*1 v. Lancaster. Lancaster 3, 1952. Mar. 302) (57 (2d)
No. 38191 *2 Company. appellant Stevens Michael & Cannada, for & appellant Eager Tubb, Watkins Bob and T. J. for & Lancaster. Cunningham,
Cunningham appellee. & for Alexander, J. injuries judgment personal appeal
This is an a from by appellee. are follows: suffered The essential facts Company, to as J. referred B. Michael hereafter Inc., & Highway being Michael, under contract with State public highway in Commission to a link of construct watering County, Monroe the contract for sublet sodding placed upon the shoulders of appellee, employed son, Lancaster who Bob perform the use work. undertaken Such sprinkling consisting tank of a a water machine specially designed truck whence mounted motor through gasoline pumped the water motor sprinkler that an efficient with a head. It is asserted hose operated operation *3 near the that it be of device paved highway margin so as the the driver’s left of adjacent thoroughly upon spread water the shoulder. gear proceeded and in an extra low To this end the truck speed. operation at manner at a was the retarded Such injury. undertaking While the time of conformity requirements night alleged with the demonstrating Highway plaintiff Commission, State using proper the hose. manner of to fellow worker by slowly being eastward a third driven The truck was employee. Majors, upon party, the link had
A third Mrs. entered proceeding turned a barricade, after east to road, and retracing proceeded her course. She west about approaching by Upon accompanied her husband. was watering headlights, equipped with two truck, which was along top lights clearance cab, driver’s a row of Majors lighted along lights flares, Mrs. its sides and two by driving- pass truck on the north side undertook turned, Plaintiff his back the shoulder. had over onto pump prevented his the motors and the noise created Majors had hearing approach. that she Mrs. testified traveling twenty slowed hour but at about miles an "Wit- by”. down to the truck. about fifteen she reached miles as appellee nesses for car ££zoomed stated undertaking pass While so the truck her car struck employee, knocking Archie him a considerable Lancaster, inflicting distance down the embankment serious crippling injuries. appellee At the moment as stated was, showing Appel- helper sprinkler. above, how to use the Majors striking approaching. lee did not see the car After (cid:127) appellee being brought stop, the car to a traveled, before variously up a distance estimated to 145 feet. brought against Majors,
Suit was Mr. and Mrs. Michael Majors. and Lancaster. Nonsuit was taken as to Mr. Majors judgment There awas verdict and in favor Mrs. against Appeal Michael and Bob Lancaster. is taken by the cross-appeal last two defendants. There is no acquitting Majors the verdict Mrs. not here involved. considering Before the case merits its assigned we involving alleged must notice an error liability coverage. disclosure of During insurance a cross- plaintiff by examination of the brother of the counsel for Majors, following colloquy Mrs. ensued: you say you thing “Q. And the first knew about the car was your when the car came the water truck and your truck, struck thirty brother and then went a hundred feet down the going shoulder? A. The first I saw it was my to hit brother. past you
<£Q. And it ran 145 feet down there?' A. That’s what I said. you
“Q1. When did measure that? A. I didn’t mea- sure it. *4 ££Q.You weren’t interested in how went, far the car
you your were interested in brother. A. but next Yes, day Company the Insurance measured—
££Q. Who measured it? A. I don’t know. just guessing
££Q. You were then? A. No, wasn’t guessing, neighborhood well it was in the to feet. yourself night You it that or
“Q. didn’t measure day? they next it. A. there when measured I was adjustors. Who Insurance “Q measured it? A. I recall. “Q: Who was he? A. don’t measuring? doing “Q. What was he out there object Eager: “Mr. to that. We “The Court: Sustained.” assignment tending support
The considerations include the fact that there were three defendants who n adversary parties; intimation each were other that the liability poisonous toas the existence of insurance is impartial regardless an otherwise mind of whether such coverage suggestion may arise; a fact or how the exists as emphasized by repetition. and that the disclosure was by On the hand, other it is contended that the statement voluntary responsive in- witness was and not quiry; that was elicited defendant who was engaged appellants; in a common defensive cause with that it would allow a defendant, be unreasonable to or inject prejudice whereby plain- one several, such may contributing without tiff’s case be undermined fault; objection that and motion for mistrial were not promptly conveyed that, even if the statement made; company that an insurance idea was it is interested, coverage protected any par- not to be assumed such ticular defendant.
There are several considerations which rendered this testimony By calling upon hazardous. witness repeat identity party measuring distances, of the emphasis supplied there the initial volun- tary lacking. jury, acquitting statement was defendant whose counsel elicited the could well answers, encourage have considered that she would not thus ver- against dict her and there remained a intima- subtle protected. reasoning tion that she was not so is the Such appellants respon- whose onto shoulders entire sibility allegedly jury, shifted, since the for reasons
541 acquitted act caused their whose own, the defendant plaintiff grievous injury. by brought plaintiff’s coun- Such references when out invariably impos- ground It sel are is almost for reversal. assign catalog sible and each all similar references uniformly may pack- category. a definite The rule not aged general any designated Each for label. use under presents problem. case facts own Both the its analysis unique. repeated are of the factors After situa- presented tion that here we have concluded this error Gary, Compare 210 Miss. reversible. Petermann v. (2d) 438, 49 828. son,
Point is made this action against Archie Lancaster, minor, cannot be maintained Appellants George, his father. cite 68 Hewlett v. recognizes L.R.A. 682. This case incapacity integ rule of rity of the based maintenance peace family relationship, of the but concedes emancipation full undermines the rule where such reason therefor fails. In the instant case the son twenty age years age days and became ten ofter his injury. apart He was married and lived from father. At expected, the time of the accident a child was was born thereafter. Under these there circumstances, complete emancipation was a action was there fore maintainable. is immaterial that his father gratuitously assumed a substantial amount of medical hospital expenses. point The authorities on this are appellee. Compare Deposit set out in brief for also Guar anty Bank & Trust Co., Gdn. Nelson, Miss., 54 So. (2d) 476. liability
We now examine the of Michael, presented by which issue the refusal of the trial court grant requested peremptory instruction its favor. This High- defendant was under contract with the State n way Commission construct link of in Mon County. completed roe This work had except for watering sodding upon the shoulders em- Lan- to Bob Michael
bankment. work was This sublet completion necessity caster. In view of the signs adequate warning placed detail, such Michael had proper and at other link road the entrance onto this *6 points indicating under construc- still that the road was sup- danger It was its use. tion and that there was required posedly through left to be but traffic, closed to open to local traffic. regardless pointed that,
At out the outset it any adequacy warning signs, absence or insuffi- the of ciency causally plain- wholly the to unrelated thereof was Majors' signs injury. was had seen tiff’s Mrs completely defect There was no aware the situation. respect alleged the work Michael or to shown Although upon complaint of the sub- do. to promised traffic,” take care of Michael had “to contractor necessity promise relevant more to reveal some such charge duty al- a to forbid it therefor than it with to open keep together in the face of his contract to road duty far as its to con- to local traffic. So as least there is no evi- such is concerned struct causally contributing any thereof to dence of breach injury. appellee’s theory only plausible under which Michael’s con-
The open there left as a factual issue is that could be duct protect independ- duty of the to the servants remained against It unreasonable risks. retained ent contractor whereby over the means and methods Bob no control prosecute his work. Indeed the was to subcon- Lancaster supervise that Michael did not or control tractor testified using he his own boss his own methods. him and that was that this case does not involve an in- to be stressed exceptions jury person. The the com- caused to third independent plete responsibility an contractor find no injury by was suffered servant here since independent It has often been contractor. announced inherently dangerous, the even if the work is con- injuries remain liable caused not tracted does
543 independent by negligence contractor the a third servant of person is not latter, of the and that snch servant relationship. covering Humble the doctrine this nnder (2d) App., Refining 180 Bell, & Civ. S.W. Oil 970; Co. Tex. Refining 181 & 142 Tex. Bell Humble Co., Oil Paper (2d) Board Le v. Acme 569; Co., S.W. Vonas (2d)A 600. Servant, § Md. C. Master 43; J.S., pronounce principle IVe do ling as control- not, however, inherently we here since find that the work dangerous. nonliability We base our conclusion any, respect dangers exposures, of Michael in if or independent under the sole control The contractor. injury any legal duty was caused no failure of owed plaintiff. peremptory Michael re- instruction quested by ought given. Michael to have been question
We are left then with the whether issue of part independent on the Bob contractor, ought jury. Lancaster, to have been submitted Re- *7 ferring again injury to the fact that the was caused the by person, servant a third we the consult authorities deal- ing with this situation. highway by was used motorists and fact is such by testimony
borne out the and accentuated the con- complaints regard tractor’s follows: thereto. He testified as you you jobs they “Q. Now, said had been on where go through allow traffic to while the workmen were work- you ing, coming have known a lot of serious trouble from you? that haven’t too, A. I think so, would I have. you happening “Q. Haven’t of noticed lot accidents coming through? where traffic A. Sure. experienced awfully
“Q. dangerous As man it isn’t coming through unregulated to have traffic where there working (Objection are men as a conclusion. Overruled — Court.) the “Q. You knoAv, you, don’t Avhere they alloAvtraffic to come through such traffic as Avas coming through this it road, your hasn’t been experience that contractors have through coming had where traffic accidents trouble working? A. are Yes. where men very common, it? A. It’s “Q. That’s isn’t common, yes.” the continued: later examination was
And ‘‘ coming you traffic there constant Q. But do know was yes. through? I there, A. At the times was pretty speed? of them “Q. lots A. And Some speedy.” adopted the method
The record shows high- watering left side truck travel its edge way reach so the north concrete as to near Majors sprinkler was hose. As Mrs. sod with returning on its noticed the truck. was westward she during right-hand left side but over to its side crossed period approach. reached the truck her AVhenshe lane was left side of the on its traveling. under The circumstances was she already injury been mentioned. have which the occurred wrong nothing mechanically with the truck. There was Majors lights Although Mrs. testified yet flickering, “jumping” or she saw truck were explaining collision, her truck undertook avoid maneuver as follows: ‘‘ you you got stop your ? car before to the truck Q. Did get way. trying I out of the car’s Ño, A. ‘‘ AYhy you stop ? Q. clidn’t object. Eager: AYe “Mr. “The Overruled.
Court: I want to hit and I to the’ AYell, didn’t took “A. taught right I which I far as could had ’’ way a car. to drive *8 lights Majors upon concerned, Mrs. far as So question function. The whether had served their truck electing reasonably right upon to her to drive she acted pass stop rather than to or to the shoulder by upon has resolved verdict her left side had jury evidently that she decided in her favor. inquiry is reasonably. of our The crux acted reasonably the method of it foreseeable whether was by exposed an adopted his servant the contractor injury by persons. third unreasonable risk duty general principles governing a must master’s may passed be confined be over that the issue so might foreseeability injury reasonable that some particular under these conditions. caused employer An take account the reason- is bound to into injury may probability em- able be caused to the ployee person. survey a to such third "Werestrict our cases. Refining
In Gulf
Ferrell,
Co. v.
stant motorists, had been cast *9 546 gravel This adjoining highway. the surface of the
upon motor- menace to to constitute a if not removed was held thus car, placed thereon, of whom one skidded ists, then engaged ran into a station control, out of employee third an The the person automobile. act of servicing an intervening have been independent was held to the is- jury upon the case was cause and submitted foreseeable as whether some was injury reasonably sue to remain consequence of permitting gravel probable opinion in the was United Nov- the Cited upon highway. where an 395, 42 em- Daniels, v. So. (2d) Co. elty Miss., a coin-operated was the assigned cleaning ployee duty rat, therefrom, A gasoline. dislodged machine which open ignited under an burner refuge gas sought fumes contained the coat of the rodent gasoline an explosion ran to the machine and caused again fumes. The the whether some upon such case turned issue have from the harm foreseen meth- might reasonably of the work. While even the od circumstances designate devotees of would be reluctant analogy rodent asa“ at least a person”, third it was flaming living from the itself. wholly operation distinct So agency also in 81 152, Coast 120 Miss. So. Ship Yeager, 797, Co. at was third was injury by caused who person time an Yet the plaintiff placed same had been employee. where injury another was person be reasonably to foreseen.
More is Russell 168 point Williams, 372. Here was employee placed running board of defendant’s truck and when run a third person. into It was injured held to a factual issue for the jury whether employer have foreseen that the driver would without left signalling expose turn and thus employee necessary was not that it danger. find rea- that a person third cause anticipation sonable would here injury. point that, controlling included in negligence of prevision scope are of reasonable intervening another even an cause. challenge mea- implied to what
We not meet an need adopted com- full have been to constitute sures should duty pliance to furnish reasonable care with a use *10 reasonably place appellee and methods a for, safe Certainly danger, doing for there was work. of, injury, there was his of
Moreover, the contractor disclosed awareness impose danger. enough This, such of is not to course, liability. jury legal duty There must be violated. The found that the contractor -not care had used reasonable protect employee. make his Was authorized to finding? such problem
In the solution we into must take ac presented Majors by count the dilemma to Mrs. the course pursued by the contractor. The water truck had shifted right by from its side its left. She confronted necessity electing whether to her use left lane in defi by training ance compelled of an instinct inculcated ordinary proce law in cases, or to risk unusual right entirely high dure of to her extreme off the way. As stated, she must have been found to have acted unreasonably by jury perhaps which uncon sciously reasoning Priestley Hays, utilized the v.
Miss. emergency 843, 112 788, So. wherein was held to justify a technical violation of the rules of the road. surety, protection
Of a absolute could have been fur- although degree beyond any nished, such of care legal duty appellee. inquire owed is not us to warnings safeguards, any, what or if the contractor employed, could or safety should have or whether further impose measures or other methods would an unreasonable example, may jury burden. For have found no rea- why watering son the hose of the tank could not have placed right on its side or reasonably that other safeguards available could have been used. Rogers, 169 650, 152
In & Miss. McLemore McArthur requiring put a con at a work servant was 883, 884, engaged, servant another stant attention while so negligently former. We stated: caused wet concrete to [*] “ [*] * where fall into the the master eyes places his ex a character of and in servant at against poses which the servant hazards the servant protect himself and at cannot the use due care, reason then take his the master must work, same time do guards, if either able warn the or to erect care to servant practicable, master if and, not, of these are work as to ob must so control the method of order and danger, reasonably practicable.” viate the so far as 695, 157 In Alabama & V. R. Graham, Co. plaintiff’s when an auto- killed decedent was riding through guard rails he ran mobile which was ground wife. fell below. The driver was and The ‘‘They opinion, stated in the are as follows: facts, as traversing bridge were Highway United which carried States *11 appellants, and as 80 over track the
No. the of driving slope, approach of was down the eastern or she pro- bridge, coupe up the ceeding she came behind a Chevrolet direction; in the to the left for same she turned purpose coupe, passing the she so, of this as she did and, approaching then an from the east. saw automobile She attempted coupe, cut the so, to back as she did and, behind coupe, that the left of the with the she struck side result her sedan or thrown the left or skidded was to extreme angle bridge north the into side of and was headed an guard guard wheel rail. north and The sedan per- guard balancing the wheel after for a and, mounted ceptible edge bridge, dropped time of on the to ground 22 feet.” below, about bridge overpass guard
It or was shown and its plans rails were constructed in accordance with the and specifications Department. Highway of the State The dec- part upon negligent laration was based in failure to guard Despite adequate maintain rails. guilty of finding was that the driver an and instruction negligence negligence, the railroad of issue of jury, such properly submitted held have expectation light adjudged in the be n safety sufficiency and traffic the reasonable they regardless were of guard fact that of the rails, accepted was not control- an ling construction. standard of negligent injury a result of
that the came about as though an unusual another, act of even followed complex combination of circumstances. Supreme Corp. v. Lehr,
As said Instruments “Requisite So.(2d) :245 627, 199 294, 1 always degree care care remains commensurate ordinary danger appraised appreciable with prudence in terms of interpreted light in the of the attendant Application principle circumstances. leads give play varying results which place, time, to such factors as purpose. Although expression flexibility permits basis the rule remain fixed, its ac particular commodation to each The area case. of factual juries doubt within which allowed to function is circumscribed within a circle of which care the axis and reasonableness the radius. "Within this area reason adjudged by ableness to be and their reasonable men, right duty to differ is commensurate with their to consult. Beyond this limit lies the field of substantive Here law. are found those issues as which reasonable men should disagreement. not be in It is here that 'the court is not upon called way to decide the issue of fact one or other, but it is called to decido whether there is an ’ ’’ go issue of fact jury. under the law to Plaintiff opera- stated that when both motors were in tion, case here, he could not hear, and from his *12 position approaching he see, could not car. say flatly
For us to that the master had used all guard reasonable against means the servant dangers, foreseeable jury’s would result in an exercise of liability function. The of Michael has been found “beyond jury to lie the limit” be- of tbe circle debate by disclosing duty plaintiff in tbe cir- cause, no owed liability its cumstances, lies in “tbe field substantive regards liability law”. is not tbe Such case as tbe say judicially authority subcontractor. We have no the subcontractor had used reasonable measures under which the work could have been conducted safety. peremp- reasonable It was not error to refuse the tory charge in his favor. assignments giving
The other are directed to the refusing’ of certain instructions. have examined each We carefully, together they presented and when taken controlling issues without reversible error. instruc- given Majors questions tions on behalf of Mrs. raise acquittal. which are now moot view of her It was charge guilty not error negli- to refuse a that she was gence negligence, injury and that, if, but for such not have occurred, would the verdict should be for other defendants. judgment
For the considerations discussed, the must be Company, reversed judg- J. B. Michael & Inc., ment will be entered behalf. its It is affirmed as to the liability judgment against the eodefendant Bob Lancaster. judgment
Reversed and here as to B. J. Michael Co.,& Inc., and affirmed as to Bob Lancaster. Kyle Ethridge,
Roberds, Lee, JJ., concur. (Dissenting.) Hall, J. respectfully I part controlling dissent from that
opinion jury this case which holds that there awas is- question sue on the appellant, whether the Bob Lancaster, guilty negligence proximately contributed appellee’s injury. My record aas member of this Court will show that I am a princi- strict adherent to the ple negligence that all jury issues of are for the to deter- but where nothing mine, no is shown there *13 legion where jury upon. are pass The cases left for a to isit view precedent this for as held, this has but Court so part con- any the unnecessary go that further than to law trolling a matter of opinion which holds herein principal part the the that there was on no holding. that with I in accord Michael. am full contractor not are many in the record here There are facts are feel controlling opinion which I and in mentioned the picture necessary full the in to be out order set ap- may was new road The stretch of case be seen. this eight length. had proximately in The surface miles Michael, completed. Employees contractor, of the up daytime finishing engaged work this were in the in ap- patching portion paved had defects and in the where permit required by peared. to Michael his contract was keep powerless all local traffic on and was he road traffic off the He was to maintain barri- road. warning signs fully complied this cades he utterly requirement every impossible respect. in It was any person for without to drive vehicle road onto going completely driving around the onto barricades por- entering paved the shoulder of the road in it. The watering tion was in truck, to 23 feet width. The operated slightly owned was Bob under Lancaster, eight regular feet in ton width. was Ford truck 1% top body. body with a flat On this was water tank. question On the occasion of the accident in the two head- lights burning, lights top on the truck were on burning, lights burning. cab were and the clearance were body right The truck side there were two flares wider was than the cab and on
burning, one at front corner According and one at the rear corner. truck was record lighted up like a tree. Christmas equipment every respect. was standard There complaint anything wrong equip- is no with the engaged type ment. Bob Lancaster had been years seventeen and had never before had one of employees injured necessary and had never found it put watchmen in front of the mo- truck warn night question Majors car torists. On the '
only prior passed one which The road accident. straight was level one-half for a of at least distance Mrs.Majors watering- mile in each direction. saw pull truck over left side of the a considerable road distance before she reached it. The record shows without *14 customary watering conflict that it is usual and when sod upon highway the of a new the truck shoulders to drive along highway the left the side of for the that the reason always driver’s seat on the left side of the vehicle and necessary keep it is for the driver to the as near truck as possible edge highway to the extreme the of and fre- to quently look hack to see that the truck move too does not handling fast for the man the water truck hose. The edge paved portion, very on here was the of the which left paved highway right a clearance of 14 15 feet or of to its Majors which Mrs. could have used in the truck. highway traveling She had no purely on the business and pleasure. seeing After the truck move over highway to the left side of the in the the of water- course operation ing she continued toward it did not and avail open highway right of herself the the of truck. flag- She knew the was under construction. A man in front of the truck could not have advised or anything already warned of that did not her she know. stop. She claims that slowed hut down, she she did not completely pavement off the She turned the onto shoulder appellee knocking of road and struck the him about and continued for a feet distance of about 145 feet stop. brought before she her automobile to a How a impartial jury acquitted fair and could have her of beyond comprehension negligence understanding. or opinion gross my negligence In her and wanton was the proximate cause of this sole unfortunate and accident, Court should so hold a matter of law. Now allegations let examine the us declaration as to the appellee relies. n negligence charged ag-ainst (1) Bob Lancaster was negligently habitually pass that he allowed traffic to safety endanger of jeopardize through and (2) should he that doing work; plaintiff his he while was employees were signs where his near have had men (3) had more have engaged that he should work; stationed guardsmen have been job should that on sig- danger proper behind this front of employees protection to his afford reasonable so as to nals while duty (4) to formu- doing his that it was work; their protection safety of promulgate rules for late and (5) had watchmen employees; have he approaching warn employees traffic and to of warn the presence workmen; approaching traffic of the lights (6) with sufficient have had men that he should -working signals crew on each side other presence public the workmen. warn the undisputed alleged negligence, it is act of As to the first Highway Commis- contract with State under his the permit obligated principal contractor was sion passage the sub- Michael nor local traffic and neither right prohibit traffic on the road. contractor had the *15 alleged negligence, wore of there As second act signs all of and travelers at each end this construction fully that construction. were It advised the road was under watering the time the is that from shown record Majors the time car was started until of accident passed along only the Majors vehicle which and Mrs. road well that con- knew full the road was still under through opened struction and had not traffic. been alleged negligence applicable The act of would be third required appellee if in had been to work this case portion the traveled where traffic was con- road, stantly passing, Refining Company held in as was Gulf 296, 165 Ferrell, 476, Miss. 147 which will be dis- So. appellee cussed later herein. In case, however, working roadway completely was not in the was off but portion standing the traveled thereof on the shoulder person at a where no reasonable could have con- passing endanger cluded that traffic would him.
554 it when only
As to the act of is negligence fourth alleged that the master the work complex is both dangerous system safe adopt Miss. Crabtree, Tatum v. 130 safety rules. promulgate 152 61. Brown 449; Coley, alone has on Danger is not as this Court held negligence numerous occasions. only
The fifth are the and sixth grounds negligence judg- ones on which for affirmance of his appellee relies ment. These are that should have placed Bob Lancaster watchmen in front the truck to warn his behind and the otherwise. employees traveling by lights or public it Yet, is shown that in the course of without dispute years seventeen work no watch- doing this very type men have ever Lan- and no of Bob employee used caster has ever been injured by motorist. all experience of these that reasonable years demonstrates care require indeed, does not a watchman. what And, could a watchman have done on this occasion?1 Mrs. Majors saw the truck like a tree lighted Christmas up knew was the left the road where on side of for seventeen Bob had operated Lancaster years always similar trucks. She had been over the road and knew just that it and 23 feet in width. have known She must there was ample on the side passing space South of the truck and yet by her and wanton gross negligence she turned off the shoulder of the onto road on the North side. Because of her utter whole situation disregard watchman would all have probability also been struck her automobile.
It note that significant controlling opinion not undertake in what say does respect employer have any could or exercised more care than he did on this occasion. does suggest, however, matter which even or claimed alleged in the dec- *16 says when it that “the laration have jury may found the hose of the why no reason tank could not watering have on its side”. The placed right record shows top but to neither side that the hose was attached to through forced that water was of the water tank pump, separate it further of a hose means jobs. equipment all on such that this standard shows was always dispute that it is The record further without shows customary necessary watering travel truck for the highway that the who on the left driver, side so edge keep right side, on the left can the truck on the paved portion get that he and not so oft'on sod and holding can at intervals watch the man and avoid hose traveling too fast. controlling opinion
There some comment in the reference certain admissions made Bob Lancaster. willing The record shows that Bob Lancaster awas most personally paid in witness favor of his son. He had out large hospital having medical and bills treated his son injuries for seeing and was most interested his son yet recover from his insurance he carrier, was forced to equipment admit that the every was all standard in re- spect, fully that equipped necessary the truck was with all lights warnings passing it just motorists, proper operate on the left side being necessary done, watering it was to do the nighttime rays by day so that the of the sun would quickly evaporate cause the water to and cause the grass, fertilizer to scorch the that this work had been done by him in this type equipment, manner, with this period years of seventeen injury single without to a employee, during and that never this entire time he had ever necessary. considered watchman Under this sit- employer uation no expected could or required to have walking watchmen ahead of the truck to warn motorists. There was no “rule applicable of the road” in this case which only right truck to travel on the side of the road. The prescribed by “rules of the road” our application statute have no to a road which is under Myers construction. In Sanders, *17 is under a 300, that when road this held Court obligation to under construction and the contractor is permit the act of case, this the local traffic as in thereon, roadway obstructing any portion contractor in of the (act) negligent exercise of not a a reasonable “was but right carry completion, since he his to on the to left a for others sufficient clearance for the local traffic and pass safety exercising vigilant caution when traveling required and constant them in over lookout highway a known to be construction.” under passing, jury a noted, that in that case the found plaintiff verdict for the hesitation Court without this judgment a reversed the thereon rendered entered judgment here that it defendant for reason guilty held a as matter of law that contractor was portion highway obstructing of no a then under construction. my controlling
In view the cited in authorities opinion applicable presented. are not to the situation here Refining Company supra, For instance, in Gulf Ferrell, squat employee upon master directed his trav- portion busy city large eled of a street which a carried paint Parking” sign upon amount of traffic and to a “No pavement promise pro- a under that the master would prevent injury vide a employee watchman to while doing provide this work. The master failed watch- employee injured by man pass- and the was struck and a ing city open motorist. There the street was to all traffic constantly passing which in both directions and the employee was was in to work out in the line of traffic danger every where he from If vehicle. presented that had been the situation in this case I would readily agree providing duty that the master owed the protect employee, watchman employee but the working here was not completely in the but portion outside traveled the shoulder of entirely the road at danger which was safe from exercise of any passing in the motorist at the hands one iota of care. Company 209Miss.
Billups Entrekin, Petroleum controlling opinion likewise (2d) in the 781, cited filling operated station point. not in There the master approaches highway. paved the side of gravel placed filling there with loose were surfaced station leaving entering station the master. Customers *18 paved constantly gravel knocking the onto were portion loose this of effect the which had of the traveled bearings passing traffic ball of under the wheels pavement skid from motorist was caused to the master had created reason of the condition which employee engaged at work in and servicing while his to-strike filling parked a car which at the station. It negligent in was held failing that case that the master was gravel keep swept paved portion from highway,, that he should have fore might seen some such accident occur because of negligence. his Novelty Company
In United 42 Daniels, Miss., (2d) controlling opinion, 396, cited in the the master placed day measuring a servant on a -cold in a closed room eight by gas burning ten feet where heater with open youthful an inexperi- flame and this gasoline cleaning working enced servant use parts commonly “juke of a music machine known aas hiding place “juke box.” A rat ran from its ato in the box” point burning gas underneath the heater where its gasoline impregnated caught coat of hair fire and it then original ran back explosion to its hideout where violent pointed occurred. The presence Court there out that the of the rat was a mere incident chiefly “and serves ratify permeated the -conclusionthat the room was gasoline vapors” which the danger Court held was a against which the master should have warned and guarded his servant. Ship Company Yeager,
Ill Coast controlling opinion, placed 797, cited in the master ship one of his servants on the the hull inside of of under construction and at the same time em- had other ployees boring through on the outside trunnel holes ship boring which was about three feet in thickness. This augers compression. was done with driven air ship augers servant inside the could not hear these at great of because amount of noise incident to the carpenters augers work of the on inside. One through ship plain- drilled the hold of the and struck the completely through foot tiff’s and bored a hole it before he could extricate himself. There was a crew men bor- ing these holes from the outside and it was shown injury previously this same kind of had been inflicted upon employee an at work on the held and was inside, guilty that the providing master was in not employees ship warning in the with some kind of engaged boring where the outside workers were injury holes. In the case bar no similar ever had employee period before been inflicted in a years type seventeen principle of work, and the on *19 Yeager clearly which the applica- case was decided no has tion here. controlling opinion
The next cites Russell Williams, v. 168 says Miss. 150 181, So. 151 528, So. that it 372, point more in than the above mentioned In authorities. required that case the master a servant to ride on the running upon busy City board a truck a street in Hattiesburg, place danger, a turning known in across the street to give the left the driver failed to a signal for a employee left turn and the running on the injured by board was a motorist who was paved portion truck on the and traveled of the street open which was all kinds of traffic and not under construction. That upon point decision turned guilty the master was requiring his danger servant to ride in a of known no bears
559 presented the facts reasonable resemblance to record here. Hays, Priestly 788, So. 843, 112
The case 147 Miss. v. upon controlling opinion, an act in is based cited in the emergency of the the “rules it was held that whereunder city completed always applicable on a road” are not even open it has traffic. think street all kinds of I which is conclusively that the “rules of hereinabove shown application con have no under road” authority any on this if further be needed struction, but Czarnetzky proposition may in the cases of found 210 246 N. v. Booth, Wis. and Parrish 536, 574,W. (2d) 102 629. Smith, 250, 78 P. Colo. controlling opinion &
Next cited in the McLemore Rogers, McArthur 883. In that 650, ground case the servant was on to stand guy prevent coming hold a line steel beam from building contact with the wall its ascent while the negligently was under construction and the master failed protect splashing the servant from the of concrete at top aas wall, result of which the servant was injured. pointed It was there out that the hazard to which subjected against the servant was could was one he protect himself and the same time do negligent and it was held that the master was exposing the servant to such known hazard, but that cry presented case is far from the facts the record now before us. controlling opinion
The next cites Alabama and Vicks- burg Railway Company v. Graham, 171 Miss. company wherein the railroad was held not to ordinary
have exercised care to maintain an overhead bridge guardrails. with controlling safe ‘‘ opinion says guard that the rails were constructed in ac- plans specifications cordance Highway of the State Department.” An opinion, examination of the *20 guardrails shows however, were constructed in accordance with standards effect in but 1921, “that
560 requirements since 1921 the for wheel standards guards guard materially rails have been raised Highway Department, State and that 1931, since requires guard standard a wheel constructed timbers running length bridge, resting 6" x 8" the entire of the on placed bridge 4" x 6" blocks x 1' on the floor of the at 3%- top foot 6" x intervals, another 6" timber on of the securely through stringers 6" x all 8", bolted of the making bridge, guard, dressing, a wheel after in- of 15" originally required”. stead of 6" as [171 695, Miss. 157 So. It 243.] was further shown that the 1921 standard protection traveling-
“did not afford sufficient public”, notwithstanding company hut, this, the railroad nothing guards reasonably did to make the wheel safe caught emergency, a result thereof an automobile, as in an plunged inadequate guard over the wheel and fell over twenty ground feet to the below. Under these facts this question jury Court held that there awas for the to de- company termine whether the railroad had exercised protection public. traveling reasonable care for the Certainly presented by no such case is the record here. controlling opinion quotes finally Supreme from Corp. Instruments Lehr, v. 190 Miss. 199 1 600, So. 294, (2d) quotation stops 242, 246, but the too soon. following- should have continued on and included the language quite appropriate: Court which is here “ * * presumed ‘Courts will not be to he visionless *. Theory outweigh practice experience, evidence which contests and contradicts the evidence of ’ the senses must be received with caution. State, ex rel.
[St. Louis Transfer Clifford, 228 Co.] Mo. 194, S. 758, W. 755, Ann. Cas. 1218. As stated Hercules Company Powder v. Calcote, 860, 161 sympathetic ‘the case arouses a interest, we but proved liability against think there is no appel Although completely lant here.’ duty aware of the repel any this Court to invasion into the realm of the jury (Williams Company trial Henley, Yellow Pine
561 737, Miss. 153 State, v. 552; 155 125 Brown 893, Miss. So. 297), rare case of ‘it be a 121 and that must So. (Bell jury’ [South the court take from
which should 821), must Railway Company, we 30 234, 87 Miss. So. ern] guard recognize duty reciprocal Court principles in against any misapplication of substantive justify their not facts do those cases where admitted requested peremptory instruction invocation. The given.” ought defendant to have been “Theory in the was stated above case yet outweigh practice experience,” in the years practice experience case bar seventeen doing appellee in the have identical work which injury single failed to ployee. to an em- disclose instance of basing upon experience Instead of its decision practice controlling gone opinion has into pure theory. realm of should be Decisions based experience standard care has shown be rea- sonably safe. Coley,
In Brown v. 168 152 778, 783, 62, Miss. So. 61, quoted this Court from Seifferman v. 161 853, Miss. Leach, ground 138 563, where it was said: “The liability respect places to unsafe is not dan- ger, negligence. but The rule is one of reason. There many places machinery are in and around which are dangerous and cannot be made otherwise. Those who places, work there, work in unsafe the master but this does not make furnishing place liable as an unsafe * * * to work.” then Court said in Brown Coley: respects “The true rule in the mentioned is that when the master has taken reasonable care to furnish a doing suitable and safe location for the particular work and has ordinary there installed the generally approved equipment, proper suitable and for the place being and for the work of the kind there done and equipment adequate repair this the inis and he has furnished
appliances easily to be used in connection therewith operation which when used will render the as safe as may reasonably considering tbe tbe nature of done, machinery appropriate work and the character of the duty, performed thereto, the far master has so concerns doctrine aof safe work and of safe appliances although with which to there still be work, ’’ danger in the work. Company,
In Hammontree v. Cobb Construction many 844, 854, a case similar in 279, 282, respects to the case at bar, this Court said: “The work *22 require any there did not such concentration of effort or place any position attention or them in such a time that reasonably each themof was not able to take care of him Refining and Company self, hence cases such as Gulf v. 165 play. Ferrell, 296, 147 476, Miss. So. do come into very It must be a case of extra hazard and where, they nature of their work and of the situation in which placed, reasonably fully are the workers cannot take and respect open care of themselves, that in and obvious dangers industry an or work is to be loaded with the ex pense and incumbrance of watchmen, numerous even or permitted any at all. It watchman is not to be that the law in its endeavor to exact reasonable care on the part go of the master shall itself be unreasonable or to un machinery reasonable All extremes. work around is dan gerous; always particularly it will so, inas where, constantly place road changing work, shifts over grounds. danger difficult negligence, The test is not but is the failure to take such reasonable care by experienced as is taken pru or should be taken dent men. The master, as it seems to us, had taken that liability care here is, and there injury. therefore, no for the un ’’ fortunate Mauney Refining Company, In v. Gulf 193 Miss. 421, (2d) (2d) 8 9 427-430, 249, So. 780, So. this Court an- following principles nounced the rules and which I feel quite applicable are to the case at bar: firmly The rule is in established nearly this state, as in all the commonlaw that person states, in order that a who
563 injury to another particular results does act which character, such ofbe the act must shall be liable therefor, doing it person that situation, and done in such injury to anticipated some that have v. ’Antoni probably D therefrom, another will result v. 836; 126 Williams 766, 156 So. 758, Miss. Albritton, Lumpkin, but 842; 152 152, 169 Miss. So. anticipation prevision or not bound to actor is extraordinary improbable, or unusual, would include range although happening within the such occurrence, of possibilities. 166 Bloodworth, v. R. Illinois Cent. Co. Refining Co., Burnside Gulf 333; Miss. So. 602,617, 145 Shuptrine 182 Herron, 219; 460, 470, Miss. way rule affirmed one 620. This run the hundreds or which will into another cases * * * in this state. “In such a as indeed in most situation, situations, principles kept prac the common law must be within occupy ticable an attitude which bounds so as not to would who over and above heads of those carry every day must on affairs of life. Hence, say, foresight law must as it ‘care or does, probable weighed jewelers’ effect of an act is not to be on philos expert nor scales, calculated mind of the *23 opher, from cause to in all Illinois effect, situations’, page supra, Bloodworth, Cent. R. So. 166 Miss., 618, 145 Co. page heavy impose 336; and that would too a re sponsibility negligence to hold the tort account feasor unlikely happen, able for what was unusual or for and only remotely slightly prohable. what 38 Am. and p. by Jur., § 61. As said in Meridian 713, Court Grain, etc., Jones, 764, 776, 771, Co. quoting p. on 9th 41: Torts, Ed., Pollock ‘A reason guided by only able man can be reasonable estimate of probabilities. guard If men went about to themselves against every might risk to themselves or others which conjecture ingenious possible, conceived as human affairs could be carried on at all. The reasonable man, are then, whose ideal behavior we to look as duty, neglect standard of he can will neither what fore- anxiety probable, cast as that are nor his on events waste ’ ” barely possible. It must be admitted in the at bar that the act case Majors ignoring open pave- Mrs. the 14 or 15 feet of recklessly wantonly driving ment and her car off improbable onto the shoulder road was an unusual, extraordinary happened occurrence which had never against ingenuity before and foresight which no sort of human protected could have a workman on shoul- wholly range der road. anwas act in the aof possibility certainly range bare but not within the of rea- foreseeability. my judgment proxi- sonable In the sole appellee’s injury gross mate cause and almost Majors, criminal of Mrs. which Bob Lancaster could not have foreseen and for which in- damages. surer should not be held liable in I think the peremptory requested by instruction him have granted. Arrington, join
McGehee, J.,C. Holmes JJ., this dissent.
City of Greenville v. Williams.
Mar. 1952. (57 (2d) 266) No. 38315