Opinion
No. 30707.
October 2, 1933. Suggestion of Error Overruled October 30, 1933.
1. MASTER AND SERVANT.
Employee at gasoline service station held not to have assumed risk of injury from stumbling over exposed air pipe (Code 1930, section 513).
2. APPEAL AND ERROR.
Reviewing court has no authority to review verdict for excessiveness, in absence of motion for new trial assigning that objection.
3. NEGLIGENCE.
Evidence of subsequent repairs or betterments is generally inadmissible in action for injuries sustained in dangerous place.
4. EVIDENCE.
Evidence in action for injuries held admissible to show that repairs at place where accident occurred were made subsequent to accident, where photograph, taken after making of repairs, was introduced in evidence.
APPEAL from the Circuit Court of Prentiss County.
Winchester Bearman, of Memphis, Tenn., and Creekmore Creekmore and E.C. Sharp, all of Jackson, for appellant.
The proof fails to show that the appellee was an employee of the appellant, Standard Oil Company of Kentucky, but, on the contrary, shows that J.M. Franks was an independent contractor, and the appellee was employed by him.
W.R. Roger et al. v. Mrs. Wallace Lewis, reported in 144 So. 373.
The proof shows that J.M. Franks operated on the leased premises in addition to the filling station, a general mercantile business, from which he operated a number of peddling trucks and wagons, and that W.M. Franks, appellee herein, was engaged to operate a truck for the sale of produce for the account of J.M. Franks.
Louis Werner Sawmill Company v. Northcutt et al., 161 Miss. 441, 134 So. 156; 18 R.C.L., p. 490; 39 C.J., p. 35; 39 C.J., page 1315, section 1517; Aldrich v. Tyler Grocery Company, 206 Ala. 138, 89 So. 289, 17 A.L.R. 617; Isaacs v. Prince et al., 133 Miss. 195; Hutchinson-Moore Lumber Company v. Pittman, 122 So. 191, 154 Miss. 1; Texas Company v. Brice, 26 F.2d 164; Gulf Refining Company v. Wilkinson (Fla.), 114 So. 503; Union Casualty Surety Company v. Gray (C.C.A. 3), 114 Fed. 422; Crescent Baking Company v. Denton, 147 Miss. 639, 112 So. 21; Bear Creek Mill Company v. Fountain, 130 Miss. 436.
The danger, if any, in this case was obvious and known to the appellee, and therefore there is no liability on the Standard Oil Company.
Wilbourn v. Charleston Cooperage Company, 127 Miss. 290, 20 So. 9; 20 R.C.L., pp. 55 to 57, inclusive, sections 51 and 52; Woodland Gin Company v. J.C. Moore, 103 Miss. 447, 60 So. 574; Pietri v. L. N.R.R. Co., 152 Miss. 185.
"No precautions are necessary where the danger is obvious and unconcealed, or known to the person injured."
Hunnewell v. Haskell, 174 Mass. 557, 55 N.E. 320; Hart v. Grennell, 122 N.Y. 371, 25 N.E. 354; Accousi v. Furniture Co. (Tex.), 87 S.W. 861; Sesler v. Rolfe Coal Co., 51 W. Va. 318, 41 S.E. 216; 45 C.J., p. 869; 20 R.C.L., p. 57; Caniff v. Navigation Co., 66 Mich. 638, 33 N.W. 744; Hoyt v. Woodbury, 200 Mass. 343, 86 N.E. 772; 20 R.C.L., p. 15, sec. 10; George v. Los Angeles R.R. Co., 126 Cal. 357, 46 L.R.A. 829; Mesher v. Osborne, 75 Wn. 439, 48 L.R.A. (N.S.) 917; Bennett v. L. N.R.R. Co., 102 U.S. 577, 26 L.Ed. 235; Newport News R.R. Co. v. Clarke, 6 L.R.A. (N.S.) 905; Bridges v. Jackson Ry. Co., 86 Miss. 584.
Testimony that Standard Oil Company repaired pipe after the accident was inadmissible.
45 C.J., p. 1232, sec. 791; Railroad Company v. Clem, 123 Indiana 15, 23 N.E. 965.
Jas. A. Cunningham, of Booneville, for appellee.
The question of the master's negligence in failing to exercise ordinary care to provide plaintiff, an employee in his service, with a reasonably safe place in which to do his work, is thoroughly established by the record.
Gulf Refining Company v. Nations, 145 So. 327; Kisner v. Jackson, 132 So. 90; Caver v. Eggerton, 127 So. 727; Pan-American Petroleum Corp. v. Pate, 126 So. 480.
Our court is amply supported in its findings in the Nations case by the following additional authorities not referred to there:
The Gulf Refining Company of La. v. Huffman Weakley, 297 S.W. 199; Angell v. White Eagle Oil Refining Co. et al., 210 N.W. 1004; Buckholz v. Standard Oil Co. of Ind., 244 S.W. 973; Standard Oil Co. v. Parkinson, 152 Fed. 681; Magnolia Petroleum Co. v. Johnson, 233 S.W. 680; Anderson v. Standard Oil Co., 264 N.W. 169; Standard Oil Co. v. Regan, 84 S.W. 69; Biggs v. Standard Oil Co., 130 Fed. 199; Waters-Pierce Oil Co. v. Snell, 106 S.W. 170; Ellis v. Republic Oil Co., 110 N.W. 20; Cohn v. Saenz, 211 S.W. 493; Catlin v. Union Oil Co. of Cal., 166 P. 29; Stowell v. Standard Oil Co., 102 N.W. 227.
The matter of sub-agency does not affect the rule, more especially in this case.
Wilcox v. Ruth, 9 S. M. 476 (25 Miss.); Elmyra Co. v. McClure, 36 Miss. 393; Callahan Cont. Co. v. Reyburn, 69 So. 669; 2 C.J., sec. 539, p. 855.
The testimony that the Standard Oil Company repaired pipe after the accident was admissible for the special purpose of showing that the Standard Oil Company maintained and exercised a general control over the pipes, which was being controverted by the defendant at the very time.
Pan-American Petroleum Corporation et al. v. Pate, 126 So. 480; Finkbine Lumber Company v. Cunningham, 57 So. 916; Vaughn v. William F. Davis Sons, 121 S.W. 786; Robertson v. Hill, 31 P. 871; Haygood v. Ogasapian, 112 N.E. 619.
Counsel for defendant assign as error and seriously set up that the cause ought to be reversed because the jury rendered a verdict against the weight of the evidence and contrary to the evidence, and assessed an exorbitant amount of damages against the defendant. The defendant had a way open to it of presenting a motion to the trial judge to set aside the jury's verdict for cause to be shown, and to order a new trial, but it did not do this.
St. Louis San Francisco Railway Company v. Bridges, 125 So. 423.
The defendant urges against the plaintiff's right to recover in this case both contributory negligence and assumption of risk. Assumption of risk was abolished long ago, as evidenced by section 513 of the Annotated Code of 1930.
The common-law doctrine of contributory negligence has been abolished in this state for more than twenty years.
Section 511 of the Annotated Code of 1930.
Argued orally by Wade H. Creekmore and E.C. Sharp, for appellant, and by J.A. Cunningham, for appellee.
Appellee was a servant at an oil and gasoline station, commonly called a service station, operated by appellant through an agent. There was an air pipe which extended across and over the ground adjacent to the gasoline pump, and which at the point of injury in this case was exposed about three or four inches above the ground and for a length of about three feet. This air pipe, according to the evidence, as believed by the jury, was in a dangerous position, in that when an employee called to serve the gasoline pump went to that place in the performance of his duties he would, unless on the alert, be liable to trip his feet on or against this exposed pipe line thus situated and elevated above the ground. On the occasion in question, the servant while engaged in the performance of his duties did trip his feet upon this exposed air pipe and suffered a violent fall and the consequent injuries for which he brought this action and recovered judgment.
We have said that appellant was operating this station through an agent. It is the main contention of appellant, however, that the person there in general charge was not an agent but was an independent contractor, and that appellee was not an employee of appellant but was the servant of said independent contractor. We have carefully examined the several contracts and the pertinent testimony bearing thereon, which, in substance, is undisputed, and we find that the record is so clear and free from doubt that the person in general charge was an agent and not an independent contractor that no value would result in a recital by us of the facts on that point or of the law to be applied thereto. There was no error by the trial judge in so holding as a matter of law and in instructing the jury accordingly, as he did.
It is next argued by appellant that the elevated and exposed situation of the air pipe was well known to appellee, and had been known to him for a long time, and that he therefore assumed the risk of the obvious danger. Under the facts of this case, appellant was the master and appellee the servant of appellant. The injury resulted in whole or in part from the negligence of the master; wherefore under our statute, section 513, Code 1930, the servant cannot be held to have assumed the risk.
Much is said in appellant's brief about the nature of the injury and about the doubt that there was any substantial injury, and upon the point that the verdict is excessive in that regard. We must assume that what has been said by appellant on this subject was by way of inducement, for there was no motion for a new trial; and we have no doubt that learned counsel for appellant were and are well acquainted with the rule that this court is without authority to review a verdict for excessiveness, in the absence of a motion for a new trial assigning that objection as a ground. See St. Louis S.F.R. Co. v. Bridges, 156 Miss. at page 218, 125 So. 423, and cases there cited.
Appellant makes one point that would be well taken except for the state of this particular record. That objection and assignment is that the court admitted evidence that subsequent to the injury appellant had repaired the place and had placed the offending air pipe about six inches underground.
It is the general rule, and the authorities are very nearly unanimous upon it, that where a place, method, or appliance is alleged to have been dangerous and negligently so, and to have been the proximate cause of an injury, evidence that subsequent changes, repairs, or betterments have been made by the person sought to be charged is inadmissible to show antecedent wrong or as an admission of negligence on the particular occasion in question. This rule is founded in public policy, which requires that men should be encouraged to repair and improve, and to take precautions against recurrence of injury, and that they should not be deterred therefrom by the fear that, if they do so, their subsequent acts in that regard will be received in evidence and construed as an admission that they were guilty of a prior wrong or negligence. 1 Wigmore, Evidence, section 283; 3 Jones, Evidence, section 1041; 45 C.J., page 1232.
But this general rule has its reasonable exceptions. One of these is that, where there has been introduced a photograph, taken after the making of the repairs or improvements, evidence may be admitted to show that the repairs and improvements have been subsequently made, and that by reason thereof the photograph does not reveal the exact physical conditions at the time of the accident. 3 Jones, Evidence, section 1043; 45 C.J., page 1235, note 44.
So, in this case, it appears that appellant introduced a photograph taken after the pipe in question had been relaid and placed under the ground. Appellant showed that fact, and, the evidence being admissible to rebut the photograph, such evidence in that state of the record could not be justly excluded.
Affirmed.