Opinion
No. 29259.
March 30, 1931.
1. MASTER AND SERVANT. Evidence held insufficient to present question for jury whether paving contractor failed to furnish reasonably safe place to work to employee engaged in unloading asphalt from open railroad cars.
Contract between paving contractor and employee called for latter to unload asphalt from railroad cars at stipulated rate per ton, employee to furnish his own labor, but to use tools belonging to contractor. On very cold morning, asphalt mixture on cars to be unloaded was frozen to depth of several inches. Employee went to nearby toolhouse to look for picks but, on finding none, secured crossbars and shovels. Asphalt was piled in cars so that middle was higher than the edges. When frozen asphalt began to melt, it became slippery, and employee while using crowbar as a lever to pry asphalt loose slipped and fell from car to ground resulting in injuries complained of.
2. MASTER AND SERVANT.
Master must use ordinary care to furnish servant with tools and appliances suitable for performance of service required.
3. MASTER AND SERVANT.
Master is not bound to furnish servant with safest tools and appliances obtainable.
4. MASTER AND SERVANT.
Evidence held insufficient to present question for jury whether paving contractor failed to furnish reasonably safe tools to employee engaged in unloading asphalt from open railroad cars.
APPEAL from circuit court of Prentiss county; HON.C.P. LONG, Judge.
Affirmed on the cross-appeal, and reversed on the direct appeal, and judgment entered for the defendant.
J.A. Cunningham, of Booneville, for appellant.
It was not incumbent upon the appellant to give any warning and instructions to appellee regarding any dangers or perils connected with the work in which he was engaged. Such dangers were ordinarily hazards, patent to the average workman, or such as were easily discoverable in the exercise of ordinary intelligence and care.
Appellee was a man experienced in unloading this asphalt. He made his own selection of tools and there is not the slightest hint that there was any defect in the crow bar used to prize up the frozen surface. He assumed the risk.
Y. M.V.R.R. Co. v. Downs, 67 So. 962; Miss. Central R.R. Co. v. Bennett, 71 So. 310; Wheeler v. Laurel Bottling Works, 71 So. 743; Ingram Day Lumber Co. v. Joh, 64 So. 934; Crossett Lbr. Co. v. Land, 94 So. 15; Lambert v. Mississippi Central R.R. Co., 120 So. 177; Vehicle Woodstock Co. v. Bowles, 128 So. 98.
The crowbar is a simple tool and appellant is not liable for any defect therein.
Warsaw Southern Lumber Co. v. Cooley, 94 So. 228; Sterling Coal Coke Co. v. Fork, 40 L.R.A. (N.S.) 837; Bear Creek Mill Co. v. Fountain, 94 So. 230; Allen Gravel Co. v. Yarbrough, 98 So. 117.
Friday Windham, of Booneville, for appellee.
Liability of a master is predicated upon his failure to exercise due diligence or ordinary care in furnishing his servant proper or suitable tools with which to perform the task assigned, or in his lack of furnishing necessary tools to perform such duties and if the proof shows negligence upon the part of the master in the performance of this non-delegable duty, he is liable to his servant in damages for whatever damages may be sustained by reason of such negligence or failure.
Hand v. Boatner, 130 Miss. 292, 94 So. 162; Wallace v. Tremont G.R.R. Co., 74 So. 179; 39 C.J. 326, sec. 447.
A master cannot be relieved from liability for injury to a servant on the ground that the instrumentality causing the injury was a simple appliance and that danger did not inhere in the appliance itself, but arose from the manner in which it was used, where the injury occurred from the use of the appliance in the manner that the master expected and required the servant to use it, nor will he be relieved of liability where the defect is of a kind that reasonably imports menace of substantial injury.
39 C.J. page 342, sec. 462.
The master is presumed to know, and must know, and his knowledge is superior to that of his servant, as to what is the proper method by which the work is to be performed, or as to what are the proper tools with which to perform the work.
Bliesner v. G. Riesmeyer Distilling Co., 174 Mo. App. 139, 157 S.W. 980; Winborne v. Inter-State Cooperage Co., 178 N.C. 88, 100 S.E. 194.
The general rule is that a master owes it to his servant to furnish him with a reasonably safe place in which to do his work, and is liable for injuries occasioned by his negligence in this regard.
Mobile Ohio R.R. Co. v. Clay, 125 So. 819; Anderson v. McGrew, 122 So. 492; Planters Oil Mill v. Wiley, 122 So. 365.
The appellee, Ervin Morris, instituted this suit in the circuit court of Prentiss county, Mississippi, against appellant, the Morgan Hill Paving Company, seeking to recover damages for personal injuries alleged to have been sustained by him as a result of negligence of the appellant in failing to furnish him a reasonably safe place to work, and provide him with reasonably safe, proper, and suitable tools and appliances with which to do work which he was employed to perform for the appellant. To the declaration filed by the appellee, the appellant interposed a plea of the general issue, and gave notice thereunder that it would offer evidence to prove that the appellee was an independent contractor, and that the tool he was using at the time he received his injury was a simple tool, and consequently it was not liable for any injury resulting from the use thereof. Upon the proof offered the court refused to submit to the jury, as an issue of fact, the question of whether or not the appellant had furnished the appellee a safe place to work, but submitted the issue as to whether or not it had furnished him reasonably safe and suitable tools with which to work. Upon this issue the jury found in favor of the appellee, and fixed the amount of his damages at two thousand dollars; and from the judgment entered in pursuance of this verdict, the Morgan Hill Paving Company prosecuted an appeal; while the appellee prosecuted a cross-appeal, assigning as error the refusal of the court to submit to the jury the question of whether or not the appellant negligently failed to furnish the appellee a safe place to work.
The proof offered by the appellee was, in substance, as follows: The appellant was engaged in paving certain streets in the town of Booneville, and had in its employ a number of laborers, including the appellee. The material used in paving these streets was a lime-asphalt mixture, which was shipped into the town of Booneville in open railroad cars, and placed on a side track for unloading. After the appellee had been employed in this paving work for about two months, at a wage of twenty-five cents per hour, he entered into a contract with the appellant to unload the asphalt from the railroad cars, for which he was to be paid at the rate of ten cents per ton. Under this contract the appellee was to furnish his own labor, and unload the asphalt for the sum of ten cents per ton, and in doing this work he used tools belonging to the appellant. When he was not engaged in unloading cars, he returned to his work as a day laborer on the streets. The appellant reserved the right to unload any cars that the appellee was unable to unload before demurrage accured thereon. After the appellee had been engaged for about four months in unloading these cars as they arrived, a number of cars arrived in one lot or shipment, and he was directed to unload them as quickly as possible. He thereupon employed two assistants, and on the following morning, at about seven o'clock, he and these assistants went to the cars to begin work. It was a very cold morning, and the asphalt mixture was frozen to a depth of several inches. The appellee testified that he went to the nearby toolhouse to secure tools to work with; that he looked for picks, but found none, and secured crossbars and shovels. He further testified that the asphalt was piled in the cars so that it was higher in the middle than near the edges; that he climbed on a car, and began work with a crowbar; that when the frozen asphalt began to melt, it became slippery; that he was using the crowbar as a lever to prize the asphalt loose, and while he was pressing down on the crowbar in an effort to do so, a large piece thereof unexpectedly broke loose and caused him to slip, and fall from the car to the ground. This fall resulted in very serious injury to the appellee. The appellee and one witness testified that for the purpose of breaking up this asphalt a pick was a safer tool than a crowbar. The appellant's foreman testified that both crowbars and picks were used in this work, and that he was unable to say which was the safer tool for that purpose.
The appellant first contends that the appellee was an independent contractor, and that no relation of master and servant existed between the appellant and the appellee; but in view of the conclusion we have reached upon other assignments of error, it will be unnecessary to decide that question, and we have not set forth in particular detail the evidence bearing on it.
Conceding, for the purpose of this decision, that the relation of master and servant existed between the appellant and appellee, we do not think the proof is sufficient to sustain a finding that the appellant was guilty of any actionable negligence. The appellee was employed to unload the cars which were loaded and delivered to the appellant by the railroad company. The appellee was experienced in this work, and the proof fails to show any negligent failure on the part of the appellant to furnish him a reasonably safe place to work; and the court below committed no error in refusing to submit that issue to the jury.
The appellant next contends that there can be no liability against the appellant for a failure to furnish proper and suitable tools, for the reason that the tools furnished were simple tools, for a defect in which the master is not liable. It it not the theory of the appellee that there is any liability on account of any defect in the simple tools furnished to appellee by the appellant; but that the tools that were furnished were not proper and suitable for the performance of the work required of the appellee. The proof, however, does not show that a crowbar was not a reasonably safe and suitable tool for the work. The only evidence upon the point is to the effect that, under the conditions existing at the time of the injury, a pick would have been a safer tool. The master must use ordinary care such as men of ordinary prudence employ, in furnishing his servant or employee with tools and appliances suitable for the performance of the service required of him; but he is not bound to furnish his employee with the safest tools and appliances obtainable. Howd v. Miss. Cent. R. Co., 50 Miss. 178; Kent v. Y. M.V.R. Co., 77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 534. In the absence of proof from which the jury could find that the appellant was negligent in failing to furnish reasonably safe and suitable tools for the performance of the work required of the appellee, the dangers incident to the performance of the work were the ordinary risks assumed by him; and, consequently, we think the peremptory instruction requested by the appellant should have been given. The judgment of the court below will therefore be affirmed on cross-appeal and reversed on direct appeal, and judgment will be entered here in favor of the appellant.
Affirmed in part and reversed in part.