Summary
In Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912 (1945), an employee was injured while attempting to use a box, which he was carrying, to push open a swinging door and the door struck a sack of towels on the far side, knocking the box back into the employee.
Summary of this case from Evans v. JourneayOpinion
No. 35850.
April 23, 1945.
1. MASTER AND SERVANT.
Employer need not furnish and maintain perfect appliances or even the best and safest.
2. MASTER AND SERVANT.
Employer need not exercise any care to avoid injuries not likely to occur, but his obligation is to use reasonable care, and what is reasonable care is largely determined in each case by nature, condition and extent of danger of instrumentalities furnished to and maintained for servant in his work, and the greater or lesser the danger the greater or lesser is the degree of care required.
3. MASTER AND SERVANT.
Employer need not make the appliance with which or place in which to work absolutely safe, but reasonably safe, the nature, condition and extent of danger considered.
4. MASTER AND SERVANT.
Employer is liable only for want of reasonable care in guarding against injury which may be reasonably foreseen as likely to occur when employee uses instrumentality in usual way that such instrumentality is intended to be used, and if employee adopts another method or way, injury is one for which he and not employer is responsible.
5. MASTER AND SERVANT.
Employer need not guard against improper or unusual methods of use of instrumentality by an employee unless the improper use has become habitual among employees, and employer knows it.
6. MASTER AND SERVANT.
The rules governing employer's liability for injuries to employee must have a practical, not a technical, application.
7. EVIDENCE.
The court will take judicial notice of proper manner of use of swinging doors which is, that when it is desired to pass through such door, user approaches it at an ordinary gait not at a run, and puts one hand against the facing on side opposite the hinges, gives a push or shove, and holds it open until passage is made.
8. MASTER AND SERVANT.
Where store employee used box of cheese which he was carrying as instrumentality with which to open swinging door, ramming it in haste causing his injury, employee's improper use of the door and not alleged improper use of sack near the door was proximate cause of injuries, and hence employer was not liable therefor.
9. NEGLIGENCE.
Although one may be negligent, yet if another acting independently and of his own volition wrongfully or negligently puts in motion an intervening cause which efficiently thence leads in unbroken sequence to injury, the latter is the "proximate cause".
10. NEGLIGENCE.
Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion negligent and wrongful agency by or through which injuries are inflicted, is not the "proximate cause" thereof.
11. NEGLIGENCE.
When proximate cause of injury is employee's failure to use the instrumentality in a normal or proper way, such failure goes to entire cause of action, not to a mere diminution of damages.
APPEAL from the circuit court of Alcorn county, HON. THOS. H. JOHNSTON, Judge.
W.C. Sweat, of Corinth, for appellant.
The appellees failed to use reasonable care to furnish appellant a reasonably safe place to work.
Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Hardy v. Turner-Farber-Love Co., Inc., 136 Miss. 355, 101 So. 489; F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Jefferson v. Denkmann Lumber Co., 167 Miss. 246, 148 So. 237; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Cumberland Tel. Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349.
Appellees failed to keep premises free from dangerous condition by which appellant was liable to be injured while absorbed in the duties of his employment.
Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471; Randolph Lumber Co. v. Minchew, 172 Miss. 535, 159 So. 849; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680.
The appellant did not assume the risk.
Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Gow Co., Inc., v. Hunter, 175 Miss. 896, 168 So. 264; Wilbe Lumber Co. v. Calhoun, supra; Edwards v. Haynes-Walker Lumber Co., 113 Miss. 378, 74 So. 284; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Code of 1930, Sec. 513, Code of 1942, Sec. 1456.
Contributory negligence is not a bar to recovery when the master is negligent.
Hardy v. Turner-Farber-Love Lumber Co., Inc., supra; Crosby Lumber Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 854; Yazoo M.V.R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013; Mississippi Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; C.C. Moore Construction Co. v. Hays, 119 F.2d 742, 86 L.Ed. 515; Code of 1930, Sec. 511, Code of 1942, Sec. 1454.
It was not necessary that appellees should have anticipated that this particular injury would happen.
Tri-State Transit Co. v. Martin, supra; Cumberland Tel. Tel. Co. v. Woodham, supra; Stricklin v. Harvey, supra; F.W. Woolworth Co. v. Freeman, supra; Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798.
Evidence of appellant and all reasonable inferences to be drawn therefrom are considered proven against appellees.
New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Stricklin v. Harvey, supra.
Even though the negligence of appellees was doubtful it is still a case for the jury.
Mississippi Cent. R. Co. v. Mason, 51 Miss. 234; Southern Railway Co. v. Floyd, 99 Miss. 519, 55 So. 287; Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244.
Ely B. Mitchell, of Corinth, and Clarence Clifton, of Memphis, Tenn., for appellee.
Defendant used reasonable care to furnish plaintiff reasonably safe place to work.
Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Wausau Southern Lumber Co. v. Cooley, 130 Miss. 333, 94 So. 228; Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Brown v. Coley, 168 Miss. 778, 152 So. 61; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Middleton v. Faulkner, 180 Miss. 737, 178 So. 583.
The plaintiff's injury could not reasonably be anticipated and the defendants are not liable.
Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; Jabron v. State, 172 Miss. 135, 159 So. 406; Wilson Co. v. Holmes, supra; Supreme Instruments Co. v. Lehr, 190 Miss. 600, 199 So. 294, 1 So.2d 242.
Plaintiff made his place of work unsafe by his own actions.
Hines Lumber Co. v. Dickinson, 155 Miss. 674, 125 So. 93.
Where there is no negligence shown against the defendants and the contributory negligence of the plaintiff is the sole cause of his injuries, there can be no recovery.
Ragland v. Native Lumber Co., 117 Miss. 602, 78 So. 542.
It was plaintiff's duty to care for himself against obvious dangers.
McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Ross v. Louisville N.R. Co., 178 Miss. 69, 172 So. 752; Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532.
Defendants are not liable for temporary dangers.
Allen Gravel Co. v. Curtis, 173 Miss. 416, 161 So. 670; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.
All that is required of a master is that he exercise reasonable care for the safety of his servants, and when he has done so, he is not liable for injuries to his servant caused by momentary forgetfulness of the ordinary hazard of the employment. Momentary forgetfulness may, in an emergency, exclude negligence on the part of the servant, but it does not create liability where the master has exercised the required degree of care for his safety.
Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764.
Plaintiff's proof does not bring his case within the allegation of negligence in his declaration, and he is not now entitled to recover.
Eagle Cotton Oil Co. v. Pickett, supra.
Appellee operated a grocery store and therein a meat market in Corinth. Appellant was employed therein as the butcher. The store was divided into two compartments, the front being the sales room, and to the rear the storage room. Between these rooms was an ordinary swinging door. When supplies were needed in the sales room, the employe immediately concerned would go through the swinging door to the storage room, and bring what was needed back through the same door.
For some time prior to the injury here complained of, a sack for the placing of soiled aprons and towels used by the employes was hung about five to seven inches from the opening side of the swinging door, and occasionally this sack would become so full of these soiled articles that it would distend beyond the facing and into the path of the door in its swing, or sometimes an apron or towel would protrude from the sack in such manner as to interfere with the free movement of the door.
On the occasion in question appellant needed a replenished supply of cheese at his counter, and the store being crowded with customers he went hastily to the storage room, procured a box of cheese about sixteen inches square, and taking it by a corner in each hand, with one corner next to the lower part of his body, and the opposite corner to the front, he went hastily to the door, using the corner of the box opposite his body as a means of contact with the door, and it happened, either by the distention of the sack or by a towel or apron protruding therefrom, that the door was prevented from opening, with the result that the corner of the box next to appellant's body rebounded in such a way as to cause the injury of which appellant complains. He brought his action alleging that his employer had failed in its duty to him to furnish and maintain a safe place to work, which we will consider as being a complaint that the employer failed in its duty to furnish and maintain safe instrumentalities. On the trial the court granted the peremptory charge requested by the employer.
Appellee has advanced several points or courses of argument in support of the judgment. One of these, in effect, is that the sack mentioned was solely for the convenience of the employes, was a matter about which they were primarily concerned, and for the maintenance and supervision of which they and not the employer were charged, and that, moreover, in all the weeks and months that the arrangement had prevailed no injury or suggestion of injury from it had ever occurred, and the further course of argument is to invoke the rule stated in Vol. 2, A.L.I. Rest. Torts, Sec. 433, that the employer's conduct is not to be regarded as a substantial factor in bringing about harm to another when after the event and looking back from the harm to the actor's negligent conduct it appears highly extraordinary that it should have brought about the harm.
We turn, however, to familiar principles established by numerous cases in our own reports, cases so numerous that they may be cited by dozens and by scores, and these are that it is not the duty of the employer to furnish and maintain perfect appliances or even the best and safest. He is not obliged to exercise the highest degree of care to avoid injuries, nor any care to avoid injuries not likely to occur. His obligation is to use reasonable care, and what is reasonable care is largely determined in each case by the nature, condition and extent of the danger of the instrumentalities furnished to and maintained for a servant in his work, and the greater or lesser the danger the greater or lesser is the degree of care which must be taken. His obligation is not to make the appliance with which, or the place in which, to work absolutely safe, but reasonably safe, the nature, condition and extent of the danger considered. And withal the employer is liable only for the want of reasonable care in guarding against injuries which may be reasonably foreseen as likely to occur when his employe uses the instrumentality in the usual and normal way that such an instrumentality is intended to be used and if the employe adopts another method or way, the injury is one for which he and not the employer is responsible. It is not the duty of the employer to guard against improper or unusual methods of use by an employe, unless the improper use has become habitual among employes and the employer knows it. And all these rules are to have a practical, and not a technical or pedantic or censorious, application.
Swinging doors are of common use not only in business houses but in dwellings. Judicial notice is to be taken, therefore, of the proper or normal manner of their use, which is that when it is desired to pass through such a door, the user approaches it at an ordinary gait, not in a run, and puts one hand against its facing on the side opposite the hinges, gives a push or shove, and holds it open until passage is made. If in so doing the door fails to open for any reason, whatever the reason, all that would result would be a slight jolt to the user and a slight inconvenience, but no injury of any consequence as to extend beyond the rule de minimis, or if any real injury should happen it would be only as a possibility and not a likelihood, as to which all that is necessary to say is to cite Illinois Central R. Co. v. Bloodworth, 166 Miss. 602, beginning with the last paragraph on page 617, 145 So. 333.
If when the user approaches the swinging door he is carrying an article which requires the use of both hands in the carriage, the proper and normal manner of use of the door is to turn the user's back or side to the door, and thus push it open, and if for any reason, whatever the reason, the door fails to open all that would result, in such a case, would be an inconvenience without even a possibility of an injury, since in turning the user's back or side to the door his forward progress would have come almost to a halt. What the user did here, however, was, as stated, to use the box of cheese which he was carrying as the instrumentality with which to open the door, ramming it in haste against the door. This is the case that is before us and it was an improper use and procedure even if he had presented the square side of the box of cheese against the door, with the opposite square side against his body, which if done he would still not have been hurt; but he went further and took the corners of the cheese box in each hand and rammed one of the other corners against the door with the fourth corner against his body and it was this corner held against his body that produced the hurt.
The crucial question, then, is this: Would the injury complained of here have occurred had the employe used the instrumentalities in the proper and normal manner, to which the answer is in the negative; and since it was the employe who put in motion and followed through the improper use, the improper use became the proximate cause, relegating the condition of the sack to the position of a remote cause. Although one may be negligent yet if another acting independently and of his own volition, wrongfully or negligently puts in motion another and intervening cause which efficiently thence leads in unbroken sequence to the injury the latter is the proximate cause and the original negligence is relegated to the position of a remote and, therefore, a nonactionable cause. Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the negligent and wrongful agency by or through which the injuries are inflicted, is not the proximate cause thereof. Compare Mississippi City Lines v. Bullock, 194 Miss. 630, 639, 13 So.2d 34, 145 A.L.R. 1199.
Appellant appeals to the excuse of momentary forgetfulness. This is an issue which concerns contributory negligence, whereas when the proximate cause of the injury is the failure of the employe to use the instrumentality in the normal or proper way, that failure goes to the entire cause of action, not to a mere diminution of damages. Compare Aponaug Mfg. Co. v. Hammond, 185 Miss. 198, 187 So. 227.
Affirmed.