McKinnon v. Braddock

104 So. 154 | Miss. | 1925

^* Headnotes 1. Appeal and Error, 4 C.J., section 2709; 2. Master and Servant, 26 Cyc., p. 1462; 3. Master and Servant, 26 Cyc., p. 1089; 4. Appeal and Error, 4 C.J., section 3032; Master and Servant, 26 Cyc., p. 1510. Appellee, R.H. Braddock, brought this action in the circuit court of Clarke county against appellant, J.T. McKinnon, a sawmill owner, to recover damages for an injury alleged to have been suffered by appellee as an employee in appellant's sawmill because of the failure of appellant to furnish appellee a reasonably safe place to do the work required of him as such employee. Appellee recovered judgment for one thousand dollars, from which judgment appellant prosecutes this appeal.

The controlling principle of law in this case will be found inHinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179. There, as in the present case, the employee's ground for recovery was based on an alleged unsafe place to work furnished him by his employer. The court said there was no merit under the facts of that case in the plaintiff's contention; that his "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 not incumbent upon him, but upon a fellow employee."

One of the errors assigned and urged with much vigor by appellant is that the trial court erred in not granting his request for a directed verdict.

In determining the propriety of the action of the court in that respect, every material fact which appellee's evidence tended to show, either directly or by reasonable inference, should be taken as true. So viewing the evidence, appellee made, in substance, the following case: He was employed in appellant's sawmill; his principal duties were upon the floor of the sawmill, looking after the roller bed. Down under the floor of the mill were conveyor chains which, at times, became clogged up with slabs and debris. There was down there a rapidly revolving shaft with a set screw, or bolt. It was a dangerous place. There was little, if any, conflict in the evidence as to that fact. Appellee testified that, besides his duties upon the floor at the roller bed, he was instructed by the superintendent of appellant's mill, when he was employed, that whenever anything got wrong with the conveyor chains down under the floor, he was to go down and relieve, or assist in relieving, the difficulty. There was other evidence tending to show that that was a part of appellee's duties. On the other hand, the evidence on behalf of appellant in that respect sharply conflicted with that on behalf of appellee.

Appellant's evidence tended to show that appellee's duties were confined exclusively to the roller bed upon the mill floor, and that he had been instructed not to go down under the floor where the conveyor chains and other machinery were, because it was very dangerous so to do. The conveyor chains under the floor became clogged. Appellant's mill-wright, Pruitt, called appellee down to assist in clearing the conveyor chains. Appellee testified that Pruitt was appellant's "straw boss." Another witness testified that he was the "overseer" of the mill. In obedience to the call, appellee went down under the floor to assist Pruitt in unclogging the conveyor chains. The space between the ground and the floor above was only about four feet. Appellee, while engaged in that work, came in contact with the set screw or bolt on the rapidly revolving shaft, and was injured.

Appellant argues that he was entitled to a directed verdict because appellee left the work for which he was employed, and the place where he was engaged in such work, which was a safe place, and, contrary to appellant's instructions, went down under the floor of the mill into an unsafe place. But as we view the evidence, there was a conflict on that issue of fact.

Appellant contends that the trial court erred in refusing to submit to the jury, by instructions requested by appellant and refused by the court, the question whether, at the time of his injury, appellee was engaged about the work for which he was employed. There can be no doubt under the law that if appellee was furnished a safe place to work and was injured as a result of placing himself in a dangerous place not called for by his duties, in order to assist a fellow employee he had no right to recover. That was the defense appellant undertook to establish by his evidence. Appellee's case was the exact converse of that. That question, therefore, was the very crux of the case. It was not submitted to the jury in any instruction given for either appellant or appellee. Appellant requested instructions of the court properly submitting the question, which instructions were by the court refused. They should have been given. Their refusal, therefore, was reversible error. We find no other error in the case that we consider was harmful.

Reversed and remanded.