Hinton Bros. Lumber Co. v. Polk

| Miss. | Mar 15, 1918

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

(After stating the facts as above). The negligence with which appellant is charged is that it failed to furnish appellee .with a safe place in which to work, but it seems clear from the evidence that there is no sort of merit in this contention. Appellee’s injury resulted, not because he was furnished with an unsafe place in which to work, but for the reason that he placed himself in a dangerous position, not called for hy his work, in order to discharge a duty incumbent not upon him, hut upon a fellow employee. Moreover, the sheet iron was not intended to be used by appellant’s employees as a passageway across the lumber run, but, on the contrary, their duties required that they should keep off of it, so that it might serve the purpose for which it was intended; that is, to facilitate the passage of the lumber from the planing machines across the run. The ■peremptory instruction requested by appellant should have beeii given. Reversed, and judgment here for appellant.

Reversed.

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Dissenting Opinion

HoldeN, J.

(dissenting). I differ with the majority on the one decisive question in this case, and that is, whether or not the testimony shows that the .master failed to furnish the servant with a reasonably safe place in which to work, or whether or not the evidence was, at least, sufficient to justify the court- in submitting this question to the jury. The' appellee was injured while performing the duties of his employment. It is true .that, at the time he was injured, he was serving in the place of another employee who had stepped aside, but the record shows that it was his duty to do this, and was employed for that purpose. His employment required him to handle the lumber on the moving chains, so that it would not become blocked and impede or stop the operation of the planing machines and chains.- In order to do this it was necessary, and within the purpose of his employment, for him to walk across and over the chains and runway to straighten out the lumber which Lad become blocked on tbe opposite side. While doing this, on the occasion in question, he noticed that the lumber was becoming blocked on the chains on the other side from which he had come, and he started back across to straighten it out, and, while crossing over, inad'vertently stepped on the slippery sheet iron — which the testimony shows was as slippery as ice — and slipped and fell on the chains and was injured. That this slippery sheet iron was dangerous for a person to step ■on is conceded by the record. It is also true that if the sheet iron had been guarded it would have been useless .for the purpose it was placed upon the floor: But the record also shows that the foreman of the appellant testified, in effect, that it was unnecessary to have this .sheet iron on the floor at all, as the chains were “turtle hack” in shape, and the lumber would pass over them without the aid of the sheet iron. The sheet iron had been worn to its dangerous, slippery condition by many .years of use there on the floor; and its danger to employees working near and around it was known to the master.' It is very evident that an employee working near it, as the appellee was, in the course of his duties, would be liable, at an unguarded moment, when his mind was engaged with his work, or in a moment of forgetfulness of its presence, to step upon it, even though he knew it was there, and that it was a dangerous place on which to step. This being true, it appears to me that, at most, the appellee could be charged only with ■contributory negligence in this case, which, of course, is not a bar to recovery. With the assumption of risk doctrine out of it, and contributory negligence being no bar to recovery, the question of negligence of the .master, I think, was properly submitted to the jury by the lower court.

It is pertinent to inquire, What is a reasonably safe ■place in which to work? What is a reasonably safe place ■depends entirely upon the facts in each particular case, and is a question of fact that should he submitted to the decision of a jury, unless the court can safely say from the bench that the proof shows manifestly and conclusively that the place furnished by the master to the servant in which to work is, or is not, reasonably safe.

Under the facts and circumstances of this case, I think the circuit judge was eminently correct in submitting the question to the jury as to whether or not, taking into consideration all the conditions, circumstances, character, and nature of the work of the servant, and the nature and location of the dangerous instrumentality which caused the injury, the master was negligent in failing to furnish the servant a reasonably safe place in which to work. It seems to me that the jury, ■composed of laymen taken from all walks of life, and who are familiar with ordinary human affairs of everyday life, would be the proper judges as to whether, under the particular facts and circumstances of the case, the place furnished by the master in this case was a reasonably safe place for the servant to work in. To say the least of it, it was a close question on the facts, and the judge could not say, as a matter of law, that the master was'free of negligence.

When the opinion of the-majority and appellee’s testimony are read carefully and digested, it becomes obvious that the appellee is deprived of his recovery in this case merely because he was guilty of contributory negligence in stepping on the slippery sheet iron. This is wrong. The opinion is erroneous in two particulars (I quote), viz.:

“Appellee’s injury resulted not because he was furnished with an unsafe place in which to work, but for the reason that he placed himself in a dangerous position not called for by his work in order to discharge a 'duty incumbent not upon him, but upon a fellow employee. ’ ’

The' injury received by the appellee was certainly caused by the unsafe place in which he was required to work. If the dangerous, slippery sheet had not been on the floor at the place around and about which the appellee was required to work, the injury would not have occurred. And whether or not it was a reasonably safe place must be judged by all the facts and eiroflm-stánces, together with the nature of the work appellee-was required to do, and also the deceptive appearance of the slippery sheet iron and the location of it on the floor, at a place where he would be liable to step unon it in the hurry necessary in performing the work that he was required there to perform. For that reason it became a question of fact that was properly submitted to the jury to determine whether the place was reasonably safe in which to work. The statement in the opinion that “appellee placed himself in a dangerous position not called for by his work” is not borne out by this record. The testimony shows that he was relieving and doing the work of one of the absent employees when called upon by necessity to do so at the time he was injured, which it was his duty to do, and was customary for him to do. This employment necessitated his crossing over, near, and around this dangerous slippery sheet iron, which he might inadvertently step upon at an unguarded moment while in the discharge of his duties.

Of course, “the sheet iron was not intended to be-used by appellant’s employees as a passageway across the lumber run,” yet it was put upon the floor at a place where the appellee, in the course of his duties, in crossing from one side of the runway to the other, would be liable to step on it, in a moment of forgetfulness, or when his mind was engaged with his work and he had no time in which to think, or else be compelled to walk around and out of the way in order to properly perform his duties in preventing the lumber from becoming blocked; which duty, if he had failed to perform, would have caused his discharge, for the reason that his employment required him to act hastily and promptly when necessary in order to keep the runway chain going in the proper manner.

The location of the dangerous instrumentality here, and the character and nature of the service required of the appellee, has much to do with determining whether the place was reasonably safe. If I concede that the sheet iron was not in a defective condition, still I think that the place was not reasonably safe on account of the location of the sheet iron on the floor, at a place where the servant was required to work around and over it. A place in which a dozen circular saws are running might he a reasonably safe place for a servant to work in, if the saws • are reasonably and properly placed. But an unguarded running saw, slightly protruding in and above the floor, around and over which a servant would have to walk in performing the duties of his employment, might not be a reasonably safe place in which to -work, although it was necessary for the saw to be where it was, and it was not defective, and would be useless if guarded. Therefore a reasonably safe place to work in depends upon the facts showing the circumstances and conditions, character of the work, and nature of the duties required of the servant.

In this case the sheet iron was not slippery when it was first put down, but years of wear had made it as slick as ice. Its danger to persons stepping upon it was known to the master. It appears from the record that some of the employees working at similar machines, where sheet iron was placed upon the floor, wore rubber heels as a protection against slipping on these slick sheets. The employer here knew of this fact and understood that the kind of work required of appellee was the same as required of the other employees working at other machines under similar circumstances.. The master also knew that the servant was liable to step on the slippery sheet while doing the kind of work that he placed him there to do, as the sheet was lpcated at a place around and over which appellee had to perform his work. It was as dangerous to step on this slip.pery sheet iron as it would have been to have stepped into a hole in the floor located at the same place. And' certainly the appellee would not be denied recovery had his injury been received on account of stepping in a hole or trap at the place where this slippery sheet was located on the floor. In Thompson on Negligence,, vol. 4, section 3888, it is said:

“Duty of Master to Prevent or Guard Mantraps,. Trapdoors, and Other Hidden Dangers on Such Premises. — This duty of the master extends to preventing the premises ■ whereupon he% requires the servant to work,, from containing dangerous pitfalls, obstructions, or other mantraps, into which his servant is liable, un-guardedly, to fall while his mind is absorbed in the duties of his employment.”

When the facts of this case are carefully considered and the long-established rules of law with reference to the master furnishing the servant a reasonably safe place in which to work are applied, I have no serious doubt that the learned circuit judge was correct in submitting this case to the jury in the lower court. Prom the nature of the employment the appellee was compelled to work around and over a dangerous instrumentality, nearly in his pathway, and he was liable to step on it at an unguarded moment, while in the performance of the very duties of his employment, and thereby become injured. The jury, and not the court, were the sole judges of the facts, taking all the conditions, circumstances, and nature of employment into consideration, as to whether or not' the master here was guilty of negli--gence in failing to furnish the servant a reasonably safe place in which to perform his duties.

The appellee is an aged man with’ a family, and was-permanently injured. The recovery below is to be set aside and annulled and his action ended by the majority opinion of this court. I cannot concur in the view of the' majority, and as the principle of law involved is important for the future, and- as I do not think that, under the law, the appellee should be deprived of his recovery,. I have written rather at length.

Ethbidge, J., concurs in this dissenting opinion.