74 So. 284 | Miss. | 1917
delivered the opinion of the court.
This suit originated in and was tried in the circuit court of Tishomingo county. According to the testimony of witnesses for plaintiff, he was an employee of the defendant company and his duties were that of a block setter; and it was his duty, among other things, to oil the bit saw mandrel. In order to perform his duties, it was necessary for him to take a position between the top saw rig and the big saw. The rule was that plaintiff’s duties were to be performed at the noon hour, when the machinery was at rest. The regular custom was to put the machinery in motion at one o’clock. While the machinery was at rest, plaintiff’s place to work was a perfectly safe place, but after the machinery was- put in motion his place to work was a veritable death trap. In view of this fact, it was the custom to sound the whistle before the mill was started. On this occasion no whistle was sounded. While-the plaintiff was in an extremely perilous position, and' before the time to start the mill, and without giving the customary signal, the trap was sprung and plaintiff was injured; happily he was not killed. The court directed the jury to find for defendant.
It is earnestly argued by appellee that the company, a partnership, is not liable, because the proof showed that appellant was injured by the negligence of a. fellow servant.
It will be observed from the statement of facts that the defendant had adopted a system designed to safeguard the lives and limbs of its employees. Some such system was necessary in order that the employee injured in this case might have a safe place to work. It was, of course, the duty of the master to furnish a safe place to work, and this duty was nondelegable. This is elementary
It would seem absurd to say that the master might escape liability, under the facts of this case, by merely saying that he had performed his duty in this case by directing the employee to oil the mandrel while the mill was shut down at the noon hour, and while the death-dealing apparatus was quiescent; that the premature starting of the machinery was the negligent act of a fellow servant for which the master was not liable. An employer “is no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery than for injuries caused by a defect in the machinery itself,” or, in other words, that “a master is responsible, in point of law, not only for a defect on his part in providing for his failure to see that the apparatus was properly used.” Labatt’s Master & Servant (2 Ed.), section 1110. The quotation was taken by Mr. Labatt from an English case, and the principle is developed in the succeeding pages of his masterly work.
It is the universal law that a master must furnish his servants a safe place to workthat this duty is nondele-gable, and a servant does not assume the risk when he works in an unsafe place.
Eeturning now to the proven facts of the present case, it will be observed that the position of appellant when he was injured was only dangerous while the saws were revolving; and, when this was not the case, there was no need of any precautions for his safety. So he was not required to work in this place when the saws were in motion, but it was his job to oil the machinery while the mill was shut down. He was doing the work at the proper time and would have been entirely safe but for the foreman’s disregard of the time. The custom was to do this work at recess while everything was safe. The custom was to start the mill at one o’clock. The mill was started before one o’clock. It was the nondelegable duty of the
Many cases decided by this and other courts upon the established rule of the nonliability of the master for the negligence of a fellow servant of the complaining party are cited, none of which are, in our opinion, applicable to the facts of the present case.
There is also much discussion of the vice principal or superior servant doctrine but we do not think it is necessary to take either side of this controversy in the present case.
When it is kept in mind that the place where appellant was required to work was only safe while the machinery was not in motion, it will be perceived that appellee had not provided a safe place if he failed to adopt some system to insure that the machinery would not be started while appellant was at work. This failure of the system was the fault of the master, for the obvious reason that he could not hide behind the skirts of a fellow servant when it was his positive and nondelegable duty to keep the place safe, and see to it that his apparatus was properly used.
We think that the principie discussed is the principle which controlled this court in Oil Co. v. Ellis, 72 Miss. 191, 17 So. 214.
We have not discussed the fellow-servant rule, because we do not believe that this rule has any application to this case. There is no question about the fellow-servant doctrine in this state. It is in full flower, except in that class of cases which come within the exceptions prescribed by our Constitution or statutes.
Reversed and remanded.
