BONELLI ET AL. v. FLOWERS

John H. Culkin, of Vicksburg, for appellants.

The verdict of the jury is so excessive as to evidence bias, prejudice and passion, and the court should have granted the motion of the appellants for a new trial.

Laurel Light R. Co. v. Jones, 137 Miss. 143, 102 So. 1; J.W. Sanders Cotton Mill Co. v. Bryan, 181 Miss. 573, 179 So. 741; City of Greenwood v. Pentecost, 148 Miss. 60, 114 So. 259; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Oliver Bus Lines v. Skaggs (Miss.), 164 So. 9; 17 C.J. 1088, Sec. 397.

The appellee sustained the injuries complained of while operating a modern, up-to-date saw commonly known as a ripsaw. A guard could not be used on this particular saw when being used for work required to be done on this saw. The appellee had been instructed to be careful at all times while using the saw, and was instructed as to the two methods of using the saw in order to keep his hands away from the blade at all times, viz, always saw half-way through the material and then turn it over and saw the other half, and to push the material through with a small stick. The appellee ignored these instructions and as a result brought his hand over the saw blade while not watching what he was doing (in fact, he was looking away from his work), and thereby sustained the injuries complained of. It will, therefore, be readily seen that the appellee was injured as a result of his own negligence.

The appellants were entitled to expect that their servant, the appellee, would exercise reasonable care in the use and operation of the saw in question in the normal manner to avoid injury. The general rule of law is that the master is as much entitled to expect that a servant will exercise reasonable care in the use and operation of a tool or appliance in the normal manner to avoid injury as the servant is entitled to expect that the master will use reasonable care to furnish him a reasonably safe tool or appliance.

39 C.J. 824-826, Secs. 1038, 1039.

The dangerous nature of the service (of itself alone) adds nothing to the liability of the master.

Anderson-Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536; Yazoo M.V.R. Co. v. Hullum, 119 Miss. 229, 80 So. 645; 39 C.J. 709.

The test in such a case is this: Was the situation such that the employer could properly and justly assume, as a reasonably prudent man, that the particular employee could safely do the particular piece of work, at that particular place, if he took reasonable care and caution in his own behalf? It is not enough that the employer could see that the employee might possibly be hurt, or that he probably would be if he took no care for his own safety, for if the rule were as thus stated employees would be permitted to abandon all obligations of any care on their part and employers would become insurers of all possible injuries in mills and factories.

Seifferman v. Leach, 161 Miss. 853, 138 So. 563.

A master is not required by law to promulgate rules governing the performance of their duties by his servants simply because the work about which such servants are engaged is dangerous to life or limb; it is only where, in addition to being dangerous, the work of the servants is also complex and the conditions which may arise are uncertain and obscure. If the work is simple in character and free from complexities, the master is under no obligation to adopt rules. In other words, where the danger is apparent to all, and the duty of the servants to avoid such danger is manifest, no rules are required.

Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.

It is an elementary principle that, in actions for injuries through negligence, the plaintiff cannot recover if his own negligence or want of ordinary care produced, or even contributed as the proximate cause to produce, the injury complained of; and if the facts shown by the whole testimony for the plaintiff, and all just inferences from those facts, make this clear, then, in such a state of evidence, although the defendant introduces no evidence in support of his plea of contributory negligence, it is not only within the power, but it is the duty, of the court to decide upon the legal effect of the evidence and to instruct the jury, as a matter of law, that the plaintiff cannot maintain this action.

Bridges v. Jackson Electric Railway, Light Power Co., 86 Miss. 584, 38 So. 788.

There is no doubt of the soundness of the principle that, where the master knows, or ought to know, the dangers to which the servant will be exposed, and knows or ought to know that the servant, by reason of his immature years or inexperience, or both, is unable to appreciate such dangers, it is the duty of the master to give the servant such instructions and warnings of the character of the employment as will reasonably enable him to understand and avoid its perils. But this principle has no application where the danger is so apparent that the servant as well as the master must have known about it.

Dobbins v. Lookout Oil Refining Co. (Miss.), 97 So. 546.

See also Brown v. Coley, 168 Miss. 778, 153 So. 61; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 300, 743; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; French v. Sale, 63 Miss. 386.

The duty of the employer to warn and instruct young and inexperienced employees extends only to those dangers which he in the exercise of ordinary prudence has reason to believe are not known to his employees and will not be discovered by them in time to protect themselves from injury.

35 Am. Jur. 580.

Vollor, Teller Biedenharn, of Vicksburg, and Barnett, Barnett, Jones Stone, of Jackson, for appellee.

Appellee predicated negligence on two grounds: (1) The failure of the appellant to properly instruct this youthful employee, and (2) the failure of the appellant to exercise due care to furnish this young man with a reasonably safe place to work, having specific reference to the absence of a guard on the ripsaw in the place provided on said saw for such a guard.

Appellee denied that any instructions were given to him and the testimony of the foreman having direct supervision of the appellee manifestly disclosed the absence of any adequate instructions. It is the duty of the master who employs a servant in a place of danger to give him such warning and instruction as is reasonably required by his youth, inexperience, or want of capacity, and as will enable him, with the exercise of reasonable care, to perform the duties of his employment with reasonable safety to himself; to this end the danger and its nature and extent should be pointed out, and the method of avoiding it shown. Where a servant is a minor, the master must put his warning in such plain language as to be sure that the servant understands and appreciates the danger. It is not enough that he should do his best to make the servant understand; he must actually understand and appreciate the danger.

J.W. Sanders Cotton Mill Co. v. Bryan et al., 181 Miss. 573, 179 So. 741; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546.

The law applicable to the absence of the guard is well settled, and it was fairly inferable from the evidence that the ripsaw unguarded was a dangerous instrumentality. The question of liability was clearly one for the jury. Appellant's contention that appellee knew the danger of operating the saw without a guard, and therefore assumed the risk of it, is without merit. The servant does not assume the risk of the negligence of the master in failing to furnish him a reasonably safe place to work, or a reasonably safe instrumentality with which to work.

Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Cecil Lumber Co. v. McLeod, 122 Miss. 767, 85 So. 78; Brooks v. DeSoto Oil Co., 100 Miss. 849, 57 So. 228; Continental Gin Co. v. Milbrat (Ala.), 65 So. 424.

The verdict is not excessive.

J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Laurel Light Railway Co. v. Jones, 137 Miss. 143, 102 So. 1; Pigford v. Howse, 149 Miss. 692, 115 So. 774; Alabama V.R. Co. v. Hanes, 69 Miss. 160, 13 So. 246; Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150; Croco v. Oregon Short Line R. Co., 18 Utah 311, 54 P. 985, 44 L.R.A. 285; Denver R.G.R. Co. v. Harris, 122 U.S. 597, 7 S.Ct. 1286, 30 L.Ed. 1146.

Argued orally by John H. Culkin, for appellants, and by Landman Teller, for appellee.