51 So. 2d 482 | Miss. | 1951
Appellant, as plaintiff, brought suit in the county court against appellee, as defendant, for the recovery of damages on account of personal injuries sustained by him while employed by defendant as a truck driver. The case was tried by a jury which returned a verdict in plaintiff’s favor for $1,000. Defendant appealed to the circuit court which reversed the judgment of the county court and entered a judgment for defendant, and from that action the plaintiff appeals here.
The evidence shows that plaintiff had had fourteen years experience as a truck driver but was not a mechanic. He had worked for defendant about nine months but had driven the truck in question only about one month. It was a White truck-tractor with a large trailer van attached. Shortly before the accident in question plaintiff drove this truck and trailer to New Orleans. He had trouble with the steering gear while in New Orleans and had temporary repairs made on it so as to permit him to drive back to Jackson. He thereupon reported to defendant that something was wrong with the steering on the truck and defendant directed him to take it to Motors,
The drag link is a heavy iron bar about two feet in length. Near each end there is a socket. Into the socket on one end of the drag link there is inserted a ball at the lower end of the rod which runs from the steering wheel down through the steering column; into the socket at the other end of the drag link there is inserted a ball which is at the end of the horizontal rod which runs practically parallel with the front axle and connects to the wheel spindle; by means of this drag link the connection is completed between the steering wheel and the front wheels of the truck. Naturally these balls and sockets, because of the friction from continued use, will wear and become loose and unless they are tightened the ball will eventually pull or fall from the- socket, thereby breaking the connection between the steering wheel and the front wheels of the truck, and if this happens the driver can no longer guide the truck. For
The special circuit judge who passed on the appeal from the county court filed a written opinion giving his reasons for reversing the judgment and said that the defendant exercised reasonable care in sending the truck to the White agency for repairs and that the record' does not show by any substantial evidence or reasonable inferences therefrom that defendant was guilty of any negligence which caused or contributed to plaintiff’s injury. In this we think he was in error. The master could not relieve himself of liability to the servant by delegating to Motors, Incorporated, the dealer in White trucks, the duty of using reasonable care to put the truck in question in a reasonably safe state of
In Texas Co. v. Mills, 171 Miss. 231, 246, 156 So. 866, 870, this Court said: ‘‘The master’s duty to furnish his servants with safe instrumentalities with which to do their work is not a contractual, but a common-law, duty, which the master cannot delegate to another. The one exception, if exception it be, to this rule, is that a servant injured by a defect in an instrumentality which he himself had contracted to furnish, or which he himself had contracted to keep in repair, relieves the master of any duty to him relative thereto. ’ ’ (Citing many authorities.)
In Masonite Corp. v. Lochridge, 163 Miss. 364, 377, 140 So. 223, 225, 141 So. 758, it is said: “We have not come across a more correct and clearer statement of the non-delegable duties of a master than that contained in 39 C. J. pp. 285, 286, Sec. 412, which is in this language: ‘Certain primary or absolute duties are imposed by law upon the master, such as the provision of a safe place to work, the furnishing of safe and suitable appliances and instrumentalities for work, the employment of a sufficient number of servants, the selection of competent servants, and the establishment of proper rules and methods of work. The performance of such primary or absolute duties cannot be so delegated by the master as to relieve him from liability for the consequences of a failure to discharge them, but the negligence with regard thereto of one to whom their performance is intrusted by the master is regarded as that of the master for which
In Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 465, 153 So. 376, 380, this Court said: “The liability of the power company springs from the humane principle of law that a master may not delegate his duty to use reasonable care to furnish his servants a safe place in which to work (and not from the doctrine of respondeat superior), and, if he does so delegate it, he may not escape liability therefor.” Dozens of other Mississippi cases support these same principles, and the rule seems to be firmly established in the jurisprudence of every jurisdiction in this country. In 56 C. J. S., Master and Servant, Sec. 204, pp. 909-910, it is said: “The duty to furnish safe tools, machinery, appliances, and places for work is a positive, affirmative duty resting on the master, and cannot be delegated to another, or, rather, cannot be delegated to another so as to relieve the master of his primary liability, and the agency or person to whom the duty is attempted to be delegated is immaterial. This is true no matter how carefully the person or agency to whom the duty is attempted to be delegated is selected or how competent or reputable he or it may be.” The foregoing authorities are a complete answer to appellee’s contention that he fulfilled the duty which he owed to appellant.
Appellee next contends that he had no notice of the defective condition of the steering apparatus which caused this accident. Even in his own testimony appellee did not deny that appellant told him upon his return from the trip to New Orleans that there was something wrong with the steering of the truck, and that thereupon appellee directed appellant to carry the truck to Motors, Incorporated, to have the trouble repaired. This is undisputed. Under the law appellee is charged not only with actual notice of whatever defects the mechanic of Motors, Incorporated, actually discovered, but also with constructive notice of any defect which that mechanic
Appellee’s third and last contention is that the plaintiff and defendant both knowingly violated the criminal laws of this state, — the plaintiff by knowingly operating this truck, and the defendant by knowingly permitting it to be operated, upon the public highways of this state in a dangerous and unsafe condition. Ap-pellee’s position in this respect is inconsistent with and directly in conflict with his previous contention that he had no notice, either actual or constructive, of the truck’s defective condition. Nevertheless he advances the argument that plaintiff and defendant were in pari delicto and relies upon Downing v. City of Jackson, 199 Miss. 464, 24 So. (2d) 661; that case, however, has no earthly
The judgment of the circuit court is accordingly reversed and judgment will he here entered reinstating the judgment of the county court in plaintiff’s favor.
Reversed and judgment here.