Medlin Milling Co. v. Mims , 173 S.W. 968 ( 1914 )

I cannot agree with my Brethren in the disposition of this case, nor in some of the conclusions reached in the majority opinion. In the first place, I cannot concur in the statement contained in said majority opinion to the effect that "not a word was said in objection to the method" (of doing the work). It is true that, so long as those employed in the throwing of the sacks out of the window to the wagon below were careful to give the requisite warning to the appellee below in time for him to remove himself from a place of danger before the sack fell, it was not a dangerous method of performing the business of the master. But that there was a strong probability that the one or ones accustomed to give such warning would, through some momentary forgetfulness, fail to do so, and thereby endanger the life or subject the person of the driver below to injury, and that such danger arose from the inherent manner of performing the work, was apparent to and recognized by both appellee and the vice principal of appellant, Mr. Montgomery, is shown by the fact that on more than one occasion appellee complained to said Montgomery of the dangerous method of performing the work, calling the attention of said Montgomery to the extreme probability of the occurrence of just what did occur, and "that he was likely to get somebody killed there some time, and Mr. Montgomery said that he realized that it was dangerous." (S. F. 7.)

Since the vice principal realized the dangerous method of performing this service, and that an entirely safe method could be employed at a very moderate cost, the familiar rule of law that the master is not bound to presume that a fellow servant of an employé will be negligent is not applicable. In this case he did recognize the strong probability of a fellow servant failing to give the required warning, and that serious injury would result to appellee or others engaged in receiving the sacks from the window above. That appellee did not assume the risk incident to this method of performing the work is shown beyond question. Mr. Montgomery had promised to remedy the defect, and had stated that Mr. Gladney, one of the "higher-ups," referred to in the majority opinion, had also promised to have a safer method invoked and employed. Appellee had a right to rely on this promise for a reasonable length of time. He testified that he would not have continued in this part of his employment but for the reliance on such promise.

In spite of some language in the majority opinion seeming to question Mr. Montgomery's authority to bind the defendant by such promise, and seeming to negative the idea of his being a vice principal, it is believed that, so far as the record discloses, he undoubtedly was vested with such authority. The plaintiff alleged in his petition that said Montgomery was defendant's vice principal, and this allegation is nowhere denied in the pleadings of defendant nor contradicted by any evidence offered by it. The case was tried and submitted upon that theory, and no assignment of error is predicated upon any error of the trial court in this respect. Therefore it is justifiable to assume that defendant admitted the truth of such allegation.

All these questions involving the negligence vel non of the defendant in failing to use ordinary care to provide plaintiff a safe place to work, the giving or not of the promise by Montgomery to remedy the defect complained of, the contributory negligence or not of the plaintiff in continuing in such employment after the giving of such promise, etc., were fully covered in the charge of the court, and not an assignment of error is offered complaining of the giving of any charge or the failure to give any charge, save the peremptory instruction submitted on behalf of defendant.

That appellee's fellow servant, Sheffield, was negligent, cannot be gainsaid, but the jury found, as shown by their verdict, that the defendant was also guilty of negligence in failing to furnish plaintiff a reasonably safe place in which to work, and that such negligence was the proximate cause of the injury complained of. It is then the well-recognized rule of law that, if the negligence of a fellow servant and the negligence of the master are both the concurring proximate causes of an injury to a servant, the master is liable.

It is regretted that lack of time prevents a fuller discussion and investigation of these matters upon which this dissenting opinion is predicated, but the writer is forced to content himself with these observations. It is believed that the action of the trial court in refusing to give the peremptory instruction asked should be sustained, and the judgment affirmed.