Truly v. North Lumber Co.

Whitfield, O. J., delivered the opinion of the court. The counsel for appellants concede that the first four counts of the declaration were drawn under the act of 1898, and that, under Ballard v. Miss. Cotton Oil Company, 81 Miss., 507, 34 South., 533, 62 L. R. A., 407, no recovery could be had under that act. But it is insisted that certain facts are set out in these four counts which, taken in connection with the fifth count, state a common law cause of action. We think the fifth [435] count is an attempt to state a common law cause of action, but it is perfectly apparent from tbe averments of tbe declaration that tbe deceased knew that tbe car was defective, and must bave known tbe location of tbe post. Tbe declaration discloses clearly enough to us that be must bave been familiar with tbe location of tbe post and of tbe surroundings, and it is expressly shown that be did know that tbe car was defective and wobbled. Tbe averment on this point is as follows: “Plaintiffs further allege that James B. Truly did not know, nor did be bave any reason to believe, that tbe defective car wheel would cause tbe lumber to shift and extend so far on each side of the car that it could not safely pass by said post along said tramway into said dry shed. That said James B. Truly, in pushing said car of lumber, had to walk behind said ear of lumber, which was between him and said post. Therefore be could not bave seen that tbe car of lumber could not safely pass said post. That said James B. Truly did not know, and did not have any reason to believe, that the defective car wheel would cause the lumber to shift and extend so far on each side of tbe car that it could not safely pass by said post along said tramway into said dry shed. That said James B. Truly, in pushing said car of lumber, bad to walk behind said car of lumber, which was between him and said post, and therefore be could not bave seen that the car of lumber could not safely pass the post. That the said James B. Truly did not know, and did not have any reason to believe, that said car of lumber could not safely pass said post.” Much of all this allegation is by way of inference. But it is plain that the declaration does not deny that the deceased knew tbe car wheel was defective, or that the car wheels wobbled, or that tbe result of their wobbling was to throw tbe lumber over tbe side of tbe car. On tbe contrary, it avers that “be walked behind tbe car,” and, of course, must have seen the wobbling of the wheels and the disarrangement of tbe lumber. So, again, tbe allegation is not that he did not know that the post was [436] located just where it was — just as close as it was to the car— but simply that, because “the lumber was between Mm and the post, therefore he could not know that the lumber would hit the post.” It is perfectly obvious that the declaration substantially discloses that he did know that the car .was defective, that the wheels wobbled, and that the results of this was to disarrange the lumber on the car, and that he was perfectly familiar with the locus in quo, and knew the location of the post. It is impossible to save the cause on common law principles, when the deceased stands charged with a knowledge of these facts. But it is said, again, that “the superior officer” ordered the deceased into the place of danger, and he was bound to obey, and therefore appellants should recover. But this rule is always qualified by the exception that there, is no liability if the danger is such that no prudent man would have encountered it, as is said in the authorities cited by counsel for' appellants. In view of what we have stated, the declaration showed that deceased knew that the risk was so. obviously dangerous that no recovery could be had for this reason. And finally it is insisted that it is one thing to be aware of defects in the instrumentalities furnished by the master in the performance of services, and another thing to know and appreciate risks resulting from such defects; and it is said that thei question is, did he know, or ought he to have known in the exercise of ordinary common sense and prudence, that-the risks were dangerous ? 14 Am. & Eng. Enc. Law (1st ed.), 844, and note thereto. The principle is sound enough, but the trouble here, as throughout the case, is the state of case made by the facts averred in the declaration. We think it obvious, from the averments of the declaraton, that deceased knew the risk arising from the defective car wheels. The pleader expressly states that the car wheel was defective, that it wobbled, and that the result of the wobbling was to throw the lumber over the side of the car, and that deceased walked behind the car. He therefore necessarily knew — because he observed the facts thus [437] stated, and knew where the post was — that the risk to be encountered was the risk of having the lumber strike the post, and thus of being thrown back on him. We have given the case most careful consideration, sincerely sympathizing with the appellants in their great loss; but, within the rules of the law, well settled and long estabished, these appellants must fail. Affirmed. Teuly, J., took no part in the decision of this cause.