No. 20844 | Miss. | Oct 15, 1919
delivered the opinion of the court.
Not being up in nautical terms and having never seen the hold of a ship, the writer avails himself of the brief of counsel for a statement of the facts, which statement has been verified from the record:
“In January, 1918,' appellant was operating a shipbuilding plant in Jackson county, Miss., and there had in progress of construction several large wooden seagoing vessels. In the partially built hull of one of these vessels appellee was employed by appellant to work in the construction ás a member of a crew of laborers aiding the regular ship carpenters. The crew of which appellee was a member was under the general supervision and command of a foreman, who deputized one of the creiv as straw boss, or leader, when he was temporarily absent from the personal supervision attending to other duties.
“The work of the crew of laborers shifted from one part of the large structure to the other as the varying exigencies of construction arose. The natural hazards of the work greAv out of the work’s progress, and changed and shifted with its progress. Nothing was unusual or wrong about the work, or in the system, method, or rules under Avhich it was being performed.
“On the date in question, the work required that a piece of timber aboiit one foot square, and approximately forty feet long, be conveyed from near the after part of the hull under construction and placed with other similar pieces on the right-hand side of the keel near the bow. The piece was successfully rolled upon a device commonly known as a ‘dolly,’ opposite the point at which it Avas to be deposited with the other piece upon the floor of the ship. Appellee, was a member of the crew of some eight or ten other men performing the work. (Several cant hooks, or peevies, were being used by the men.to'roll the piece on the ‘dolly,’*112 and then adjust it properly with the other pieces upon the floor of the ship. Mr. Baxter, the crew leader, himself a laborer, and a member of the crew, directed the men to perform this particular work.
“The proper method for the men to perform the work, and 'the method then adopted by them, was to stand all on one side of the timber and roll it from them. The points of the peeves are imbedded in the piece, and with the leverage thus afforded the workmen heave upwards on the handle, giving the piece a tendency to roll from them. When the point of balance is passed, the piece rolls over, and the peevy points naturally withdraw themselves. When the center of gravity, or point of balance, is passed by the timber, the men have no control over it, the peevy points withdrawing themselves, and the timber falling forward, .regardless of the number or condition of the peevies being used. Should the peevies fail to hold before the point of balance is reached, the piece will roll backwards, on the ‘dolly,’ and towards the men. After the point of balance is passed no number of peevies can prevent the forward roll of the timber, as the points, as they are meant to do, naturally loosen themselves.
“As the men were performing the work, appellee, for some reason, went in front of the piece on the ‘dolly,’ .standing opposite the place where the piece was to be deposited. All the other men remained in their proper positions behind the piece, to roll it from them. Appellee. said that some one — he was totally unable to say who, there being eight or ten men present — suggested that he go in front of the piece to adjust another piece. No other witness heard that. While appellee was in front of the piece on the ‘dolly,’ the rest of the crew remaining on'the other and proper side of the piece, the piece either fell off, or was rolled off, the ‘dolly,’ ■striking the appellee’s foot, and inflicting upon bim the injuries complained of by him in this cause.
*113 “The witnesses to the occurrence gave varying accounts of the occurrence. Appellee himself had no idea why the piece rolled; he merely heard some one shout “Look out” before he was struck. Baxter, the crew leader, said that the piece fell off the ‘dolly,’ but was utterly unable to say why it fell’ or why appellee went in front of it. Joe Bosarg, witness for appellee, said that there was plenty of men at work, with adequate peevies, and that appellee pried the piece off the ‘dolly’ onto his foot, and that some of the crew ‘reniged.’ None of the witnesses for appellee knew why the piece fell or rolled towards appellee.”
A number of instructions were given for both the plaintiff and defendant. Instruction No. 1, given by the court at the request of plaintiff, is in these words:
“The court instructs the jury, for the plaintiff, that the International Shipbuilding Company owed plaintiff and his coemployees the duty to furnish them a reasonably safe place within which to work, and if the jury believes from the evidence that defendant failed to furnish such reasonably safe place within which the plaintiff might perform the work assigned to him, and the jury further believe that as the proximate result or consequence of such negligence, if any, in so failing to furnish a reasonably safe place in which to work, the jury should find for the plaintiff.”
Appellant insists that the giving of this instruction, under the facts of this case, was error. We think that the rule which requires the master to furnish a safe place to work does not apply to cases where the prosecution of the work itself makes the place and creates the danger. The prosecution of the work in the instant case necessarily changed the place to work as the work progressed, and these changes often increased the hazard. The supreme court of Washington, in Miller v. Moran Bros., 39 Wash. 631" court="Wash." date_filed="1905-09-01" href="https://app.midpage.ai/document/miller-v-moran-bros-4726760?utm_source=webapp" opinion_id="4726760">39 Wash. 631, 81 Pac. 1089, 1 L. R. A.
“The very nature of the work of building a ship necessitates constant changes. A place perfectly safe one minute may become extremely dangerous the next by the ordinary and necessary operation of the work, and without fault on the part of any one. A servant working in the capacity of this appellant knows all this, and must be held to be, to a certain extent, his own inspector. He cannot complain because the master, with less opportunity than he [to avoid the accident], has failed ... to detect or anticipate an unexpected occurrence.”
This court recognized this rule in Railroad Co. v. Williams, 96 Miss. 373" court="Miss." date_filed="1909-10-15" href="https://app.midpage.ai/document/new-orleans--northeastern-railroad-v-williams-7990541?utm_source=webapp" opinion_id="7990541">96 Miss. 373, 53 So. 619" court="Miss." date_filed="1910-10-15" href="https://app.midpage.ai/document/nelson-v-illinois-central-railroad-7990777?utm_source=webapp" opinion_id="7990777">53 So. 619. Instruction No. 1 was fatal error and the judgment is reversed.
Reversed and remanded.