85 So. 78 | Miss. | 1920
Lead Opinion
delivered the opinion of the court.
This is an appeal from a judgment for five thousand dollars recovered as damages for personal injuries received by the appellee while employed in appellant’s sawmill. The recovery is based upon two grounds, namely,
Situated in appellant’s sawmill is what is termed as. a “roller bed,” the purpose of which device is to transfer lumber from one part of the mill to another. The ‘ ‘ roller bed” consists of a table-like platform about forty feet in length, a few feet wide, and approximately thirty inches in height above the mill floor. At various intervals across the top of the “roller bed” are rollers, over which are propelled pieces of lumber traveling from the saws to the points at which the pieces are desired to be deposited in the mill. Some of the rollers are called “dead rollers.” They revolve only when the lumber resting upon them moves, and are designed to faciliate the movement of the lumber by curtailing friction. Other rollers of the “bed,” referred to- as “live rollers,” are revolved by power transmitted from the machinery of the mill. The “live rollers” perform the function of propelling the lumber along the “roller bed” to be dealt with at particular places as the circumstances require.
The power necessary to revolve the “live rollers” is transmitted to them from the engines of the plant by means of a horizontal transmission shaft, which runs along the length of the “roller 'bed,” slightly lower than its top surface. Gears upon this shaft mesh with gears
The movement of the “live rollers” was controlled by means of a lever operated by an employee in the mill (who in this case is alleged to have been incompetent); the employee being also under the duty of operating, a “jump saw,” located at a point about forty feet away from the point where the appellee was injured at the “rol1 er bed.’ ’ By manipulating the lever controlling the ££ live rollers” the operator could start, stop', or reverse the shaft and rollers,' The operator could stop the movement of the rollers and cogwheels with the lever and reverse the motion of the shaft and cogs very quicldy.
At one side of the “roller bed,” near the end, there stood an “edger,” or trimming machine, the platform of which adjoins the “roller bed” on that side. An endless chain, propelled by the same power that operated the “live rollers,” traverses the “roller bed” some little distance from the platform of the ‘ ‘ edger. ’ ’ The purpose of this chain was to transfer certain pieces of lumber that moved down the “ roller bed” to the platform of the “edger.” As a piece appropriate for the “edger” machine approached along the “ roller bed,” the operator of the “edger?’ presses his foot upon the spring that elevates the chain one and one-half inches above the “roller bed.” An employee in the mill (who was the appellee) was under the duty to stand near the £ £ roller bed, ’ ’ opposite the platform of the “edger,” and, as a piece to be transferred to the £ ‘ edger’ ’ platform passes, to catch one end of the piece and to throw or thrust this end of the piece from the £ ‘ roller bed’ ’ to the £ £ edger’ ’ platform, while the conveyor chain transfers the other end. It was while filling this position and performing his duty that the appellee received his injury.
The appellant lumber company knew that the employee Jones was deaf when it hired him to fill the position at the jump saw and to control the lever which started, stopped, and reversed the revolving shaft and cogs. The testimony of the witnesses, as well as the physical facts in evidence, shows that the master failed to furnish the appellee with a reasonably safe place in which to work, in this, that the revolving gears or cogwheels were uninclosed and exposed at the point of the “roller bed”' where the appellee was compelled to work and lean his body over in order to perform the duties of his employment. This was a dangerous situation in which to place the employee, and the master was chargeable with negligence, as decided by the jury. . .
No. 1: “The court instructs the jury for the plaintiff that it is immaterial, as a matter of law, how the plaintiff was dressed or who reversed the live roller lever, if you believe from the evidence in the case the defendant was guilty of any negligence as charged in the declaration which contributed in whole or in part to the plaintiff’s injury, if you believe from the' evidence in the case the plaintiff was injured, it is the sworn duty of the jury to find for the plaintiff and assess his damages, if any, at such sum as you may believe from the evidence in the case a reasonable compensation to him for the injuries sustained on account of such negligence, not to exceed the amount sued for.”
Instruction No. 4: “The court instructs the jury for the plaintiff that it was the duty of the defendant to furnish the plaintiff with reasonably competent and skilled fellow servants with whom to work, and if the jury believes from the evidence in the case the plaintiff’s fellow servant Ollie Jones, or ‘Dummy,’ operated the live roller lever, and was deaf so that he could not hear the plaintiff when he was caught in said cogwheels and called out to said Jones to stop- or reverse said rollers, if you believe the plaintiff was caught in said cogwheels and did call out to said Jones, and that the said Jones could not and did not hear plaintiff on account of deafness, and that the said Ollie Jones was not, on account of said deafness, a competent employee to do the particular work at which he was put by the defendant, that is, *to operate said live roller lever, and that the defendant knew or could have known of said
Complaint is made of instruction No. 1 because it tells the jury that if they believe the appellant “was guilty of any negligence, as charged in the declaration, which contributed in whole or in part to the plaintiff’s injury,” it should find for the plaintiff, whereas the second and third counts of the declaration were not proved and were abandoned by the plaintiff.
We agree with counsel for the appellant that the instruction is technically erroneous and should not have been given. Newman Lbr. Co. v. Dantzler, 107 Miss. 31, 64 So. 931. The error of the instruction was not cured by failure of the appellant to have the court instruct the jury to disregard the faulty count under section 777, Code of 1906 (section 560, Hemingway’s Code), because the statute has no application as to erroneous instructions granted by the court. •
But we thinlr the granting of the instruction was harmless error for several reasons. In the first place, it clearly appears that no testimony was offered to' the jury in support of counts 2 and 3 of the declaration. -Jurors are presumed to be men of ordinary intelligence, and we may safely assume that they did not consider or act upon counts 2 and 3' because they heard no proof supporting these counts. We think that it is reasonable to say that the jury was not misled or confused by this instruction. Bule 11 (72 So. vii). Furthermore, the real issues in the case, were presented by counts 1 and 4, and were covered by the instructions given, which, taken as a whole, limited the issues to counts 1 and 4, and the jury must have so understood it. We are further convinced in this regard when it is considered that
“The court instructs the jury that the law of Mississippi does not require the defendant to miake or keep the gears in question absolutely safe, or to guarantee the safety of its employees working near said gears, and that the defendant is not liable for accidents to employees that could not reasonably have been expected or anticipated; the defendant being given the right by the law to expect its employees to use the faculties with ■which nature has endowed them for their self-preservation. If the gears, considering their natural dangers alad the fact that employees could escape injury from them by the exercise of ordinary watchfulness and prudence, were reasonably safe, the jury should find its verdict for the defendant.”
It is urged by the appellant that instruction No. 4, granted the appellee, is erroneous because it was not negligence on the part of the appellant to employ a deaf man to control and operate the lever, since he was competent to perform that duty, and that appellant was not bound to employ a servant in anticipation of an injury to the appellee by the machinery controlled by the deaf servant. In other words, it is contended that the master could not reasonably anticipate that this deaf servant would ever be called upon to stop the machinery when a fellow servant might be caught in it; that the deaf servant employed was competent to perform the duties for which he was hired; and that his failure to respond to the call of the injured fellow servant when in peril could not be reasonably anticipated, and there fore his employment was not culpable negligence.
If the servant Jones in charge of the lever had not been incompetent on account of deafness, he could have heard the cry of appellee to stop the machinery and would have stopped it in time and prevented the injury when the appellee’s overalls only were engaged in the cogs and before the cogs had reached his flesh. It will be remembered that' another fellow servant, named Boothe, went a distance of forty feet to the appellee when he called, and attempted to pull him out of the machinery. At that time it appears .there was no serious injury do appellee, and Boothe went on forty feet farther to the lever, shoved the deaf m,an aside and reversed the machinery, stopping it quickly. So it is plain that no substantial injury would have occurred in this case had the- servant in charge of the lever been a competent man and responded to the call of the appellee when he first became in a perilous position.
The employment of this incompetent and unfit servant certainly increased the danger of injury further
In volume 3, section 1079, M'r. Labatt says:
“The obligations of a master to see that the servants hired by him possess the qualifications mental, moral, and physical, which will enable them to perform their duties without exposing’' themselves and their coernployoes to greater dangers than the work necessarily entails are, in their broad features, similar to the obligations which are incumbent upon him with regard to the other agencies of his business. . . . The hiring or retention of a servant whose unfitness for his duties, whether it arises from his want of skill, his physical and mental qualities, or his bad habits, is known, actually or constructively, to the master, is culpable negligence,- for which the master must respond in damages' to any other servants who may suffer injury through that unfitness.”
The position taken by the appellant that the work engaged in by the deaf employee imposed no duty upon him to hear and respond to the call of a fellow servant in peril, in our opinion, is not well taken in this case.
The duties of Jones, the deaf coemployee, required him to operate the "jump saw,” and also to manipulate the lever controlling the stopping and starting of the rollers and cogs on the "roller bed” at which appellee worked. It was his duty to stop- the revolving gearing and cogs when requested to do so by his coemployeo working in close proximity to him, in order to prevent the injury or stop its further progress.
In 18 It. C. L. section 204, p. 726, the rule is stated as follows:
"Incompetency consists in qualities and characteristics calculated to cause reasonable apprehension that the admission to the service or the retention therein of the incompetent will or may imperil the safety of other employees. ... It goes to reliability in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those who are required to associate with such person in the general employment. A competent man is a reliable man. ’ ’
The appellee had the right to assume that the fellow servant employed to work with him and about him and in control of the dangerous machinery would not be lack
Employees in control of dangerous machinery owe a duty to prevent injury of their fellow employees when their perilous position is known and they have opportunity to act; and the master is guilty of negligence in knowingly employing an incompetent and unfit servant who is unable to act when the perilous position would be known to a competent person. It would be an unreasonable rule that would permit the master to knowingly employ a blind or deaf person and put him in charge of dangerous machinery with which a fellow worker is working and is injured on account of the incompetency of the “dummy” in failing to prevent an injury when called upon to do so by his fellow employee in peril. ' ¡ , ! • j
In this case the deaf servant, Jones, was working but a few feet away from the appellee and was the only person in control of the lever, which, it is true, was not primarily designed as a safety device, but which should have been used to prevent the injury when it was known or should have been known by Jones if competent, and his failure to act was negligence chargeable to the master on account of his known unfitness to perform the duties for which he was employed, namely, to control and operate by starting and stopping, the revolving machinery which injured the appellee, and to operate a “jump saw” impelled by the same machinery, all in close proximity to the place where the appellee was injured.
The judgment of the lower court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting).
The alleged acts of negligence of the appellant on which the appellee claims to he entitled to recover are: First, leaving unguarded the cogs in which the appellee was caught and injured; and, second, employing an incompetent servant.
It appears from the evidence without conflict, that all of the cogs imder the bed of rollers were guarded except the particular one by which the appellee was caught and injured, but the evidence was in sharp, conflict as to whether or not these particular cogs were guarded; consequently that issue was necessarily submitted to”the jury. It also appears from the evidence, without conflict, that the rollers were for the purpose of conveying the lumber, one board at a time, from the circular saw to a point near the “edger,” and when it reached that point it was the duty of the appellee to assist in transferring the board from the rollers to the ‘ £ edger. ’ ’ This duty in no way required the stopping of the rollers, and in so far as the appellee was concerned their motion might have been continuous.
Between the circular saw and the edger there was a button saw for the purpose of cutting the ends of the boards in proper shape for the “edger.” This saw was operated by a man by the name of Jones, who was deaf. His duties required him to watch the boards as they came from the circular saw, and when any of them that needed trimming before being transferred to the£ £ edger’ ’ reached the button saw to stop the rollers, thereby stopping the board, elevate the button saw, and cause it to cut off the end of the board. "When this was done he would start the rollers again and the board would continue its journey to the “edger.” In order properly to discharge his duties it was necessary for him to face the circular saw and to keep his eyes on the approaching board, and in order so to do his back would necessarily be towards the “ edger.” The lever controlled by him
The appellee’s fourth instruction permitted the jury to find for him, although the cogs in which he was caught were guarded, if they believed from the evidence that Jones was “deaf so that he could not hear the plaintiff when he was caught in said cog-wheels and called out to said Jones to stop or reverse said rollers,” and “that the said Jones was not, on account of said deafness, a competent employee to do the particular work at which he was put by the defendant, that is, operate said live roller lever.” This instruction should not have been given, for, as hereinbefore set forth, Jones was thoroughly competent to run the button saw — the only duty he was employed to discharge — and) to operate the lever for that purpose, and the obligation of the master to his servants to employ only competent servants is limited to the employment of such as possess the qualifications necessary to enable them to perform their duties without exposing themselves and their fellow servants to greater dangers than the work necessarily entails. If the cogs were properly guarded, as this instruction assumes, then the appellant complied with its duty to the appellee in furnishing him a safe place to work, and it was not called on to provide for the stopping of the machinery in event he should be caught in the cogs without negligence on its part.