Windham, 195 Miss. 848, 16 So.2d 622; White v. McCoy (Miss.), 7 So.2d 886.
Murray L. Williams, Water Valley, for appellee.
I. Fellow servant rule has no application. Adams v. Hicks, 181 Miss. 165, 178 So. 484; Albert v. Doulutt, 180 Miss. 626, 178 So. 312; Curry Turner Construction Co. v. Bryan, 184 Miss. 44, 185 So. 256; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Edmon v. Kochtitzky, 211 Miss. 201, 51 So.2d 482; Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Gulf M. N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 141 So. 758; Oakes v. Mohon, 208 Miss. 478, 44 So.2d 551; Scott Burr Stores v. Morrow, 182 Miss. 743, 180 So. 741.
II. The trial court did not err in refusing appellant's request for a peremptory instruction. Grenada Dam Constructors v. Patterson (Miss.), 48 So.2d 480; Luckett v. Louisiana Oil Corp., 171 Miss. 570, 158 So. 199; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.
III. There is no error in instructions.
IV. The verdict of jury is not against the weight of the evidence.
This was a suit in the circuit court by Dudley Thomas against James F. Thompson to recover damages for personal injuries proximately resulting from the wreck of an automobile. He obtained a verdict for $3,000; and from the judgment entered thereon, Thompson appealed.
Thomas worked on a commission basis for Thompson, who operated a photograph studio business in the Town of Water Valley. R.D. McGregor and Price Rushing, with Thomas as leader, composed a crew which solicited orders for pictures. Thompson furnished the automobile, a 1949 model Ford, which was used for transportation. On October 10, 1952, the men were returning from Lambert to Water Valley. Thomas was on the back seat, sick, and for that reason, McGregor was driving. As the automobile, at a speed of about 25 miles an hour, approached a bridge, it was meeting a truck from the opposite direction. When the truck did not dim its lights, but came onto the bridge, which was about 18 feet wide, McGregor pulled to the right, applied the brakes, and ran off the road and into the creek below. When he applied the brakes the car "jerked me off the bridge." Later, on cross-examination, when he was testifying about the failure of the truck to dim its lights, and when he was asked if that was the cause of the wreck, he answered that it was.
The plaintiff's case, insofar as the manner in which the wreck occurred, rested solely on the evidence of McGregor, as Thomas was asleep at the time, and Price Rushing did not testify. The injuries consisted of three broken ribs, a fractured jaw, several lacerations, and numerous bruises. The hospital and medical expenses amounted to about $200.
Two witnesses for the defendant, in a car behind the truck, saw the lights of the automobile disappear, made an investigation, and found the wrecked car and the men in the creek; but they, of course, could not say definitely whether the automobile merely ran off the road, or whether its defective condition caused it to do so, when the brakes were applied.
The proof by the plaintiff himself and several other witnesses showed that the automobile had been driven over 100,000 miles and was in a bad state of repair; that the front part was out of line, and it pulled to the right; that Thomas complained to the defendant after both his first and second weeks' work about the unsafe condition of the automobile; that defendant then took it to be repaired, in the meantime providing Thomas with another; and the next week, assured him that it had been fixed. While some repairs had been made, no work was done on the front end, the part complained about. This was confirmed by the mechanic. On the contrary, the automobile continued to pull to the right. The testimony of the defendant himself was in substantial conflict with the evidence for the plaintiff as to the condition of the automobile.
Consequently, an issue was made for the jury's determination, namely, whether or not at the time of the wreck, the automobile was in a dangerous condition, and whether or not the defendant knew, or ought to have known, that it was in such condition.
(Hn 1) The testimony of McGregor made an issue for the jury as to whether or not the unsafe condition of the automobile proximately caused or contributed to the wreck. (Hn 2) Since Thompson furnished the automobile in question, he was under the duty to use reasonable care to provide a reasonably safe one. Curry and Turner Construction Company, Inc. v. Bryan, 184 Miss. 44, 185 So. 256, and authorities there cited. Texas Company v. Jackson, 174 Miss. 737, 165 So. 546, is quite analogous. See also Texas Company v. Mills, 171 Miss. 231, 156 So. 866.
But appellant contends that the wreck was due (1) to the negligence of McGregor, a fellow servant of Thomas, or (2) to the negligence of the driver of the truck in failing to dim his lights and in driving onto the bridge, or (3) a combination of both (1) and (2), and (4) that the condition of the automobile was not the proximate cause.
(Hn 3) Where the duty to use reasonable care to furnish a reasonably safe instrumentality applies, the fellow servant rule has no application, because such duty is non-delegable. G.M. N.R.R. Co. v. Brown, 143 Miss. 890, 108 So. 503, 504. In other words, (Hn 4) "If the negligence of the master * * * mingles with that one who stood in the relation of a fellow servant to the servant receiving the injury; and if the negligence of the master, * * * was a proximate or efficient cause of the injury — the master will be liable and will not be allowed to escape liability on the ground that the injury also proceeded from the negligence of one for whose conduct he was not answerable. A different statement of the doctrine is to say that, in order to relieve the master from liability for an injury to one of his servants the negligence of a fellow servant must have been the sole cause of the injury, and not commingled or combined with the negligence of the master or his representative." Thompson on Negligence, paragraphs 4856, 4863. Scott-Burr Stores Corp. v. Morrow, 182 Miss. 743, 180 So. 741; Adams v. Hicks, 178 So. 484; Ross v. Louisville N.R.R. Co., 178 Miss. 69, 172 So. 752; Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 141 So. 758.
(Hn 5) The import of McGregor's testimony was that the truck did not dim its lights and was approaching in the center of the bridge. In such circumstances, he purposed to stop, and, for that purpose, applied his brakes. "That is when it jerked me off the bridge." In other words, the condition of the car caused the wreck. Even though he later said that the failure of the oncoming truck to dim its lights was the cause of the wreck, that statement was at variance with his previous explanation of the cause thereof, and was largely a conclusion. However, even if these statements are conflicting, they still were for the jury's determination. F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447.
The defendant obtained an instruction to the effect that if the blinding lights of the truck were the sole cause of the wreck, and not the condition of the automobile, the jury should find for him. From the verdict, it appears that the jury declined to attribute the cause of the wreck to the negligence of the driver of the truck.
The instructions laid down the legal principles which were applicable to the case. Plaintiff's criticized instruction number two was not erroneous. The verdict was not contrary to the weight of the evidence.
Consequently, it follows that this cause should be, and is, affirmed.
Affirmed.
Roberds, P.J., and Kyle, Holmes and Ethridge, JJ., concur.