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  • Jas. A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellants. Plaintiffs' decedent being a young boy 18 years of age, wholly inexperienced and unfamiliar with road machinery or other motor vehicles, placed to watch on this lot where these dangerous dumpbeds were set like bird-traps, constituting a series of veritable death-traps, should have been fully and intelligibly warned of the danger involved in availing of the perfectly apparent temptation to take shelter under one of them from rain or storm or for other cause, which inevitably meant his death, all being known to the master, we say the master should have carefully and explicitly warned and instructed him of such danger before setting him to work and exposing him to his death. Sea Food Co. v. Alvis, 77 So. 857; Masonite Corp. v. Lockridge, 140 So. 223; S.H. Kress Co. v. Markline, 77 So. 858, 117 Miss. 37; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; American Sand Gravel Co. v. Reeves, 151 So. 477; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691; 18 R.C.L. 567; 39 C.J. 486, sec. 602; Simmons v. Doullutt Ewin, Inc., 145 So. 708; 3 LaBatt, Master Servant (2 Ed.), sec. 975; 4 LaBatt on Master Servant (2 Ed.), sec. 1558. Cobb Brothers Construction Company and their foreman in charge owed the duty to plaintiffs' decedent of warning and instructing him of the hidden dangers on these premises likely to be contacted through the incidents of his purposes there on the premises considering the length of his stay, and the necessity for shelter, and the answer of calls of nature, and the retirement of lunch, etc., on the idea that he was an invitee on the premises and that the invitation extended to the entire rainy stormy day, and with the notice that the aforesaid incidents attended his stay and made it likely to the master's mind considering the common traits of humanity that he would be tempted to retire under one of these truckbeds for some incidental purpose of his day's stay, unless warned. 2 Restatement of Law of Agency, sec. 491; 1 Thompson Commentaries on Negligence, sec. 969; 2 Restatement of Law of Torts, sec. 342; Gulf Ref. Co. v. Moody, 160 So. 559; La. Oil Corp. v. Davis, 158 So. 792; Standard Oil Co. v. Decell, 166 So. 379; N.O. N.E.R. Co. v. Brooks, 165 So. 804. Ordinarily, a master may rely upon the servants' being careful as to themselves and as to other workmen. Nevertheless, due care may require the master to make regulations and take precautions based upon the probable occurrence of sporadic negligent acts. He must take into consideration the fact that even employees of ordinary prudence occasionally will be inadvertent in their work, and he is required to provide for the safety of those who work with or near them under the conditions which are likely to prevail. 2 Restatement of Law of Agency, sec. 493; 45 C.J., secs. 211, 291-2. The fact that this boy may have diverted for a moment from the active watch for shelter out of a rain and/or storm and/or for a reasonable place to either procure his lunch that had been put away or to eat his lunch does not take him outside the scope of his employment and does not remove him from the master's nondelegable duty to exercise care to provide for him a reasonably safe place to work, neither does it relieve the master of the duty of exercising reasonable care of safeguarding these death-traps or warning him as an invitee on their premises at the time. Seafood Co. v. Alvis, 77 So. 857; 39 C.J., sec. 398; Brown v. Golightly, Ann. Cas. 1918A 1184; Employers Mutual Ins. Co. v. Industrial Commission, 130 P. 394; Geibig v. Ann Arbor Asphalt Const. Co., 214 N.W. 90; Richards v. Indianapolis Abattoir Co., 102 A. 604; Bubis v. Flockhart Foundry Co., 191 A. 281; Ziolkowski v. American Radiator Co., 161 N.E. 164; Rolling Mill Co. v. Rockhold, 42 So. 96; 4 LaBatt on Master and Servant, 4690, sec. 1558. It was contended in the court below and will be contended here that this boy was instructed not to go about the trucks and not to allow anybody else to go about them, that the master wanted the trucks to be ready for service next morning and by everybody getting upon them they might turn a switch and run the battery down, or something. We contend that if the contention of the appellees were true as to what they claim was said to the boy at the times and places alleged, that this amounted to no proper warning and instruction in compliance with their duty to him for his safety so he could guard against this series of hidden death-traps by these truckbeds set like traps and also triggered as if they were ready for the touch of the prey, for there was nothing that tended or afforded any hint or warning of the presence of these most fatal death-traps there where the boy was required to work. The master's duty to instruct an employee of hidden perils and death-traps such as are involved in bringing about this youth's death must be explicit and thoroughly understandable so that no doubt shall be left especially where it is a youthful employee wholly unadvised and uninformed of the nature of his environment. 39 C.J., sec. 622; James v. Rapides Lbr. Co., Ltd., 44 L.R.A. 33; LaBatt on Master Servant, sec. 1283. We cite Miss. Ann. Code, 1930, section 511 and citations thereunder; Everett Hdw. Co. v. Shaw, 173 So. 411; Gulf, Mobile Northern R. Co. v. Walters, 134 So. 831; 3 LaBatt on Master Servant (2 Ed.), section 1282, which holds that disobeying instructions the employee thereby becomes guilty of contributory negligence because done in violation of rules and orders, but this is concededly the common law rule and could not be so construed as to constitute a complete bar in this state where the doctrine of comparative negligence prevails. Plaintiff offered competent witnesses and admissible testimony to contradict the testimony of this witness from several different standpoints because it was then and is now a mooted question of whether this boy was instructed at all or not depended upon the testimony of one of the defendants, G.M. Mayo, who was called by the plaintiff as an adverse witness and cross-examined and the question raised by his testimony should have been submitted to the jury even if it should be regarded effective. Rowe v. State, 163 So. 22; Holland v. State, 142 So. 112; 2 Jones on Evidence (2 Ed.), pages 1086 and 1115; Merchants Co. v. Tracy, 166 So. 340; Southern Bell Telephone Co. v. Quick, 149 So. 107; Graves v. Utica Candy Co., 204 N.Y. Supp. 682; S.H. Kress Co. v. Markline, 77 So. 858; Fletcher v. State, 151 So. 477; 22 C.J. 94, sec. 35; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Mass. Protective Assn. v. Cranford, 102 So. 171; Texas Ry. Co. v. Gentry, 41 L.Ed. 186. We submit that even from all the evidence excluded that was offered in this case, the trial court erred in excluding the evidence and directing a verdict for the defendant because it should be in rare cases where the trial court exercises this prerogative and he should never do it where there is any conflict in the evidence or in any reasonable inference that may reasonably be drawn from the evidence. To put it in other words, when there is any controversy in the testimony about which reasonable men might reasonably be expected to take different views. Loper v. Yazoo-Miss. Valley R. Co., 145 So. 743; Sovereign Camp, W.O.W. v. Banks, 170 So. 634; Stevens v. Stanley, 122 So. 755; King v. King, 134 So. 827. Fred B. Smith, of Ripley, for appellees. The evidence of this case wholly fails to show any negligence on the part of the appellees, and since none of the duties of the decedent required him to get on, about, or under the trucks of the appellees, and since the proof conclusively shows that decedent was specifically instructed on two occasions not to get on or go about the trucks, there could have been no liability on the appellees. Seifferman v. Lech, 161 Miss. 853, 138 So. 563; Hammontree v. Cobb Bros. Constr. Co., 168 Miss. 844, 152 So. 281; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Latimer v. Dent, 177 Miss. 869, 172 So. 126. When we take into consideration the fact that no duty imposed on the decedent required him to get under the truck, and with absolute safety he could have performed his work and not have approached near the truck, we cannot believe that it can be successfully contended that there was any negligence on the master relative to furnishing an unsafe place to work. This is especially true when we recall that our court has time and time again held that the master is only required to exercise ordinary and reasonable care to provide a reasonably safe place to work. Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65. It is also well established that a servant can never fix liability on a master for furnishing an unsafe place to work, or unsafe means or method of work, where the servant elected a dangerous or different method than that designated by the master. Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Brown v. Coley, 168 Miss. 778, 152 So. 61. When a master tells a servant not to approach or touch or get on a piece of equipment, he has a right to assume that the servant will observe his directions, and therefore he cannot reasonably anticipate that the servant will be injured by that particular machinery. A. V. Ry. Co. v. Jones, 111 Miss. 196, 71 So. 318. The master is not chargeable with negligence for failure to warn a servant of danger where he is injured while working outside of the scope of his employment voluntarily and without orders, or where he performs a dangerous act which has been forbidden or works in a place where he has been forbidden to work. 39 C.J. 509; Devine v. Simmons, 235 Pa. 336, 84 A. 397; Francis v. Rounseville, 313 Mass. 332, 100 N.E. 555; McCue v. National Starch Mfg. Co., 142 N.Y. 106, 36 N.E. 809; 2 Restatement of Law of Agency, secs. 497 and 526; 18 R.C.L., pages 569, 570; Wyman v. Berry, 106 Me. 43, 75 A. 123, 20 Ann. Cas. 439; King v. Smart, 133 N.E. 672; 3 Ann. Cas. 375; Waddell v. Burlington Basket Co., 140 N.W. 805, 159 Iowa, 736; Lange v. Keickhefer Box Co., 133 N.W. 630, 147 Wisc. 506; Clark County Construction Co. v. Richards' Admr., 259 S.W. 331. When a master forbids a servant from going to a certain place or doing a certain thing, then no duty whatever rests upon the master to explain to the servant why he shouldn't go to that place or do that thing; and if the servant does go to the place and do the thing which is forbidden him, and as a result thereof is injured, there is no liability on the master. National Hosiery Yarn Co. v. Napper, 135 S.W. 780; McMellen v. Union News Co., 22 A. 706; Louisville Nashville R.R. Co. v. Pettis, 89 So. 201; Card v. Wilkins, 39 A. 676; Calkins v. Wyoming Coal Mining Co., 171 P. 265; Leistritz v. Am. Zylonite Co., 28 N.E. 294. The common usage of a business or occupation is frequently stated to be a test of care or negligence, and accordingly, conformity to custom or usage is very generally regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case. 45 C.J. 706; Ketterer v. Armour, 247 Fed. 921, 166 C.C.A. 111, L.R.A. 1918D, 798. There was no error in the court's action in excluding certain testimony offered by the appellants. Loper v. Y. M.V.R. Co., 145 So. 743; Security Finance Co. v. Sharpe, 119 So. 829. There is no presumption in this case on which appellants can rely. Normandin v. Parenteau, 150 A. 460. Jas. A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellants, on suggestion of error. The court erred in affirming the action of the trial court in excluding the evidence of the two Mrs. Forbuses, Mr. Forbus, and Mrs. Harris which directly contradicted a positive statement of the defendant G.M. Mayo as a sole witness of the defendants and a hostile witness about what was said and what was not said in the Forbus home, and as to whether Mrs. Forbus asked Mayo why he did not inform the boy of this danger, or whether she did not ask him such a question, and as to whether he admitted that he should have informed him and did not, in one case, and where he stated that he did not know why he did not inform him but that he just did not, in the other conversation, all of which testimony would have justified the jury under the standards of law offered by counsel for appellants in their brief and would have justified the jury in disregarding this man's testimony altogether. The court in rendering its opinion erroneously followed that line of authorities urged by counsel of appellees in their brief which dealt with open dangers in and about the premises where they were required to work and many of which were in jurisdictions where contributory negligence was a complete defense and findings often based thereupon, instead of more seriously considering that line of authorities offered by appellants in their brief covering the master's duty when hidden dangers or obscure dangers exist on the premises and where it is the duty of the master either to safeguard against or to fully warn ignorant or inexperienced employees so thoroughly of the hidden danger that the employees could appreciate it and be fully informed of the necessity for their own self-preservation to avoid such dangers. The court erred in not taking into consideration the array of authorities offered by counsel for appellants which showed that even what the defendant Mayo claimed to have been said to this boy about not going about the trucks kite-tailed with a special reason to not do so did not mount up to the standard of duty required of them to inform this boy of the hidden dangers under the truck. Curry-Turner Constr. Co. v. Bryan, 185 So. 256; Richards v. Indianapolis Abattoir Co., 102 A. 604. We especially invite the court's attention to an authority cited in our original brief which is an elaborate note in Annotated Cases, 1918A, beginning at page 1194. We urge the attention of the court to that authority because of the great collation of authorities there quoted from by the editorial writer to show that all such matters as taking care of one's reasonable comforts, obtaining nourishment for the body, answering the calls of nature, resting the body, obtaining clothes and obtaining tools, and protection from menaces just such as the storm and rain that invaded this boy's health and life are within the scope of his employment and the incidents thereto and not outside of it, and that the master must anticipate such activities and notify him of hidden dangers that he might come in contact with in these activities. Haller v. City of Lansing, 162 N.W. 335, L.R.A. 1917E, 324; Primos v. Gulfport Laundry Cleaning Co., 128 So. 507; Loper v. Yazoo-Miss. Valley R. Co., 145 So. 743; Sou. Bell Tel. Tel. Co. v. Quick, 149 So. 107; Bourgeois v. Miss. School Supply Co., 152 So. 642; Barmore v. Vicksburg S. P.R. Co., 38 So. 210; Rounds v. Delaware R. Co., 64 N.Y. 129. The appellants certainly established the relation of master and servant, that is not questioned anywhere, but this court in its opinion, like the court below, committed the error of overlooking that principle of the law which presumes that appellants' decedent was acting within the scope of his authority and in furtherance of the master's business at the time of his sad tragedy sheltering himself under this truckbed. Southern Bell Tel. Tel. Co. v. Quick, 149 So. 107; Slaughter v. Holsomback, 147 So. 318; Bourgeois v. Miss. School Supply Co., 152 So. 642; Merchants Co. v. Tracy, 166 So. 340; 39 C.J. 1282, sec. 1472; 22 C.J., p. 94, sec. 35, and sec. 43; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Mass. Protective Assn. v. Cranford, 102 So. 171; Texas Ry. Co. v. Gentry, 41 L.Ed. 186. It is the duty of one who employs a youthful and inexperienced servant for service attended with dangers which are known to the employer but not known to the servant, to explain to him the perils incident to the employment and to instruct him how to avoid them. Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; American Sand Gravel Co. v. Reeves, 151 So. 477; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691; 18 R.C.L., page 567; 39 C.J., p. 486, sec. 602; Simmons v. Doullutt Ewin, Inc., 145 So. 708; 2 Restatement, Law of Agency, secs. 471 and 491; 18 R.C.L., secs. 76, 77 and 78; 3 LaBatt, Master and Servant (2 Ed.), sec. 975; 4 LaBatt on Master and Servant (2 Ed.), sec. 1558; 2 Restatement, Law of Torts, sec. 342; 1 Thompson Commentaries on Negligence, sec. 969. That the weather was unsettled and that the master anticipated that this boy would need shelter for the preservation of his health and to enable him to stay on this job and render this service is confessed by the jungled statement of the sole witness and joint defendant, Mayo, in saying that he pointed out to him two places of retreat for shelter, if such a contingency arose, and it is definitely shown that neither of the places pointed out offered adequate protection from the rain and therefore he should reasonably have anticipated the probability that being a youth and inexperienced and unadvised of the danger that he might take shelter under one of these truckbeds. 2 Restatement, Law of Torts, sec. 302; 45 C.J., secs. 211, 291 and 292. Argued orally by Jas. A. Cunningham, for appellant, and by Fred B. Smith, for appellee.
Judges
  • Ethridge, P.J., delivered the opinion of the Court.
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Citation Codes
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  • Jas. A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellants. Plaintiffs' decedent being a young boy 18 years of age, wholly inexperienced and unfamiliar with road machinery or other motor vehicles, placed to watch on this lot where these dangerous dumpbeds were set like bird-traps, constituting a series of veritable death-traps, should have been fully and intelligibly warned of the danger involved in availing of the perfectly apparent temptation to take shelter under one of them from rain or storm or for other cause, which inevitably meant his death, all being known to the master, we say the master should have carefully and explicitly warned and instructed him of such danger before setting him to work and exposing him to his death. Sea Food Co. v. Alvis, 77 So. 857; Masonite Corp. v. Lockridge, 140 So. 223; S.H. Kress Co. v. Markline, 77 So. 858, 117 Miss. 37; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; American Sand Gravel Co. v. Reeves, 151 So. 477; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691; 18 R.C.L. 567; 39 C.J. 486, sec. 602; Simmons v. Doullutt Ewin, Inc., 145 So. 708; 3 LaBatt, Master Servant (2 Ed.), sec. 975; 4 LaBatt on Master Servant (2 Ed.), sec. 1558. Cobb Brothers Construction Company and their foreman in charge owed the duty to plaintiffs' decedent of warning and instructing him of the hidden dangers on these premises likely to be contacted through the incidents of his purposes there on the premises considering the length of his stay, and the necessity for shelter, and the answer of calls of nature, and the retirement of lunch, etc., on the idea that he was an invitee on the premises and that the invitation extended to the entire rainy stormy day, and with the notice that the aforesaid incidents attended his stay and made it likely to the master's mind considering the common traits of humanity that he would be tempted to retire under one of these truckbeds for some incidental purpose of his day's stay, unless warned. 2 Restatement of Law of Agency, sec. 491; 1 Thompson Commentaries on Negligence, sec. 969; 2 Restatement of Law of Torts, sec. 342; Gulf Ref. Co. v. Moody, 160 So. 559; La. Oil Corp. v. Davis, 158 So. 792; Standard Oil Co. v. Decell, 166 So. 379; N.O. N.E.R. Co. v. Brooks, 165 So. 804. Ordinarily, a master may rely upon the servants' being careful as to themselves and as to other workmen. Nevertheless, due care may require the master to make regulations and take precautions based upon the probable occurrence of sporadic negligent acts. He must take into consideration the fact that even employees of ordinary prudence occasionally will be inadvertent in their work, and he is required to provide for the safety of those who work with or near them under the conditions which are likely to prevail. 2 Restatement of Law of Agency, sec. 493; 45 C.J., secs. 211, 291-2. The fact that this boy may have diverted for a moment from the active watch for shelter out of a rain and/or storm and/or for a reasonable place to either procure his lunch that had been put away or to eat his lunch does not take him outside the scope of his employment and does not remove him from the master's nondelegable duty to exercise care to provide for him a reasonably safe place to work, neither does it relieve the master of the duty of exercising reasonable care of safeguarding these death-traps or warning him as an invitee on their premises at the time. Seafood Co. v. Alvis, 77 So. 857; 39 C.J., sec. 398; Brown v. Golightly, Ann. Cas. 1918A 1184; Employers Mutual Ins. Co. v. Industrial Commission, 130 P. 394; Geibig v. Ann Arbor Asphalt Const. Co., 214 N.W. 90; Richards v. Indianapolis Abattoir Co., 102 A. 604; Bubis v. Flockhart Foundry Co., 191 A. 281; Ziolkowski v. American Radiator Co., 161 N.E. 164; Rolling Mill Co. v. Rockhold, 42 So. 96; 4 LaBatt on Master and Servant, 4690, sec. 1558. It was contended in the court below and will be contended here that this boy was instructed not to go about the trucks and not to allow anybody else to go about them, that the master wanted the trucks to be ready for service next morning and by everybody getting upon them they might turn a switch and run the battery down, or something. We contend that if the contention of the appellees were true as to what they claim was said to the boy at the times and places alleged, that this amounted to no proper warning and instruction in compliance with their duty to him for his safety so he could guard against this series of hidden death-traps by these truckbeds set like traps and also triggered as if they were ready for the touch of the prey, for there was nothing that tended or afforded any hint or warning of the presence of these most fatal death-traps there where the boy was required to work. The master's duty to instruct an employee of hidden perils and death-traps such as are involved in bringing about this youth's death must be explicit and thoroughly understandable so that no doubt shall be left especially where it is a youthful employee wholly unadvised and uninformed of the nature of his environment. 39 C.J., sec. 622; James v. Rapides Lbr. Co., Ltd., 44 L.R.A. 33; LaBatt on Master Servant, sec. 1283. We cite Miss. Ann. Code, 1930, section 511 and citations thereunder; Everett Hdw. Co. v. Shaw, 173 So. 411; Gulf, Mobile Northern R. Co. v. Walters, 134 So. 831; 3 LaBatt on Master Servant (2 Ed.), section 1282, which holds that disobeying instructions the employee thereby becomes guilty of contributory negligence because done in violation of rules and orders, but this is concededly the common law rule and could not be so construed as to constitute a complete bar in this state where the doctrine of comparative negligence prevails. Plaintiff offered competent witnesses and admissible testimony to contradict the testimony of this witness from several different standpoints because it was then and is now a mooted question of whether this boy was instructed at all or not depended upon the testimony of one of the defendants, G.M. Mayo, who was called by the plaintiff as an adverse witness and cross-examined and the question raised by his testimony should have been submitted to the jury even if it should be regarded effective. Rowe v. State, 163 So. 22; Holland v. State, 142 So. 112; 2 Jones on Evidence (2 Ed.), pages 1086 and 1115; Merchants Co. v. Tracy, 166 So. 340; Southern Bell Telephone Co. v. Quick, 149 So. 107; Graves v. Utica Candy Co., 204 N.Y. Supp. 682; S.H. Kress Co. v. Markline, 77 So. 858; Fletcher v. State, 151 So. 477; 22 C.J. 94, sec. 35; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Mass. Protective Assn. v. Cranford, 102 So. 171; Texas Ry. Co. v. Gentry, 41 L.Ed. 186. We submit that even from all the evidence excluded that was offered in this case, the trial court erred in excluding the evidence and directing a verdict for the defendant because it should be in rare cases where the trial court exercises this prerogative and he should never do it where there is any conflict in the evidence or in any reasonable inference that may reasonably be drawn from the evidence. To put it in other words, when there is any controversy in the testimony about which reasonable men might reasonably be expected to take different views. Loper v. Yazoo-Miss. Valley R. Co., 145 So. 743; Sovereign Camp, W.O.W. v. Banks, 170 So. 634; Stevens v. Stanley, 122 So. 755; King v. King, 134 So. 827. Fred B. Smith, of Ripley, for appellees. The evidence of this case wholly fails to show any negligence on the part of the appellees, and since none of the duties of the decedent required him to get on, about, or under the trucks of the appellees, and since the proof conclusively shows that decedent was specifically instructed on two occasions not to get on or go about the trucks, there could have been no liability on the appellees. Seifferman v. Lech, 161 Miss. 853, 138 So. 563; Hammontree v. Cobb Bros. Constr. Co., 168 Miss. 844, 152 So. 281; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Latimer v. Dent, 177 Miss. 869, 172 So. 126. When we take into consideration the fact that no duty imposed on the decedent required him to get under the truck, and with absolute safety he could have performed his work and not have approached near the truck, we cannot believe that it can be successfully contended that there was any negligence on the master relative to furnishing an unsafe place to work. This is especially true when we recall that our court has time and time again held that the master is only required to exercise ordinary and reasonable care to provide a reasonably safe place to work. Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65. It is also well established that a servant can never fix liability on a master for furnishing an unsafe place to work, or unsafe means or method of work, where the servant elected a dangerous or different method than that designated by the master. Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Brown v. Coley, 168 Miss. 778, 152 So. 61. When a master tells a servant not to approach or touch or get on a piece of equipment, he has a right to assume that the servant will observe his directions, and therefore he cannot reasonably anticipate that the servant will be injured by that particular machinery. A. V. Ry. Co. v. Jones, 111 Miss. 196, 71 So. 318. The master is not chargeable with negligence for failure to warn a servant of danger where he is injured while working outside of the scope of his employment voluntarily and without orders, or where he performs a dangerous act which has been forbidden or works in a place where he has been forbidden to work. 39 C.J. 509; Devine v. Simmons, 235 Pa. 336, 84 A. 397; Francis v. Rounseville, 313 Mass. 332, 100 N.E. 555; McCue v. National Starch Mfg. Co., 142 N.Y. 106, 36 N.E. 809; 2 Restatement of Law of Agency, secs. 497 and 526; 18 R.C.L., pages 569, 570; Wyman v. Berry, 106 Me. 43, 75 A. 123, 20 Ann. Cas. 439; King v. Smart, 133 N.E. 672; 3 Ann. Cas. 375; Waddell v. Burlington Basket Co., 140 N.W. 805, 159 Iowa, 736; Lange v. Keickhefer Box Co., 133 N.W. 630, 147 Wisc. 506; Clark County Construction Co. v. Richards' Admr., 259 S.W. 331. When a master forbids a servant from going to a certain place or doing a certain thing, then no duty whatever rests upon the master to explain to the servant why he shouldn't go to that place or do that thing; and if the servant does go to the place and do the thing which is forbidden him, and as a result thereof is injured, there is no liability on the master. National Hosiery Yarn Co. v. Napper, 135 S.W. 780; McMellen v. Union News Co., 22 A. 706; Louisville Nashville R.R. Co. v. Pettis, 89 So. 201; Card v. Wilkins, 39 A. 676; Calkins v. Wyoming Coal Mining Co., 171 P. 265; Leistritz v. Am. Zylonite Co., 28 N.E. 294. The common usage of a business or occupation is frequently stated to be a test of care or negligence, and accordingly, conformity to custom or usage is very generally regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case. 45 C.J. 706; Ketterer v. Armour, 247 Fed. 921, 166 C.C.A. 111, L.R.A. 1918D, 798. There was no error in the court's action in excluding certain testimony offered by the appellants. Loper v. Y. M.V.R. Co., 145 So. 743; Security Finance Co. v. Sharpe, 119 So. 829. There is no presumption in this case on which appellants can rely. Normandin v. Parenteau, 150 A. 460. Jas. A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellants, on suggestion of error. The court erred in affirming the action of the trial court in excluding the evidence of the two Mrs. Forbuses, Mr. Forbus, and Mrs. Harris which directly contradicted a positive statement of the defendant G.M. Mayo as a sole witness of the defendants and a hostile witness about what was said and what was not said in the Forbus home, and as to whether Mrs. Forbus asked Mayo why he did not inform the boy of this danger, or whether she did not ask him such a question, and as to whether he admitted that he should have informed him and did not, in one case, and where he stated that he did not know why he did not inform him but that he just did not, in the other conversation, all of which testimony would have justified the jury under the standards of law offered by counsel for appellants in their brief and would have justified the jury in disregarding this man's testimony altogether. The court in rendering its opinion erroneously followed that line of authorities urged by counsel of appellees in their brief which dealt with open dangers in and about the premises where they were required to work and many of which were in jurisdictions where contributory negligence was a complete defense and findings often based thereupon, instead of more seriously considering that line of authorities offered by appellants in their brief covering the master's duty when hidden dangers or obscure dangers exist on the premises and where it is the duty of the master either to safeguard against or to fully warn ignorant or inexperienced employees so thoroughly of the hidden danger that the employees could appreciate it and be fully informed of the necessity for their own self-preservation to avoid such dangers. The court erred in not taking into consideration the array of authorities offered by counsel for appellants which showed that even what the defendant Mayo claimed to have been said to this boy about not going about the trucks kite-tailed with a special reason to not do so did not mount up to the standard of duty required of them to inform this boy of the hidden dangers under the truck. Curry-Turner Constr. Co. v. Bryan, 185 So. 256; Richards v. Indianapolis Abattoir Co., 102 A. 604. We especially invite the court's attention to an authority cited in our original brief which is an elaborate note in Annotated Cases, 1918A, beginning at page 1194. We urge the attention of the court to that authority because of the great collation of authorities there quoted from by the editorial writer to show that all such matters as taking care of one's reasonable comforts, obtaining nourishment for the body, answering the calls of nature, resting the body, obtaining clothes and obtaining tools, and protection from menaces just such as the storm and rain that invaded this boy's health and life are within the scope of his employment and the incidents thereto and not outside of it, and that the master must anticipate such activities and notify him of hidden dangers that he might come in contact with in these activities. Haller v. City of Lansing, 162 N.W. 335, L.R.A. 1917E, 324; Primos v. Gulfport Laundry Cleaning Co., 128 So. 507; Loper v. Yazoo-Miss. Valley R. Co., 145 So. 743; Sou. Bell Tel. Tel. Co. v. Quick, 149 So. 107; Bourgeois v. Miss. School Supply Co., 152 So. 642; Barmore v. Vicksburg S. P.R. Co., 38 So. 210; Rounds v. Delaware R. Co., 64 N.Y. 129. The appellants certainly established the relation of master and servant, that is not questioned anywhere, but this court in its opinion, like the court below, committed the error of overlooking that principle of the law which presumes that appellants' decedent was acting within the scope of his authority and in furtherance of the master's business at the time of his sad tragedy sheltering himself under this truckbed. Southern Bell Tel. Tel. Co. v. Quick, 149 So. 107; Slaughter v. Holsomback, 147 So. 318; Bourgeois v. Miss. School Supply Co., 152 So. 642; Merchants Co. v. Tracy, 166 So. 340; 39 C.J. 1282, sec. 1472; 22 C.J., p. 94, sec. 35, and sec. 43; 16 Cyc. 1057; Jefferson Standard Life Ins. Co. v. Jefcoats, 143 So. 842; Mass. Protective Assn. v. Cranford, 102 So. 171; Texas Ry. Co. v. Gentry, 41 L.Ed. 186. It is the duty of one who employs a youthful and inexperienced servant for service attended with dangers which are known to the employer but not known to the servant, to explain to him the perils incident to the employment and to instruct him how to avoid them. Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; American Sand Gravel Co. v. Reeves, 151 So. 477; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691; 18 R.C.L., page 567; 39 C.J., p. 486, sec. 602; Simmons v. Doullutt Ewin, Inc., 145 So. 708; 2 Restatement, Law of Agency, secs. 471 and 491; 18 R.C.L., secs. 76, 77 and 78; 3 LaBatt, Master and Servant (2 Ed.), sec. 975; 4 LaBatt on Master and Servant (2 Ed.), sec. 1558; 2 Restatement, Law of Torts, sec. 342; 1 Thompson Commentaries on Negligence, sec. 969. That the weather was unsettled and that the master anticipated that this boy would need shelter for the preservation of his health and to enable him to stay on this job and render this service is confessed by the jungled statement of the sole witness and joint defendant, Mayo, in saying that he pointed out to him two places of retreat for shelter, if such a contingency arose, and it is definitely shown that neither of the places pointed out offered adequate protection from the rain and therefore he should reasonably have anticipated the probability that being a youth and inexperienced and unadvised of the danger that he might take shelter under one of these truckbeds. 2 Restatement, Law of Torts, sec. 302; 45 C.J., secs. 211, 291 and 292. Argued orally by Jas. A. Cunningham, for appellant, and by Fred B. Smith, for appellee.
Judges
  • Ethridge, P.J., delivered the opinion of the Court.
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Smart Summary

FORBUS et al. v. COBB BROS. CONST. CO. et al.

1. MASTER AND SERVANT.

An employer, even of persons under age, is not insurer of employee's safety.

2. MASTER AND SERVANT.

To recover from employer for injury to employee, latter must have been engaged in master's business and acting within scope of his employment at time of injury.

3. MASTER AND SERVANT.

While master owes servant duty to exercise reasonable care and to furnish reasonably safe place to work, it is not his duty to furnish reasonably safe place for gratification of curiosity or experimentation by servant in connection with dangerous agencies not connected with his work or in line of his duty.

4. MASTER AND SERVANT.

The death of minor employee, crushed by employer's truck, under which he went for shelter from rain in violation of foreman's specific instructions to go to easily accessible place connected with his work of guarding employer's road machinery on holiday in case of rain and stay away from trucks, was result of decedent's own negligence while not engaged about master's business or within scope of his employment as a matter of law, so as to relieve employer from liability therefor.

ON SUGGESTION OF ERROR. (Division B. Feb. 27, 1939.) [186 So. 643. No. 33429.] 1. MASTER AND SERVANT.

Where servant had no duties to perform underneath body of truck and was not required to go under it and had been instructed not to do so, question of master's failure to exercise reasonable care to furnish servant a reasonably safe place in which to work was not involved.

2. MASTER AND SERVANT.

Where watchman of road contractor's equipment had been instructed not to go under truck, failure to caution watchman regarding danger of operating, while underneath truck, device for raising or lowering body did not establish negligence which would render master liable for death of watchman crushed by body of truck.

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

The appellants, being the father, mother and brothers of Audie B. Forbus, deceased, who met his death by being crushed by one of the trucks operated by Cobb Brothers Construction Company, allege that on or about the 4th day of July, 1937, he was engaged as an employee of the defendant company, to do certain work for them; and that his death was caused by the negligence of the company. Audie E. Forbus was employed for the purpose of guarding certain road machinery used in the construction of road work, but which on Sundays and holidays was collected at points along the construction project, and placed under a guard or watchman, to prevent the machinery being tampered with. When the machinery was brought in on Saturday evening night mechanics went over it, making any necessary repairs to put it in readiness to resume work on Monday; and this was also true of holidays, the machines being brought in and put in order for operation on the day following the holiday.

The deceased, Forbus, through his father, had applied to the construction company for work, and was finally given the position mentioned, with instructions not to permit any person to go about the trucks and machinery, and not to do so himself. On the morning of the day that he was killed, one of the defendant company's foremen came to the deceased, where the trucks were assembled, and had the oil and gasoline in his car checked. It was a cloudy day, with threatened rain, and he instructed young Forbus, in case it should rain, to go to a nearby house, or into the cab of a dragline, which would afford shelter and protection from the rain. About the middle of that day a severe rain came up, with some wind, lasting for about an hour. After the rain was over the deceased was found under one of the truck bodies, the particular truck being equipped with a lever and machinery operated by hydraulics by which the body of the truck could be raised or lowered; this in order that when the truck was loaded with dirt, or other material, to be carried to the point where it was needed, the body of the truck could be lowered to deposit the load. There was a brake both above and below the body of the truck, by means of which it could be released, and when so released the body would descend. This truck had been backed up against an embankment, and it was so situated that if a person went under it the rain, coming from the direction it did, could not reach him. Young Forbus was found under this truck, with his body crushed.

The suit against the construction company was brought largely upon the theory that Audie Forbus had not received proper instructions as to the dangers inherent in his employment, especially in regard to the operation of the levers in this type of truck, used to raise and lower the body, as above stated. The proof as to this alleged negligence is that after the boy was carried to his home, a foreman of the company, who had employed the boy, came to the home, and while there the boy's mother asked him why he did not give her son instructions as to the danger of the truck and of his employment; to which he was alleged to have replied that he did not know why he failed to do so — that he should have done this. The foreman denied this conversation, but other witnesses than the mother, who were offered, would have supported her on that proposition; this evidence, however, was excluded upon objection by the defendant.

It is not disputed in this record that the young man was instructed to stay away from the trucks and machinery; and that he was not to permit others to go about them; that it was his duty simply to watch and protect them from anyone who might be inclined to tamper with the trucks or machinery. It was no part of his duty to see that the machines were in order, or to make any repairs. It is not disputed that he was instructed that in case of rain he was either to go in the cab of the dragline, which would afford protection, or to a near-by residence, where he might obtain shelter. However, it was shown in the proof that this residence was not open on the day in question, that the occupants thereof were not employees of the defendant company, and that there was no arrangement, contractual or otherwise, by which young Forbus could be sheltered in case of rain. It was also shown that some of the employees of defendant who were operating the machines would sometimes get under the body of the trucks for protection from rain. But that proof, in our judgment, does not establish the right of the deceased to go under the truck for shelter, as he probably did in the present case. He was specifically instructed where to go, to a place connected with his work, easily accessible.

It is quite probable that the deceased went under the truck to get out of the rain, and that curiosity prompted him to manipulate the machinery or lever which controlled the body of the truck. But this was no part of his duty, and his act was in violation of his instructions.

An employer, even of persons under age, is not an insurer of the employee's safety; and in order to recover for an injury the injured person must have been engaged in the master's business at the time of the injury, and he must be acting within the scope of his employment. In the present instant young Forbus at the time of his death was not about the business of his master, nor was he acting within the scope of his employment. He went to a place of danger of his own accord, in violation of specific instructions; and his own act, through no fault of the master, was the cause of his death. While the master is under the duty to exercise reasonable care, and to furnish a reasonably safe place for his employees to work, it is not his duty to furnish a reasonably safe place for the gratification of curiosity, or for experimentation, in connection with dangerous agencies, not connected with the employee's work or in the line of his duty.

In the case of Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86, the Court said: "It is the universal rule wherever the common law prevails that the duty of the master in regard to tools and places to work is not that of an insurer, is not an absolute duty, but is simply to exercise reasonable care to furnish the servant with reasonably safe tools and appliances, and likewise as to a safe place to work. 39 C.J., p. 313, et seq.; Mobile O. Railroad Co. v. Clay, 156 Miss. 463, 482, 125 So. 819." Brown v. Coley, 168 Miss. 778, 152 So. 61.

We think that the proof here shows without dispute that the death of young Forbus was the result of his own negligent act, in violation of specific instructions; that he was not engaged about the master's business, nor within the scope of his employment; and consequently that the master was not liable for his unfortunate death. The court below was correct in granting a directed verdict.

Affirmed.

McGehee, J., delivered the opinion of the Court on suggestion of error.

Assuming for the purpose of this decision that the excluded testimony mentioned in the former opinion in this case was both competent and true, it would only serve to raise an issue as to whether the foreman in charge had specifically explained to young Forbus the danger of operating, while underneath the truck, the device for raising or lowering the truck body. Such testimony would not have controverted the statement of the foreman that the young man had no duties to perform underneath the truck and had been instructed to keep away from it, nor does it contradict his statement that Forbus in case of rain should go into the cab of the dragline or to a nearby house for shelter. Since the servant had no duties to perform underneath the body of the truck and was not required to go under it, and had been instructed in effect not to do so, the question of the failure of the master to exercise reasonable care to furnish the servant a reasonably safe place in which to work is not here involved. Moreover, on the whole record, the unfortunate accident was one such as could not have been reasonably anticipated as a natural and probable consequence of anything done or omitted to be done by the master in the exercise of ordinary care. Of course, it now appears after the happening of the accident that if the foreman had taken the care and precaution to have explained to the boy in detail the operation of the device by which the truck body could be raised or lowered, even though he had no duties to perform in connection therewith, nor was required to go near the same, his death may not have occurred. However, after due consideration of the suggestion of error, we are of the opinion that the omitted caution does not establish negligence on the part of the master in view of the fact that the servant had no duties to perform in connection with the device in question and had been instructed in effect not to go under the truck at all.

Suggestion of error overruled.

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FORBUS v. COBB BROS. CONST. CO
(Jan 2, 1939)