97 So. 187 | Miss. | 1923
delivered the opinion of the court.
This action is by J. E. Jacobs against the Waterford Lumber Company, appellant, for damages for personal injuries alleged to have been sustained by him while in the employ of the appellant lumber company, and, from a judgment in favor of the plaintiff for ten thousand dollars the lumber company prosecuted this appeal.
The declaration is in four counts, and each count charged that the appellee was an employee of the appellant, Waterford Lumber Company, in the capacity of woods foreman, and that it was a part of his duty to superintend the work of logging appellant’s mill and the loading of lumber cut by various portable sawmills of appellant, which were located along its lines of railroad. Each count charged that at a. time when the appellee was superintending the loading of a carload of lumber, the lumber fell off the car and on the appellee, and caused certain personal injuries therein described. The first count charged:
“That the proximate cause of plaintiff’s injuries was the negligence of defendant in failing and refusing to furnish nails of sufficient size arid strength, and nails chat had not been damaged, and stanchion cuffs and bolts to fasten same on said cars, and with which to securely and properly fasten the stanchions of the defendant com
The second count charged: “That the proximate cause of plaintiff’s injuries was the negligence of the defendant company in failing to furnish a car suitable and reasonably safe, on which to load the lumber of the defendant company, at the places, in the manner, and in the quantities, and under the conditions that plaintiff was required to load same by the defendant company.”
The third count charged: “That the proximate- cause of plaintiff’s injuries ivas the negligence of the defendant company in failing to furnish plaintiff a reasonably safe place in which to work.”
The fourth count charged: “That the proximate cause of the plaintiff’s injuries was the failure of the defendant company to furnish plaintiff a car that was reasonably safe and suitable for the purpose of loading the lumber of the defendant company in the quantity, at the places, and in the manner that plaintiff was required to load said iumber on said car by defendant company.”
The facts in this record, in so far as they are material to the decision of this case, are substantially as follows: The main sawmill of the appellant was located on the main line of the Mobile & Ohio Railroad, and it owned and operated a logging railroad of several miles length over which it transported the logs that were to be sawed into lumber at this mill. Tn addition thereto, it owned a portable sawmill, located in the woods, at which some lumber was manufactured, and this lumber was then hauled, under the supervision and direction of the appellee, to the logging railroad, at a point thereon where there was a spur or side track of several hundred feet in length, and it was there piled alongside of this side track to be afterwards loaded on log cars of the appellant, for the purpose of being transported to the main mill about six miles away, where it was unloaded and put through the mill and trimmed, and thereafter stacked on the yard.
The testimony offered on behalf of the appellee showed
Appellees’ testimony further showed that on the occasion when he was hurt he was directed by the superintendent of the mill to load a car with lumber three inches by eight inches by sixteen feet long, and to load thereon approximately six thousand feetr that this lumber was located along the side of the spur track at various points; that he had some eight or ten employees of appellant under his control and supervision, and he used these employees for the purpose of loading the lumber on the occasion in question; that, after loading all of the required dimensions out of the first pile, he moved the car down to the next pile, variously estimated as being from twenty-five to fifty feet'from the first pile; that he loaded all the lumber in the first pile on one side of the car and against the two stanchions; that the lumber was loaded in this way instead of being evenly loaded across the bed of the car, for the reason that it was more convenient to do so; that after this quantity of lumber had been loaded on one side of the car, he attempted to move the car to another pile, and the method which he adopted for moving the car was to have the employees under his supervision push the car along; that when it reached the point where he desired it to be stopped, one of the men under his supervision used a pine knot as a chock, placing the
The first assignment of error that is pressed by the appellant is that the proof shows that at the time the appellee was injured he had abandoned his employment and had undertaken to perform a duty which was without the scope of his employment, and that in the doing of this act he became and was a mere volunteer, and that the master, under the circumstances, owed him no duty, other than not to willfully or wantonly injure him.
In determining whether an employee was acting within the scope of his employment at the. time he'was injured, the surrounding circumstances of each case must be considered. In the case at bar the appellee was charged with the duty of moving a heavy, partially loaded car down
“The question whether the injured person was acting in the course of his employment is for the jury, where the evidence is conflicting, or where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony, otherwise that question is decided as one of law by the court.” Labatt’s Master and Servant, section 1566; 18 R. C. L., par. 86, p. 582.
The second ground for removal urged by appellant is based upon the refusal of an instruction by the jury that they could not find for the plaintiff because of the failure of the defendant to furnish the plaintiff with an engine por the purpose of spotting the car in question.
We have hereinbefore set out the specific acts of negligence relied upon by appellee in the several counts of his declaration, and in no count was it alleged that the failure of the appellant to furnish an engine proximately caused or contributed to appellee’s injury, and since there was testimony admitted to show that appellant failed to furnish an engine, and that it was necessary for the safety of the employees that an engine be furnished for the purpose of spotting cars, we think this instruction should
Appellant next assigns as error the refusal of an instruction peremptorily instructing the jury to find for appellant upon the third count of the declaration, and also an instruction reading as follows:
“The court instructs the jury that they cannot find for the plaintiff, on the ground that the defendant failed to furnish the plaintiff a reasonably safe place in which to perform his work.”
These instructions should have been given. There was no evidence offered to warrant the submission of the case to the jury on this count of the declaration, and no evidence to support a finding by the jury that the appellant failed to furnish the appellee a reasonably safe place in which to work. Under the evidence in this record the appellee’s recovery, if any, must be based upon a failure to furnish reasonably safe tools and appliances or instrumentalities.
Appellant next assigns as error an instruction granted to appellee which reads as follows:
“The court instructs the jury for the plaintiff that if you believe that the plaintiff was guilty of contributory negligence, still, under the law this shall be no defense in this case, if you further believe from the evidence that the defendant was guilty of negligence which proximatelv contributed to plaintiff’s injury.”
It was error to grant this instruction. Sections 502' and 503, Hemingway’s Code, provide that:
“In all actions hereafter brought for personal injuries or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured,” and “all questions, of negligence and contributory negligence shall be for the jury to determine.”
Since the case must be reversed for the errors herein indicated, we do not deem it necessary to now discuss the other errors assigned.
Reversed and remanded.