Kilcrease v. Motor Co. , 149 Miss. 703 ( 1928 )

^* Corpus Juris-Cyc. References: Negligence, 29Cyc, p. 478, n. 86. This is an appeal from a judgment by which the court below refused to award damages to the appellant for an injury to his person alleged to have been caused by the negligence of the appellee.

The declaration alleges, in substance, and the evidence discloses, that the Galtney Motor Company sold to M.E. Kilcrease a tractor sawmill not manufactured by it, and agreed to set the mill up for, and turn it over to, him in good running order. The mill was delivered to Kilcrease, carried by him to the place where he intended to operate it, and was set up by H.A. Green, an employee of the Galtney Motor Company, who had been instructed by it so to do. Power is communicated to the machinery, by means of a belt which revolves around a wheel attached to a shaft. Provision was made by the manufacturers of the machinery for fastening this wheel to the shaft by means of a "set screw" screwed through part of the wheel and into the shaft, a groove designated as a key seat having been made in the shaft for that purpose. Green negligently failed to screw the "set screw" into the shaft far enough to securely attach the wheel thereto. After setting up the mill, Green turned it over to M.E. Kilcrease, who, a few hours thereafter, began sawing lumber therewith. The appellant, a minor, was employed by Kilcrease to work the lever which adjusted the logs on the carriage, so that they could be sawed into lumber of the dimension desired. His duties required him to ride on this carriage. About two hours after the mill had been turned over to the purchaser by Green, and while the appellant was engaged in the discharge of the duties of his employment, the carriage suddenly stopped for an instant, and then again as suddenly started forward, throwing the appellant therefrom and against the saw, which was revolving rapidly, resulting in his foot being so severely cut as to necessitate its amputation shortly thereafter. The jury would have been warranted in believing that the sudden stopping and starting of the carriage was caused by the imperfect manner in which the "set screw" had been screwed through the wheel into the shaft. The appellant sued Green and the Galtney Motor Company for damages, alleging that — "Green, while acting as agent of the Galtney Motor Company and in the scope of his employment and in the furtherance of his master's business, recklessly, carelessly, and negligently failed to screw one of said set screws down into the said key seat or groove on the shafting so as to hold the pulley safe and fast on the shafting, and negligently and carelessly failed to place any set screw at all on the other side of the pulley so as to make the pulley doubly safe and fastened securely on said shafting."

The question presented by this record is: Is a contractor, vendor, or furnisher of an article liable to third parties who have no contractual relation with him for mere negligence in the construction, manufacture, or sale of such article? It will not be necessary for us to discuss the legion of conflicting decisions of other courts dealing with this question, for the reason that this court, in Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469, aligned itself with those courts which answer the question in the negative. Whether this court will align itself with those courts which recognize certain exceptions to the rule referred to in Vicksburg v. Holmes,supra, and Pate Auto Co. v. Westbrook Elevator Co.,142 Miss. 419, 107 So. 552, is not here presented for decision, for the reason that the declaration alleges, and the evidence discloses, negligence only on the part of Green in setting up the sawmill and turning it over to the purchaser.

Affirmed.