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  • Green, Green Jackson, of Jackson, for appellant. We urged in the argument for the directed verdict that this case on the instant record was controlled by that of Dr. Pepper Bottling Company v. Gordy, 174 Miss. 392, 164 So. 236, on the theory that it was the burden of the plaintiff in the instant case to prove that the injury of which he was complaining was the proximate result of some defect in the condition of the runway, what the nature of that defect was, and that such defect was one that might have been ascertained and discovered by the exercise of reasonable care of the employer. We urged in our argument and submit that it is the true rule, applicable in the instant case, that the master is not an insurer of an instrumentality furnished to the servant, but is only required to use reasonable care to see that such instrumentalities are reasonably safe. Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236. Our defense was, is, and continues to be that there is no evidence to support and sustain the allegations of the declaration for the reason that as found for the defendant, Louis Hannah, this appellant was not guilty of any actionable wrong as charged in the declaration, because the runway was not shown by any proof to have been for any appreciable length of time prior to the fall of the plaintiff in any negligent condition, or in any need of repair or that such condition as the plank may have been in had existed for such a length of time that this defendant could have known of the condition of the runway that proximately contributed to the injuries that plaintiff complained of. Furthermore, the proof for the plaintiff and on the entire record affirmatively shows that the condition of this runway in question just prior to the fall was not any different from the condition that had existed for a period of sixteen years prior to the time of the injury and that it was the duty of the plaintiff to have reported any discoverable defect to the appellant for necessary repairs. There was nothing in the evidence to show what caused the plaintiff to fall, whether it was his own act in springing on the board to attempt to get on top of the double conveyor, whether it was that the plank in some manner had been misplaced, or whether from some other unknown reason the plank and the plaintiff fell to the ground. There was nothing in the evidence or on this record that in any manner indicated that this defendant knew, or could have known, that there was anything wrong with the runway or that there was any requirement to repair, or that it was in fact in an unsafe condition. Eagle Cotton Oil Co. v. Sollie (Miss.), 187 So. 506. The master is not an insurer of the safety of the instrumentality furnished to the servant, nor of the place of work, and is only required to use reasonable care to furnish reasonably safe places to work. The master is not required to furnish the newest, best, and safest machinery, appliances, and place to work, but only such as are reasonably safe. It is absolutely necessary that actual or constructive notice of an alleged defect in a place of work must be not only pleaded, but shown by reasonably credible evidence. That if the one complaining was employed to report a condition or to make it safe and fails so to do, such failure cannot be attributed to the master. That unless it be shown that the equipment furnished is dissimilar from that used in other enterprises under similar conditions, then the master is not negligent because of the type of equipment furnished, although there may be safer equipment that could have been or probably might have been furnished. That unless the unsafeness of a particular type of equipment is so obvious that impartial persons could not well disagree upon the issue, the master has not been negligent. Austin Austin, of Jackson, for appellee. The declaration charges that appellant was guilty of negligence in failing to use reasonable care to provide for appellee a reasonably safe place to work, and the proof in evidence greatly preponderates to establish negligence as charged. It is the non-delegable duty of the master to use reasonable care to furnish the servant a reasonably safe place to work and to maintain the place as a reasonably safe one, and said duty is a continuing one. Kinkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Seafood Co. v. Alves, 117 Miss. 1, 77 So. 857; Stricklin v. Harvey (Miss.), 179 So. 345; Adams v. Hicks (Miss.), 178 So. 484; Scott Burr Stores Corp. v. Morrow (Miss.), 180 So. 741. In view of the evidence adduced in the trial of this case, the question of whether or not the appellant exercised reasonable care to provide appellant with a reasonably safe place to work was for the jury to decide.
Judges
  • Ethridge, P.J., delivered the opinion of the court.
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  • Green, Green Jackson, of Jackson, for appellant. We urged in the argument for the directed verdict that this case on the instant record was controlled by that of Dr. Pepper Bottling Company v. Gordy, 174 Miss. 392, 164 So. 236, on the theory that it was the burden of the plaintiff in the instant case to prove that the injury of which he was complaining was the proximate result of some defect in the condition of the runway, what the nature of that defect was, and that such defect was one that might have been ascertained and discovered by the exercise of reasonable care of the employer. We urged in our argument and submit that it is the true rule, applicable in the instant case, that the master is not an insurer of an instrumentality furnished to the servant, but is only required to use reasonable care to see that such instrumentalities are reasonably safe. Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236. Our defense was, is, and continues to be that there is no evidence to support and sustain the allegations of the declaration for the reason that as found for the defendant, Louis Hannah, this appellant was not guilty of any actionable wrong as charged in the declaration, because the runway was not shown by any proof to have been for any appreciable length of time prior to the fall of the plaintiff in any negligent condition, or in any need of repair or that such condition as the plank may have been in had existed for such a length of time that this defendant could have known of the condition of the runway that proximately contributed to the injuries that plaintiff complained of. Furthermore, the proof for the plaintiff and on the entire record affirmatively shows that the condition of this runway in question just prior to the fall was not any different from the condition that had existed for a period of sixteen years prior to the time of the injury and that it was the duty of the plaintiff to have reported any discoverable defect to the appellant for necessary repairs. There was nothing in the evidence to show what caused the plaintiff to fall, whether it was his own act in springing on the board to attempt to get on top of the double conveyor, whether it was that the plank in some manner had been misplaced, or whether from some other unknown reason the plank and the plaintiff fell to the ground. There was nothing in the evidence or on this record that in any manner indicated that this defendant knew, or could have known, that there was anything wrong with the runway or that there was any requirement to repair, or that it was in fact in an unsafe condition. Eagle Cotton Oil Co. v. Sollie (Miss.), 187 So. 506. The master is not an insurer of the safety of the instrumentality furnished to the servant, nor of the place of work, and is only required to use reasonable care to furnish reasonably safe places to work. The master is not required to furnish the newest, best, and safest machinery, appliances, and place to work, but only such as are reasonably safe. It is absolutely necessary that actual or constructive notice of an alleged defect in a place of work must be not only pleaded, but shown by reasonably credible evidence. That if the one complaining was employed to report a condition or to make it safe and fails so to do, such failure cannot be attributed to the master. That unless it be shown that the equipment furnished is dissimilar from that used in other enterprises under similar conditions, then the master is not negligent because of the type of equipment furnished, although there may be safer equipment that could have been or probably might have been furnished. That unless the unsafeness of a particular type of equipment is so obvious that impartial persons could not well disagree upon the issue, the master has not been negligent. Austin Austin, of Jackson, for appellee. The declaration charges that appellant was guilty of negligence in failing to use reasonable care to provide for appellee a reasonably safe place to work, and the proof in evidence greatly preponderates to establish negligence as charged. It is the non-delegable duty of the master to use reasonable care to furnish the servant a reasonably safe place to work and to maintain the place as a reasonably safe one, and said duty is a continuing one. Kinkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Seafood Co. v. Alves, 117 Miss. 1, 77 So. 857; Stricklin v. Harvey (Miss.), 179 So. 345; Adams v. Hicks (Miss.), 178 So. 484; Scott Burr Stores Corp. v. Morrow (Miss.), 180 So. 741. In view of the evidence adduced in the trial of this case, the question of whether or not the appellant exercised reasonable care to provide appellant with a reasonably safe place to work was for the jury to decide.
Judges
  • Ethridge, P.J., delivered the opinion of the court.
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Smart Summary

MISSISSIPPI COTTONSEED PRODUCTS Co. v. HARRIS.

1. APPEAL AND ERROR.

Where employee based action for injuries on ground that employer by furnishing board on which employee had to walk did not use reasonable care to make a reasonably safe place for employee to work, and in pointing out position, situation, and condition of board, witnesses frequently used the word "here" and "there," Supreme Court which could not obtain a clear picture of situation from record presumed that jury had proper visual evidence to enable them to fully understand the matter.

2. MASTER AND SERVANT.

In action by employee for injuries sustained when he fell from plank which he had to cross while oiling machinery, under evidence that ends of board were not nailed to support, that board had been left loose so that it might be moved from place to place, that employee had requested a new board of the manager, and that employee had been informed that manager would not attend to it until after the season was over, whether employer had used reasonable care to make a reasonably safe place for employee to work was for jury.

Ethridge, P.J., delivered the opinion of the court.

William Dock Harris was an employee of the Mississippi Cottonseed Products Company in a plant at Jackson, Mississippi, and his duties were to oil the machinery. In going to and from certain parts of the building to certain parts of the machinery, he had to cross a plank or board about 12 x 2 approximately 14 feet long; and, in making the trip over this board on the occasion in question, the board fell, throwing him to the floor some ten feet below and injuring him.

In the trial of the case in the court below, there was introduced a duplicate of the board, showing the condition of the one in the plant as well as the manner in which it was held in place. The board complained of had been used for a long time, the ends were not nailed to the supports but were loose, having some kind of a cleat for the purpose of holding the board in place. The jury and the attorneys saw the duplicate board that was used in evidence, and the witnesses, in describing it, do not make it entirely clear just how the supports and boards were situated. In pointing out the position, situation or condition of the board, known as a "runway," also its supports, the witnesses frequently used the words "here" and "there" in referring to the board. The jury and parties concerned in the trial could see the board and knew what was being demonstrated, but we cannot get a very clear picture of the situation from the record and must presume that they had proper visual evidence to enable them to fully understand the matter.

There was proof by the appellee, plaintiff in the court below, that he had requested a new board of the manager and that he had stated that he would not attend to it until after the season was over, or words of that import. It appears from the evidence that the board was not nailed into the supports, that it was left in that condition so that it might be moved from place to place, but the extent of the moves and different positions in which it would be in these various positions is not clear. We think there was a situation from which the jury could infer or find that the appellant had not used reasonable care to make a reasonably safe place for its employee to work, having reference to the situation of the plank and the risk; and that they could find that this constituted a dangerous place to work, as held by the trial judge.

We are unable to find any reversible error in the record, and the judgment is affirmed.

Affirmed.

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MISSISSIPPI COTTONSEED PRODUCTS CO. v. HARRIS
(Dec 11, 1939)