44 So. 2d 551 | Miss. | 1950
This appeal is from a judgment based upon the verdict of a jury in favor of the defendant, S. M. Mohon, in a suit for damages for a personal injury sustained by the plaintiff, Willie Oakes. It is urged by the plaintiff that the trial court erred in its instructions to the jury to such an extent as to influence an erroneous verdict in favor of the defendant. It is unnecessary that we discuss any other alleged errors on this appeal.
The defendant was engaged in the business of servicing oil wells in the Tinsley oil field, and correcting any trouble that arose in the operation of such wells. He had in his employ a crew of five men to do this work. He had placed O. C. Bradley in charge of the crew with full authority to direct the manner and method of the performance of the work to be done, and the other members of the crew, including the plaintiff, Willie Oakes, and Joe Oakes, Joe Heathcock, and W. M. Elisey were expected to obey the orders of the said Bradley as foreman, or vice principal of the defendant. The plaintiff, his said employer, and the foreman all so testified.
On the occasion complained of it appears that one of a group of metal rods, 7/8 of an inch in diameter and 25 feet in length, had become unscrewed or broken far beneath the earth’s surface and it was the duty of Joe Oakes, Joe Heathcock, and the plaintiff, Willie Oakes, ,to .screw on the disconnected rod if found on investigation by them to be unscrewed from the rod below, or to replace the same if broken.
It further appears from the testimony on behalf of the plaintiff that his brother, Joe Oakes, was making a test to .ascertain whether, the rod was unscrewed or broken. For this purpose he used what is called by the witnesses a “sub” or a 4-foot piece of a 7/8 inch pipe; that Joe Oakes came to the conclusion that it was a “screw-on job” and so announced this fact to his foreman Bradley; that thereupon Joe Heathcock went to the truck nearby
That thereupon Joe Oakes, who had hold of the 4-foot sub or pipe with one end resting against the bail of the elevator (which is not described in the testimony), and the other end against the rod which was to be turned and screwed back on, and who had been awaiting Heath-cock’s return with the spinning-wheel, was ordered by the foreman Bradley to go ahead with the work of turning the rod with the assistance of Heathcock so as to screw it back onto the one from which it had become disconnected, as they were “now rigged up”; that Heath-cock then began to assist Joe Oakes-in turning the rod in the ground by the use of this 4-foot sub or pipe, either by having the round edge of the 4-foot piece of pipe against the round edge of the rod, which extended down into the earth, or by having the end of this sub or pipe against the said rod, and when they had turned the rod a few rounds in attempting to screw it on, as they were ordered to do by the foreman, according to the implication of his command to go ahead as “you are now rigged up”, the foreman ordered the plaintiff Willie Oakes,' who was standing nearby, “ to get a wrench and "give-'-them a hand”, according to the testimony of Joe Oakes, and to “get a 24-inch Stillson wrench and give them a'hand”, according to the testimony of the plaintiff, Willie ¡Oakes; that when the three men had thus turned the rod' as far as it would go, or nearly as fab as it would' go; the-4-inch, sub or pipe slipped off the rod and the rod béga& ¡to re
All of the testimony discloses that the placing of the 4-foot sub or pipe through the elevator and against the rod, which was being turned, was an unheard of performance, and that the attempt of the plaintiff to aid in turning the rod with a Stillson wrench under such circumstances was a dangerous mode and method of performing the work about which these three men were engaged.
The issue of fact in the case is whether or not the plaintiff was using the Stillson wrench to aid his two fellow-servants, under such circumstances, in compliance with an order from his foreman Bradley, or whether he had selected the 24-inch Stillson wrench of his own accord, without any previous command from his foreman to do so, in preference to selecting one of the chain tongs which were in the truck alongside this wrench, or the other Stillson wrench, which was 36 inches in length, since it was shown that a chain tong would ordinarily have been reasonably safe for his use in aiding his two fellow-servants in their efforts to screw on the rod.
The record is silent as to whether the use of the 36-inch Stillson wrench would have been safer than the use of the 24-inch Stillson wrexich, but the proof on behalf of the defendant disclosed that' there was in the truck, along with the other tools, what is called a “cheater” bar, which could have been fastened to the' end of the Stillson
Thus it will be seen that however negligent the act of the two fellow-servants may have been, it was being performed on their part under the orders of the foreman when he told them to go ahead with the work as you are now rigged up; and therefore the injury sustained by the plaintiff could not have been due solely to the negligence of these two fellow-servants, nor solely to the negligence of the plaintiff when acting under the order of the foreman, and especially so if the latter knew that his order was one that the plaintiff was likely to obey.
It should be further noted that the employer Mohon testified that the two safe methods for doing the work about which these servants were engaged was that they either use the spinning wheel or «chain tongs, and it is shown that they had theretofore used the spinning wheel for such purpose. There was testimony that most of the major oil companies used the spinning’-wheel as the safer method, of the two, whereas there is other testimony to show that the chain tongs were most commonly used for the purpose. The servants, including the plaintiff, had
Numerous experts testified for both the plaintiff and defendant as to what would constitute a reasonably safe method for doing this work, but none of them, seem to have ever known of. an instance where the 4-inch sub or pipe had been used by the follow-servants by pushing it through the- elevator in the manner testified to, and where another servant was commanded to help them by either the use of chain tong or a wrench, since there is no dispute that the 4-foot sub or pipe was likely to slip off the pipe as it did do on the- occasion in question.
Mr..Elisey, who was on top of the oil well derrick, at the time of the accident, testified for the defendant that the plaintiff had applied the Stillson wrench to the rod and was trying to turn the same before his two fellow-servants adopted the dangerous method of inserting the 4-foot sub or pipe through the elevator and against the rod that was being turned; but even the foreman, who was within 6 or 8 feet of the other three members of the crew, gave a different version of the matter, and he did not dispute the fact that the other two servants were using the sub or pipe before the plaintiff got the wrench and /uridfertook to help them. He did deny that he gave any . orders at all to either the plaintiff or to his fellowserváhtb, b'trt contended that all of them were free to and did select' their tools with which to do the work.
Under the foregoing state of the case, the trial court gave to the defendant a number of instructions to the effect that even though the foreman Bradley ordered or directed the plaintiff and his other workmen tó use un-'
Without setting forth in full the five erroneous instructions complained of, we deem it sufficient to say that in our opinion they were not authorized under any of the following cases, to wit: Brown v. Coley, 168 Miss. 778, 152 So. 61; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792, 150 So. 810; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Martin v. Beck, 177 Miss. 303, 171 So. 14; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; J. J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571; Gow Co., Inc., v. Hunter, 175 Miss. 896, 168 So. 264; Odom et al. v. Walker, 193 Miss. 862, 11 So. (2d) 452; and Walley et al. v. Williams, 201 Miss. 84, 28 So. (2d) 579.
In the other cases above cited, most all of which were rendered since the decision of Brown v. Coley, the Court either upheld verdicts against the master where the servant was injured in carrying out a negligent order of a
The author of the opinion in the case of Brown v. Coley, supra, upon which the instructions in question were based, later wrote the opinion in Walley v. Williams, supra, where the plaintiff used an openface bucket to refuel a tractor engine, which was being operated with a jump spark. Some gasoline spilled and was ignited by the jump spark and the plaintiff was injured. The Court there stated the condition upon which the plaintiff could recover by saying that [201 Miss. 84, 28 So. (2d) 581] “ having admitted that he was using an open-face bucket to refuel his engine while it was in operation, he must prove that he was ordered by his foreman to do so in the manner that he did.” In that case the danger was evidently £ £ so imminent that no person of ordinary prudence should encounter it, even under orders”, but the writer of the opinion there recognized that the doctriné of assumption of risk had been abolished and that the effect of contributory negligence had been limited in this state.
As a general rule, by virtue of these statutes, when once negligence has been shown on the part of the master followed by injury to the servant, the only way
We are therefore of the opinion that all of the instructions complained of are erroneous. They eliminate entirely the question of whether or not the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and they are in our opinion otherwise incorrect in that they tend to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action.
Reversed and remanded.