Tatum v. Crabtree , 130 Miss. 462 ( 1922 )

Anderson, J.,

delivered the opinion of the court.

Amos Crabtree, the appellee, sued appellant, W. S. F. Tatum, in the circuit court of Forrest county for damages suffered by him on account of his right side being mashed and bruised and his left leg" broken between the hip and the knee caused by the alleged negligence of appellant, his employer, in failing to furnish him a reasonably safe place to work. There was a trial resulting in a verdict for appellee in the sum of three thousand dollars, upon which the court rendered a judgment for that amount, from which appellant prosecutes this appeal.

The principal assignment of error, and the only one necessary to. consider, is that the court should have directed a verdict for appellant on the ground that the evidence did not tend to establish liability on the part of appellant.

Appellee’s declaration contains four counts, upon the first of which the trial court held, for reasons unnecessary to state, that under the evidence there could be no recovery. The three counts upon Avhich the trial was had charge in substance that appellant was the owner of a sawmill plant in the operation of which there were saw carriages, live rolls, dead rolls, lumber ramps, and movable skids; that said sawmill plant Avas large, and daily manufactured a great quantity of lumber, requiring the labor of many employees ; that appellant had in his employ one Boles, a fellow servant of appellee, whose duty it was to assist appellee in taking the manufactured lumber from the roller bed and throAving or rolling it down on the lumber ramps so as to make ready for its loading and shipment on railroad cars; that movable skids were used in the process of throAVing or rolling the lumber doAvn from the roller bed onto the ramps, which skids sometime became misplaced, necessitating their readjustment by appellee, that being a part of his duties; that on the occasion of appellee’s injury he was down on the ramps engaged in replacing the skids when a large piece of timber about one foot square, thirty feet in length, came out from the mill on the roller bed and was by said fellow servant, Boles, thrown down on the ramps, striking appellee and causing the injury complained of. In each of the three counts of the declaration on which the cause was tried the ground of liability charged is that appellant failed to furnish appellee a reasonably safe place to work. In the second count it is charged that, although the immediate cause of the injury was the act of the fellow servant, Boles, jn turning the piece of timber off of the roller bed onto the ramps before appellee had replaced the skids, nevertheless the place where appellee was engaged in his duties was an unsafe place, in that appellant had negligently failed to adopt rules governing appellee and his fellow servant, Boles, in the performance of their duties with a view of their safety from injury at the hands of each other. In the third count the place is charged to have been unsafe in that appellant had allowed the roller bed to become so out of repair that it leaned or slanted toward the ramps, which resulted in the timbers at times prematurely falling from the roller bed onto the ramps, and in that the skids onto which the timbers were turned or thrown on reaching the ramps would become misplaced because not properly fastened, necessitating their readjustment by appellee, in performing which duty his back would be turned toward the roller bed and his fellow servant, Boles, and that appellee was so situated and engaged when injured, which injury was caused by the defective skids in connection with the fact that the leaning roller bed precipitated the piece of timber down onto the ramps before appellee finished the duty in which he was engaged. The fourth count is substantially the same as the third.

The evidence shows without conflict the following facts: When the lumber was manufactured by appellant’s mill, it was carried out on roller beds, from which it was turned -or thrown down onto the movable skids and lumber ramps, substantially in the manner averred in the declaration. From time to time the skids would become misplaced. It was the duty' of the appellee to readjust them. On the occasion when appellee was injured he was down on the ramps adjusting the skids which had become misplaced. While engaged in such duty he was only a short distance from his fellow servant, Boles, each of whom were in full view of the other. In replacing the skids appellee’s back was turned toward the roller bed and his fellow servant, Boles. While appellee was engaged in that duty, there came out on the roller bed a piece of timber about one foot square, thirty feet in length, to be thrown down on the ramps at which appellee and said Boles were at work. Without waiting for appellee to complete the readjustment of the skids, and without giving him any warning of his purpose, the fellow servant, Boles, with his cant hook, turned the piece of timber off of the roller bed onto the ramps, which rolled down against appellee with great force, mashing and bruising his right side and breaking his left leg between the hip and knee. The evidence shows that to so throw the piece of timber down on the ramps under the circumstances without warning to appellee on the part of the fellow servant, Boles, was most dangerous. Some of the witnesses stated that it was as dangerous as being in front of an onrushing locomotive. The fellow sérvant, Boles, gave as his only excuse for his conduct that he simply overlooked his duty to warn appellee or see that he was out of danger before throwing the timber down on the ramps. In other words, it is shown beyond question and without conflict in the evidence in this case that the proximate cause of the injury to appellee was the fault of his fellow servant, Boles.

If the roller bed was defective in that it leaned toward the ramps, as appellee’s evidence tended to show, this was wholly immaterial, because the piece of timber in question did not by reason of that condition fall off of the roller bed prematurely. Therefore such defect, if it existed,-had no causal connection whatever with the injury.

The appellee undertook to show that the place where he was engaged at work was unsafe because appellant could and ought to have provided movable skids which would not have become misplaced and thereby necessitated their readjustment by Mm. But on cross-examination appellee admitted that the movable skids in use were the best-known method by which the timber could be thrown from the roller bed onto the ramps.

Was the promulgation of any rule or regulation by appellant for the safety of appellee required under the facts of this case? A master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the work about which such servants are engaged is dangerous to life or limb; it is only where, in addition to being dangerous, the work of the servants is also complex, and the conditions which may arise are uncertain and obscure. If the work is simple in character and free from complexities, the master is under no obligation to adopt rules. Tn other words, where the danger is apparent to all, and the duty of the servants to avoid such danger is manifest, no rules are required. 18 R. C. L. 573, 574, section 80.

In Boyer v. Eastern Ry. Co., 87 Minn. 367, 92 N. W. 326, it is held that the ordinary labor of unloading logs from a freight car is not attended with extra hazards nor involved in such complicated or obscure conditions as to require the master engaged therein to formulate rules for the conduct of his servants -in the performance of their labor. In that case the servants were engaged in unloading logs seventy feet long from cars, which was done by means of skids; one set of skids leaning from the car to the ground and another set from the ground still further outward.

In Olsen v. Northern Pacific Lumber Co., 100 Fed. 384, 40 C. C. A. 427, decided by the circuit court of appeals of the ninth circuit, the master was engaged in the operation of a sawmill, and among other employees was a sawyer who had charge of operating the carriage. The plaintiff, Olsen, Avas an off-bearer on the carriage, and was hurt because of the negligent act of the sawyer Avho started the carriage and caused it to run against the plaintiff when he should have Avaited until the plaintiff had gotten into a position of safety. The saAvyer and plaintiff, his off-bearer, were therefore felloAV servants. The plaintiff sought to hold the master liable because the latter had not adopted any rules or regulations with reference to the duties of his servants in that situation. Touching this question, the court said:

“The contention that the defendant should have directed Rearick as sawyer by rules and regulations to observe care toward the plaintiff as off-bearer cannot be sustained. To observe such care was essentially Rearick’s duty, assumed in and about his employment. The business was not complex. There was no evidence that it was customary in saw-mills to direct employees by special rules, and it could not be so held as a matter of law or submitted to the jury to decide without evidence. In complex employments like railroads, rules have been held to be necessary. To require them in the simpler employments would only embarrass them without useful effect.”

Under the undisputed facts in this case there was no complexity whatever in the situation appellee and his fellow servant, Boles, were in when the injury occurred. The danger to appellee in the conduct of his fellow servant, Boles, in throwing the log down on the ramps while appellee was engaged in adjusting the skids was manifest. It was an act about which there could be only one opinion. No rule or regulation was necessary. There was only one course to pursue, which was apparent, and that was for the fellow servant, Boles, to either wait until appellee had readjusted the skids before throwing the timber down, or warn appellee of his purpose in time for the latter to reach a place of safety. The only reasonable- rule the appellant could have promulgated was simply that, and nothing-more, and, when appellant had done so, appellee and his fellow servant, Boles, would only have been informed of what they already knew.

Appellee, to sustain his contention, relies on the Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797. It was held in that case that a servant, while working on the inside of the hull of a ship and in ignorance of the fact that boring with an auger was being done by employees from the outside at the point at which he was working, who was struck by the auger being driven through the side of the ship by such employees on the outside, and it appeared that the employer could have feasibly adopted and used a system of giving notice to the employee on the inside of the place of boring, that the employer was negligent in not adopting such rules, and therefor the failure to do so resulted in the employer not providing a safe place for such servant on the inside to work. It is apparent at a glance that that is a very different case from the present case. In that case the servant on the outside of the ship who caused the injury was ignorant of the danger of the servant on the inside who was injured, and the latter was ignorant of and had no means of ascertaining the danger to which he was subjected. In the case here appellee and his fellow servant, Boles, were in full view of each other; each by the exercise of the simplest caution could have seen what the other was doing; both knew that for the fellow servant, Boles, to turn the piece of timber down on the ramps while appellee was replacing the skids was most dangerous to the latter. We therefore have a case here where the place was entirely safe, provided the fellow servant, Boles, performed his duty. On the contrary, it could only be unsafe if he failed to perform his duty; in other words,, a case where appellee’s place of work was reasonably safe and he was injured alone through the negligence of his fellow servant, Boles.

It is argued, however, on behalf of appellee that some rule was necessary for the government of appellee and his fellow servant, Boles, in the performance of their duties; at least that, it was a question for the jury whether such rule or regulation was necessary because the witness Frank Tatum, superintendent of appellant’s mill plant, admitted that the work they were engaged in was dangerous, and such a rule was necessary. The testimony of this witness, however, was a mere matter of opinion. Under the facts of this case it is entitled to no weight whatever as evidence. How could any rule have made appellee’s place of labor any safer? Without any rules the fellow servant, Boles, knew exactly what his duty was.. He admitted that ou the witness stand. All persons would agree at once without any rule precisely what course the fellow servant, Boles, ought to have pursued. What use is there for a rule requiring a person not to do a thing which is manifestly eminently dangerous to the life or limb of another? We see none. It was a situation without any complication. There was no room for opinion evidence.

It follows from these views that the trial court should have directed a verdict for appellant.

Reversed, and judgment here for appellant.