Poplarville Lbr. Co. v. Kirkland , 149 Miss. 116 ( 1928 )

^* Corpus Juris-Cyc. References: Master and Servant, 39CJ, p. 499, n. 3; p. 1137, n. 64; p. 1151, n. 73. Appellee brought this action in the circuit court of Pearl River county against appellant to recover damages for an injury alleged to have been received by him through the negligence of appellant, while in the performance of his duties as one of appellant's employees, and recovered a judgment, from which appellant prosecutes this appeal.

Appellee was an employee of appellant in its planing mill, and was injured while engaged in the performance of his duties in the operation of the planing mill. The declaration is in four counts. Each count sets up that appellee was a laborer in appellant's planing mill; that in the mill was a planer's saw, called a "cut-off saw," which was placed on a wood platform about three feet high from the floor, and used to cut off or trim the ends of the lumber before the latter was run through the planer; that, when the ends were cut off by the saw, they fell on the floor; that it was a part of the duties of appellee to remove these ends of the boiler, where they were used for fuel; that, on the day the injury occurred, the ends had accumulated around the cut-off saw, and had to be removed by the appellee; that appellee was instructed by the foreman of the mill to remove them; that, in order to remove the ends, appellee was directed to pick them up, with his hands, from the top of the pile instead of from the bottom of the pile, as such ends could not be easily removed by pulling them out from the bottom of the pile; that the cut-off saw was unguarded and exposed; and that in attempting to remove the ends appellee stepped up on the pile of ends, and slipped and struck the saw, resulting in an injury to his right hand and arm.

In addition, the first count charges that the negligence of appellant consisted in its failure to provide appellee with a reasonably safe place in which to perform his work by negligently allowing the cut-off ends of lumber to accumulate unnecessarily, thus affording an insecure footing to appellee. The second count makes the additional charge that the injury was caused by the negligence of appellant in not warning and instructing appellee of the perils attending the performance of his duties; and the third count, in addition, charges that appellant's negligence consisted of a failure on its part to provide appellee with a reasonably safe appliance with which to work, in that it failed to inclose, by a guard or a house, the cut-off saw which injured appellant's hand and arm; and the fourth count makes an additional charge that appellant's negligence consisted in the failure on its part, through its foreman to warn appellee of the dangers incident to his work.

The evidence showed that appellee was injured in slipping and falling while engaged in his duties of removing and caring for the cut-off ends of the lumber. The material evidence was conflicting, but the evidence for appellee tended to show that the cut-off saw, by which appellee was injured, was about eighteen or twenty inches in diameter; that it was placed on a table about three feet high, three feet wide, and three feet long; that about half of the saw was below the table, and half above; that this saw was used for cutting off the ends of lumber before the lumber was put through the plaining mill; that, when the ends were cut off by the saw, they fell on the floor, and were left there to accumulate until there was a pile something like two or three feet high before appellee was requested to move them, that it was part of appellee's duties to remove these ends when requested, and in removing them he could not begin at the bottom of the pile and pull them out, but had to step up some distance on the pile, and begin removing them from the top; that in so doing his foot slipped, and his hand and arm came in contact with the cut-off saw. The evidence tended to show further that this method of removing the ends of the lumber was dangerous, and that both appellee and appellant knew that there was danger of coming in contact with the cut-off saw in removing the trimmings in that manner. Appellee admitted in his evidence that the danger was apparent, and that he was aware of it. The evidence tended to show that the cut-off saw could have been housed, or hooded, so as to prevent the employee, while removing the ends of the lumber, coming in contact with it. The evidence for appellant, however, tended to show that an unhoused cut-off saw similar to the one by which appellee was injured was in common use in planing mills.

The trial court refused appellant's request for a directed verdict. That action of the court is assigned and argued as error. We think there was sufficient evidence to go to the jury on the question of liability under the first and third counts of the declaration. The first count of the declaration, as shown, charged that the place where appellee was required to work was not a reasonably safe one, because the cut-off ends of the lumber were permitted to accumulate in such quantities as to place the employee removing them from the top in danger of coming in contact with the cut-off saw. The third count charged that appellant's negligence consisted in its failure to house the cut-off saw so as to prevent its employee removing the cut-off ends of the lumber coming in contact with such saw. Each of those counts, if proven, made a case of liability on the part of the appellant.

Appellant assigns and argues as error the action of the court in submitting to the jury, by instructions given for appellee, the question of liability on the part of the appellant under the second and fourth counts of the declaration. The second count of the declaration as shown, charged that appellant's negligence consisted in its failure to warn appellee of the perils attending the performance of his duties. The evidence showed, without conflict, that there was no necessity for such warning. Appellee was seventeen years of age, and fully understood and apprehended the danger of coming in contact with the cut-off saw while performing his duties in removing the ends of the timber. If appellant had instructed appellee of such danger, it would have been no help to the latter. He would have been told what he already knew. There was nothing complex about appellee's surroundings while performing his labor. It was therefore error for the court to submit the question of liability to the jury under the second count of the declaration.Dobbins v. Oil Co., 133 Miss. 248, 97 So. 546.

The fourth count of the declaration is substantially the same as the second count. It charges negligence on the part of the appellant in not warning appellee of the dangers attending his work. Therefore what has been said with reference to the second count of the declaration applies with equal force to the fourth count.

We do not think the trial court committed any other error which amounted to a denial to appellant of any substantial right.

Reversed and remanded.