C. & R. Lumber Co. v. Crane

99 So. 753 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellee was employed by the appellant as a rider, whose duty it was to carry a cable from the skidder used by the appellant to a log in the woods, to which the skidder cable would be attached for the purpose of drawing the log back to the skidder to be loaded upon cars. The cable was carried by a horse being hitched to it and ridden by the rider rapidly to the log and to the skidder, operated by a man in charge of the cable, and unwound as the rider moved towards the log.

It was the duty of the appellee also to follow the log when attached to the cable back to the skidder, and to free the log from stumps and trees when it became fastened, by hitching the horse thereto and using horse power for the purpose of freeing said logs.

The appellee was plaintiff below, and alleged that these logs traveled very fast, which made it necessary to ride the horse fast to keep up with it, and in order to reach the logs with the end of the cable in the woods it was necessary to go through the woods where the logs had been cut, which made the work very dangerous if the way was not well looked out through which to carry the cable; that the plaintiff was ordered by the foreman of the defendant to ride as fast as necessary to keep up with the log coming into the skidder and to go in a lope on the horse back through the woods; that it was the duty of the foreman of the said defendant under whom the plaintiff was working to select the ways for plaintiff to carry the chain or cable as aforesaid, plaintiff not having time to do this. He further alleges that he was directed by the said foreman on the occasion when the injury occurred, where there was a tree top which had fallen on a stump and broke it off and made it impossible for the plaintiff to go straight to the said log. But he was instructed by the said foreman to make a detour around said tree top and stump, and the said foreman directed plaintiff to go just around the stump and tree top, knowing, or by the exercise of reasonable care could have known, that this was an unsafe way to go, because the foreman knew, or by the exercise of reasonable care could have known, that the passageway through which the plaintiff was directed to go was too narrow, and was obstructed by limbs, and that there was a limb protruding from another log in the opposite direction from the said tree top and in a short distance of the said stump, and there was no room for the plaintiff to pass through between the stump and log safely with the said horse, but the plaintiff, not knowing of the limb protruding, started to go through the said place as directed, thinking that he had a clear way, and was riding the horse fast as he was directed by the said foreman of the said defendant to do, and, while so working as stated, his foot was entanged and his ankle broken, through the negligence of the said foreman in giving the defendant orders to go through an unsafe place, or ordering him into an unsafe place, when he knew, or by the exercise of reasonable care could have known, the place was unsafe, and brought suit for three thousand dollars.

Plaintiff’s testimony was to the effect that he was employed by the foreman of the defendant as stated in his declaration, and that it was the foreman’s business to look out a way for him to go, and that the foreman did so on this occasion; that he had to move rapidly and was ordered to move rapidly by the foreman in performing said work. The. proof by the plaintiff shows that the skidder had two drums upon which the cables were wound, one on either side of the track of the logging route upon which the skidder was placed and operated, that the foreman directed the work, and that the plaintiff did the work set out, and that there was a man at the logs who fastened the cable pr chain to the logs, and when this was done the log was drawn rapidly by the drum of the skidder winding up the cable.

It is insisted by the appellant that the doctrine of an unsafe place to work has no application here, and that it was the duty of the plaintiff to select his own way, and it was not the duty of the defendant to make the place safe, or to keep it safe for the work, because the work changed as it progressed, and relies upon the case of Cybur Lumber Co. v. Erkhart, 118 Miss. 401, 79 So. 235.

We do not think that the above case applies here under the facts testified to by the plaintiff. According to the plaintiff’s testimony it was the duty of the foreman of the defendant who had control and direction over the work of the plaintiff, to select a way for him and that he had done so and directed him specifically to go by the place where the injury occurred. It appears from this testimony that it is necessary for the work of this rider to be done rapidly in order to properly dispatch the work of the master. In the Cybur Lumber Co. Case, supra, the court pointed out that the case there decided was different from the case where the servant was directed into a dangerous place. In the present case, if the testimony of the plaintiff be true, and the jury’s verdict found it to be true, then the master assumed the duty of selecting the way and must exercise reasonable caution to select and prepare a safe way. It is true that the witnesses for the defendant contradict the plaintiff’s testimony as to this, and testify that the plaintiff’s duty was himself to select a way, and that the foreman had no duty with reference thereto. This, however, presented a conflict of facts for the consideration of the jury.

It is also insisted that the court erred in granting instruction No. 1 for the appellee, which reads as follows:

“The court instructs the jury for the plaintiff that, if you believe from a preponderance of the evidence in this case that defendant’s foreman negligently and carelessly directed plaintiff to ride the horse that was drawing the cable over a route that was not reasonably safe, and in a manner not reasonably safe, and that plaintiff was injured while riding said horse in obedience to such orders, if any, because of the unsafe condition of the route and manner in which plaintiff was riding, if any, then it is your sworn duty to find for the plaintiff.”

It is contended by the appellant that it was error to charge the jury in reference to the riding of the horse in a manner not reasonably safe. We think the charge has reference to the safety of the place with reference to the manner in which the plaintiff was required to ride; that is, he was required to ride at a rapid rate, and if the place was unsafe by reason of this requirement it would be unsafe, even though it might have been .safe for the plaintiff to ride through at a leisurely gait, with ample time to observe and guide the movements of the horse. We do not think it reversible error to give this instruction, and, when all the instructions are construed together, the court gave the law fairly applicable to the case, and that the defendant was not entitled to a peremptory instruction in this case.

It follows that the judgment must be affirmed.

Affirmed.