Rose v. Pace , 144 Miss. 375 ( 1926 )

^* Corpus Juris-Cyc References: Master and Servant, 39CJ, p. 844, n. 24. The appellee, Daniel Ryan Pace, recovered a judgment against appellant, E.L. Rose, for one thousand dollars for personal injuries sustained by appellee while employed as a laborer at a sawmill. His duty was to operate that part of the machinery which brought logs from the log yard up an incline to the mill; machinery consisting of a drum or windlass, with large wheel, which would pull all the logs upon the platform to be transported to the saw. A friction wheel applied against the drum would cause the drum to turn and wind the steel cable on the drum, and it had iron bolts which projected out beyond the nuts about one and one-half or two inches. The proof showed, further, that there was an upright piece of timber a short distance from the drum against which the steel rope passed in order to force the rope onto the drum. This board became worn, and the steel rope "frazzled," forming a tangled knot; and the appellee, while the friction wheel was running, undertook to uncoil the knot which had formed. In doing so, his hand was caught and carried in between the friction wheel and the drum, and he was injured, in that he lost all the fingers on his right hand.

The proof further showed that at the time of the injury the carrier needed repair, and that the machinery was running, although no sort of operation was being carried on. The plaintiff said that he was an experienced man, and understood how to operate this drum and friction wheel; and, on cross-examination, stated that he knew that it would have been safe to have caused the fireman to stop the engine, which would have stopped the friction wheel. This man was shown to be a man of intelligence, and the danger he incurred was shown to have been obvious. The defendant asked for a peremptory instruction, which was refused by the court. We think same should have been granted. There would have been no danger at all if the plaintiff had caused the machinery to be stopped before he thrust his hand into an obviously dangerous place, which the master had not instructed him to do, but which he did voluntarily. The proximate cause of his injury was his voluntary act, and his imprudently and unwisely thrusting his hand into a place manifestly and obviously dangerous; and, instead of selecting the safe method of uncoiling the knotted rope by stopping the machinery, he adopted voluntarily a highly dangerous method by undertaking to uncoil the rope with the machinery running, and, as a result, was injured. He acted on his own judgment, without an order so to do from the master. This case is ruled by Ovett Land Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893.

The lower court should have peremptorily instructed the jury to find for the defendant.

Reversed, and judgment for appellant.

Reversed.