Batson Hatten Lbr. Co. v. Thames , 147 Miss. 794 ( 1927 )

^* Corpus Juris-Cyc. References: Master and Servant, 39CJ, p. 442, n. 32; p. 840, n. 4; On liability of master for injury to servant who lifts or carries heavy objects under orders of master, see annotation in 25 L.R.A. (N.S.) 362; 10 A.L.R. 1399; 18 R.C.L. 705; 3 R.C.L. Supp. 843; 4 R.C.L. Supp. 1201. This is an appeal from a judgment for damages alleged to have been sustained by the appellee because of the negligence of the appellant.

The appellant is a lumber company, and the appellee was employed by it as foreman of a crew of men whose duty it was to load cars with lumber, and to push trucks loaded with lumber from one part of the appellant's yard to another. These trucks ran on tracks. The crew assigned to the appellant consisted of six, seven, or eight persons, just which is not clear, some of whom were boys. On the occasion in question, the appellee, assisted by three members of his crew, was pushing a truck loaded with lumber along a track which connected with another track onto which the truck was to be pushed. The truck had a flat wheel, and at the point of connection between the tracks, the one on which the truck was to be pushed was slightly elevated above the other. When the truck struck the elevated track the flat portion of its wheel seems also to have been on the rail, resulting in the necessity for greater effort to move it forward and onto the elevated track. The existence of the flat wheel and of the elevation in the track were known to the appellant.

In addition to the three members of his crew who were assisting him in pushing the truck, the other member thereof was present, but did not assist in actually pushing the truck. Why the others were absent does not appear though they seem to have been in the vicinity.

Under ordinary conditions the number of persons assigned to the appellee was sufficient for pushing the truck, provided they were men of average strength and "pushing" ability, but, according to his evidence, the flat wheel and the elevated track necessitated twelve or fifteen men therefor.

In endeavoring to push the truck forward, and onto the elevated track, the appellee says that he "exerted an extraordinary and unusual amount of strength," resulting in the infliction on him of a rupture or hernia.

The appellee was provided with a "pinch bar to prize these trucks to get them off the flat wheels," but no use was here made thereof. The evidence seems to indicate that the appellee was under no duty, himself, to push, but only to supervise his crew in so doing. But this fact, if such it is, will be left out of consideration, and we will assume that in assisting in pushing the truck the appellee was discharging one of the duties of his employment.

The court below refused to direct a verdict for the appellant.

There was a former trial of this case which resulted in a judgment for the appellee, and it was appealed to this court and reversed because of the giving of a certain instruction. Thames v. Batson Hatten Lumber Co., 143 Miss. 5,108 So. 181. In reversing the case, the court did not consider or decide the right of the appellant to a directed verdict.

Assuming that the appellant was negligent with reference to the flat wheel and the elevation in the track, the question for decision is, was, or could, the jury find that such negligence was the proximate cause of the appellant's injury?

Three facts enter into a determination of this question: First, The appellee did not use the pinch bar, and thereby facilitate the moving of the car; second, he was under no duty to move the truck, unless assisted in so doing by all the members of his crew, assigned to him by the appellant for that purpose; and, third, he was under no duty to put forth any extraordinary effort to move the truck, for "it is the general rule that a servant is the best judge of his own physical strength and in the absence of coercion compelling him to overtax that strength, it is his duty not to overtax it." Williams v. Kentucky River Power Co.,179 Ky. 577, 200 S.W. 946, 10 A.L.R. 1396.

We will leave out of consideration the first of these facts, and decide the question on the other two.

It may be that the truck could not have been easily moved had all the members of the crew assigned to the appellee for that purpose assisted him in so doing, but he was under no duty to try to move it without them, and his attempt so to do was a voluntary act on his part without which the injury to him could not have been inflicted. Moreover, the defects in the track and truck and the absence of some of the members of the appellee's crew were, at most, merely the causa sine qua non of his own injury, but his own imprudence in voluntarily attempting to move the truck under the circumstances and "exerting an extraordinary and unusual amount of strength" in so doing was the causa causans, the proximate cause of his injury, for which he, alone, must be held responsible.

The judgment will be reversed, and judgment will be here rendered for the appellant.

Reversed, and judgment for the appellant.