Opinion
No. 34079.
March 4, 1940. Suggestion of Error Overruled April 1, 1940.
1. MASTER AND SERVANT.
If cut-off ends of boards were allowed to pile up until saw came in contact with them, there was "dangerous place in which to work," as respects master's liability for injuries.
2. MASTER AND SERVANT.
The nondelegable duty rests on master to make reasonable effort to provide a reasonably safe place for his employees to work.
3. TRIAL.
In action against master for injuries to employee operating planer near cut-off saw when saw struck one of accumulated board ends, instruction that unless employee was guilty of negligence in matter of removing accumulation of sawed-off ends, jury should return verdict for employee, was not erroneous as constituting peremptory instruction on point in dispute.
4. MASTER AND SERVANT.
Employee operating planer near cut-off saw, who was injured when saw struck one of accumulated sawed-off board ends, would be entitled to recover from employer if it was not employee's duty to remove accumulation of sawed-off ends under his employment, and he was not negligent for such reason.
5. MASTER AND SERVANT.
In action against employer for injury to employee operating planer near cut-off saw, when saw struck one of accumulated sawed-off board ends, whether it was employee's duty to make place safe or whether it was duty of another employee, acting for master in such regard, to require him to keep place safe, was for jury under conflicting evidence.
6. MASTER AND SERVANT.
If employee operating planer near cut-off saw, who was injured when saw struck one of accumulated board ends, was charged with duty of removing accumulated ends, and was instructed to perform it, he could not recover because of his injuries resulting from his own negligence, or where right of recovery had to be traced to master through employee, to make place reasonably safe, or to use reasonable effort to achieve such end.
7. DAMAGES.
$1,500 for injuries to planer operator when cut-off saw hurled one of accumulated sawed-off board ends against his knee was not excessive under evidence showing permanent injury and much suffering therefrom.
APPEAL from the circuit court of Newton county; HON. PERCY M. LEE, Judge.
C.E. Johnson, of Union, and D.M. Anderson, of Newton, for appellant.
Our first contention is that the trial court fell into error in giving at the request of appellee the instruction found at the top of page 195 of the record in the following words: "The court instructs the jury to find for the plaintiff unless they believe from the evidence that plaintiff was charged by Minton Wade to keep the blocks and cut off pieces cleared away from under the trimer."
This instruction is virtually a peremptory instruction to find for the plaintiff on the main issue before the court for trial.
The giving of this instruction violated the rule against singling out and giving undue prominence to particular witnesses and to particular parts of a case to the exclusion of other parts.
64 C.J., Sec. 601; 14 R.C.L., Sec. 48; N.O., etc., R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478; Curley v. Tucker, 170 Miss. 565, 155 So. 189; Hook v. Ellis, 101 Miss. 91, 57 So. 545; Mohead v. Gilmer Gro. Co., 153 Miss. 467, 121 So. 143; Miss. Cent. R.R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617,
In the case at bar the trial court told the jury in effect that if they found that Minton Wade had not charged the plaintiff with the duty of keeping the blocks and cut off pieces cleared away from under the trimer, they must find for the plaintiff to the exclusion of the consideration of any other evidence in the case.
The court below gave inconsistent, contradictory, and conflicting instructions. On this point we would call the court's attention to instruction No. 2 in the order appearing in the record, at the top of page 197 of the record: "The court further instructs the jury for the defendants that unless the plaintiff, Floyd Addy, has shown negligence on the part of defendants by a preponderance of the evidence, and that such negligence was the proximate cause of Floyd Addy's injury, it will be the sworn duty of the jury to find for the defendants."
We respectfully submit to the court that there is no way of reconciling the above instruction, which is a proper instruction, with the instruction already set out at length in this brief. There is an irreconcilable inconsistency, contradiction and conflict when we read them together. In the one negligence must be found by the jury before verdict can be returned against the defendants, in the other there may be a verdict against the defendants without regard to the question of negligence at all. In one of them the court placed the burden of proving negligence, and the injury complained of, upon the plaintiff and told the jury that they could not find a verdict for the plaintiff unless so proven; while in the other the court told the jury that they might find a verdict for the plaintiff on an issue to be decided having no reference to the negligence of the defendants.
Solomon v. City Compress Co., 69 Miss. 319, 10 So. 446, 70 Miss. 412, 12 So. 339; C. G.R.R. Co. v. Phillips, 160 Miss. 390, 133 So. 123; Jefcoats v. Standard Life Ins. Co., 143 So. 842, 164 Miss. 659; Hines v. Lockhart, 105 So. 449; Y. M.V.R.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Kansas City R.R. Co. v. Lilly, 8 So. 644; Herndon v. Henderson, 41 Miss. 584; Jackson v. Leggett, 189 So. 180. The court below erred in refusing instructions requested by the defendants.
Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; New Orleans, etc., R.R. Co. v. Williams, 96 Miss. 373, 53 So. 619; Inter. Ship Building Co. v. Carter, 121 Miss. 103, 83 So. 413.
H.R. Stone, Sr., of Decatur, for appellee.
It is the primary, absolute, non-delegable, common-law duty of the master to exercise reasonable care to provide a reasonably safe place for the servant to perform his work.
Masonite Corp. v. Lochridge, 163 Miss. 364; 39 C.J. 285, 286, Sec. 412; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378; Benton v. Finkbine Lbr. Co., 118 Miss. 558.
Neither in injury cases nor in death cases does the servant assume the risks arising from the negligence of the master.
The only risks assumed by the servant, in such cases, are the risks remaining after the master has made a reasonable effort to make the place in which the servant is required to do his work reasonably safe.
Powder Co. v. Tyrone, 155 Miss. 75; Crosby Lbr. Co. v. Durham, 179 So. 285; Texas Co. v. Mills, 171 Miss. 237; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 86; Standard Oil Co. v. Franks, 167 Miss. 285; Murray v. Drug Co., 100 Miss. 266; Masonite Corp. v. Lochridge, 163 Miss. 374.
In cases where the servant is charged by the master, under his employment, with the duty of keeping the place where work for the master is to be done reasonably safe; and in cases where the servant is charged by the master, under his employment, with the duty of keeping the instrumentalities with which the master's work is to be done, in reasonably safe condition, if the servant is injured because of his failure to discharge such duty thus imposed upon him by the master, he cannot recover because his injury is the sole result of his own negligence.
Texas Co. v. Mills, 171 Miss. 237; Water Foulke Lbr. Co. v. Myles, 135 Miss. 146; Hegwood v. Newman Lbr. Co., 132 Miss. 487; Edward Hines Lbr. Co. v. Dickenson, 155 Miss. 674.
Argued orally by D.M. Anderson, for appellant, and by H.R. Stone, Sr., for appellee.
The Wade-Stevens Lumber Company, engaged in the business of manufacturing lumber, operated in connection therewith a cut-off saw and planer. The length of lumber would be placed on the conveyor, to be sawed into the required lengths, the sawed-off ends dropping to the floor, making it necessary to remove the accumulation from time to time. Floyd Addy was operating the planer, near the cut-off saw; and when the saw struck one of the accumulated ends, it was hurled against the appellee's knee, inflicting the injury which is the basis of this suit for damages. The dispute in regard to the facts of the case turned on whether or not it was the duty of Floyd Addy to remove these sawed-off ends of lumber to make a safe place in which to work; or whether it was the duty of the operator of the cut-off saw to remove them. Also, whether or not Floyd Addy was to control the man operating the saw.
Addy testified that he was never assigned any duty to control the man operating the cut-off saw, and was not told to remove the accumulation of cut-off ends resulting from operation of the saw. The local manager of the plant testified that this duty was assigned to Addy by instructions given him; and that he was in control of the operator of the cut-off saw. An employee of the company who had operated the planer, and whose place was taken by Addy on the occasion in question, testified that if any instructions were given as to who should keep the cut-off debris from accumulating he knew nothing of it — that he did not instruct Addy that he was under such duty.
It is unnecessary to state the pleadings upon this proposition, as they adequately present the issue of fact for the consideration of the jury. It is manifest that if these cut-off ends of boards were allowed to pile up until the saw came in contact with them, this constituted a dangerous place in which to work. It is indisputable that the nondelegable duty rests upon the master to make reasonable effort to provide a reasonably safe place for his employees to work.
The question was submitted to the jury; and among other instructions given the jury was one requested by the plaintiff, that unless the plaintiff was guilty of negligence in the matter of removing the accumulation of sawed-off ends, the jury should return a verdict for him. It is contended that this constituted, in effect, a peremptory instruction upon the piont in dispute. We do not think so. There was a conflict in the testimony as to whose duty it was to attend to this matter; and if it was not Addy's duty to remove the accumulation, under his employment, and he was not negligent for this reason, he would then be entitled to recover for his injury. We think this question was properly submitted to the jury on the simple issue as to whether or not it was Addy's duty to make the place safe, or whether it was the duty of another employe, acting for the master in that regard, to require him to keep the place safe. If Addy was charged with this duty, was instructed to perform it, he could not, of course, recover because of his injuries resulting from his own negligence; or where the right of recovery had to be traced to the master through Addy, to make the place reasonably safe, or to use reasonable effort to achieve that end.
The question in dispute was one for the jury as to liability, and we think the jury were properly instructed in that regard. There was a verdict for $1,500, which on motion for a new trial was alleged to be excessive; the motion was overruled; and it is here claimed that the verdict was excessive.
The testimony of the plaintiff, and of his wife, if true, showed permanent injury, and much suffering therefrom, which is corroborated to a certain extent by the physician who treated Addy. If he suffered to the extent claimed, and if his injury interfered with his working, as he testified, the verdict would not be excessive. We think this is also a question for the jury, on the evidence, and that there is no reversible error on that point.
It follows that the judgment must be affirmed.
Affirmed.