Wilkie v. West Const. Co. of Tennessee, Inc.

Appellee, the West Construction Company, a foreign corporation, was employed by the State Highway Commission to construct a paved east and west highway between the towns of Vardaman and Greysport. Howard Wilkie, one of its employes, on the 19th of November, 1941, was struck and killed by a lumber truck belonging to W.L. Plunk, and driven by Howard Talant. The appellants, *Page 240 Wilkie's wife and daughter, brought a foreign attachment in chancery against the West Company, its superintendent and other employes, to recover damages for his death. A trial was had on bill, answers and proofs, resulting in a decree against Plunk and Talant in the sum of $20,000, and dismissing the bill as to the West Company, its superintendent and other employes. From that decree the wife and daughter alone prosecute this appeal. The following facts were amply supported by the evidence, and the greater part thereof were found to exist, by the chancellor in his finding of facts, which finding was made a part of the record. The West Company had completed the highway except the sodding of the shoulders and placing what is known as "grouted rip-rap" at the bridges along the highway. This work consisted of rocks properly placed along the banks of the streams, and bound together with cement. The State Highway Commission ordered the West Company to open the highway for traffic, which was done, and that the sodding and rip-rap work be continued and completed thereafter. Wilkie lost his life at the bridge across Red Grass Creek, which is 120 feet long. East of that bridge about 180 feet is another creek and bridge. The width of both of these bridges is 24 feet, and the width of the pavement between them is the same. For a mile or more east and west of the Red Grass Creek bridge the road is straight. Shorty Darter was the West Company's foreman in charge of the "rip-rap work" under the Red Grass Creek bridge. He and his crew went to work on the day of the tragedy, carrying their tools and implements necessary for that purpose in a truck, which they parked without lights on the north side of the highway near the east end of the bridge, with the south wheels occupying only a foot and a half of the paved part of the highway, leaving open to traffic the south 22 1/2 feet of the pavement. The shoulders on each side were approximately four feet wide, *Page 241 therefore the paved and unpaved parts of the highway together were about 32 feet wide. In doing the work it was necessary to go back and forth at times to this tool truck. It could not have been parked conveniently elsewhere. In order to do this work it was necessary to use several loads of rock. Wilkie was employed by the West Company to haul and deliver this rock near to the east end of the bridge, and there to dump it down the embankment to the ground below. For this purpose he was furnished a truck and three negro men to assist him. He got the rock east of the bridge, and delivered the first load about eleven o'clock on the day of his death. The road embankment through Red Creek valley, including that at the east end of the bridge, was high. Wilkie's truck was about 14 feet long. He came with a fourth load, and, following his custom, which was a necessary one, he parked his truck as near the south edge of the shoulder on the south side as he could safely do, for the purpose of dumping the rock down the embankment. This left his truck facing north, and therefore at right angles with the highway. It took only one to four minutes to empty the truck. There was an attachment which was used to dump the contents of the truck instantly. After the truck had been placed, the evidence was conflicting as to the space left between its front and the Darter truck on the north. As stated, the Darter truck only occupied 18 inches of the pavement, and the Wilkie truck was 14 feet long. The evidence varied as to what the space was between the two trucks — it ranges from 6 1/2 to 11 1/2 feet. The evidence made it doubtful as to whether it was dark, dusk or daylight — as stated, it was around 5 P.M. on November 19th. There was ample evidence to show that it was light enough to see a good, long distance east and west over the highway. Before Wilkie could dump the rock he saw a truck coming from the west, driven by Talant. It was carrying a heavy load of lumber, and running at a high rate of *Page 242 speed. Wilkie was evidently of opinion that in this emergency the thing for him to do was to run up on the bridge and flag the truck down, which he did — and was killed by the truck in doing so. The West Company had furnished flares, which were on his truck, with which to signal traffic. He had not put them out before parking across the highway, and there was no evidence to show that he intended to do so after he stopped, and failed for want of time. There was evidence that the lumber truck struck both the Wilkie truck and the Darter truck, but that if the latter had not been there, it would nevertheless have struck the Wilkie truck, which, as shown, was on the right-hand side of the driver of the lumber truck. If Wilkie had put out his flares, as he was required to do, in all probability Talant would have stopped before reaching the east end of the bridge. In other words, Wilkie adopted a highly unsafe method in trying to stop the lumber truck, instead of the safe way provided by his employer. His own unwise and unauthorized act, and Talant's negligence were the sole proximate causes of his death. The Dartner truck did not contribute to it — it would have occurred if the Darter truck had not been there. The liability of the West Company was sought to be established on the ground that Wilkie was not furnished a reasonably safe place to work, and a safe and suitable means to work with. It is true, the rule is that it is the non-delegable duty of the master to use reasonable care to furnish the servant with a reasonably safe place to work, and suitable instrumentalities with which to work. But there is a recognized exception to this rule; and that is, the master is not liable where the place or instrumentality becomes or remains unsafe because of a breach of duty on the part of the injured servant. Hegwood v. J.J. Newman Lbr. Co.,132 Miss. 487, 96 So. 695; Bruce Co. v. Brogan, 175 Miss. 208,166 So. 350; Waterman-Fouke Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759. *Page 243 It was Wilkie's duty to make his place to work safe, and he had the means at hand to do so, but failed to avail himself thereof. If this case had been tried in the circuit court, would the appellants have been entitled to a directed verdict on the issue of liability? Clearly not. If not, the decree of the chancellor must stand. This court cannot substitute its judgment for that of the chancellor on issues of fact. Affirmed.