Cecil Lumber Co. v. McLeod

.Holden, J., delivered the opinion of the court. This is an appeal from a judgment for five thousand dollars recovered as damages for personal injuries received by the appellee while employed in appellant’s sawmill. The recovery is based upon two grounds, namely, — 785 — that the injury was caused by the negligent failure of the master to furnish a reasonably safe place in which to work, and that the culpable negligence of the master in knowingly employing an unfit and incompetent fellow1 servant caused or contributed to the injury of appellee. There were two other counts in the declaration, charging negligence in the operation of the plan with a defective cogwheel line shaft, and that the master was negligent in operating the machinery with a defective control lever. These two counts, which are designated as the second and third counts of the declaration, were not sustained by the proof and were abandoned by the plaintiff. The injury occurred in the manner and under the circumstances following : Situated in appellant’s sawmill is what is termed as. a “roller bed,” the purpose of which device is to transfer lumber from one part of the mill to another. The ‘ ‘ roller bed” consists of a table-like platform about forty feet in length, a few feet wide, and approximately thirty inches in height above the mill floor. At various intervals across the top of the “roller bed” are rollers, over which are propelled pieces of lumber traveling from the saws to the points at which the pieces are desired to be deposited in the mill. Some of the rollers are called “dead rollers.” They revolve only when the lumber resting upon them moves, and are designed to faciliate the movement of the lumber by curtailing friction. Other rollers of the “bed,” referred to- as “live rollers,” are revolved by power transmitted from the machinery of the mill. The “live rollers” perform the function of propelling the lumber along the “roller bed” to be dealt with at particular places as the circumstances require. The power necessary to revolve the “live rollers” is transmitted to them from the engines of the plant by means of a horizontal transmission shaft, which runs along the length of the “roller 'bed,” slightly lower than its top surface. Gears upon this shaft mesh with gears — 786 — by cogwheel connections, attached to the ends of the “live rollers,” so that revolution of the shaft impels revolution of the rollers. Since the topis of the rollers project but slightly above the surface of the roller bed, the gearing' of the transmission shaft and the rollers are somewhat below the “roller bed’s” surface. The movement of the “live rollers” was controlled by means of a lever operated by an employee in the mill (who in this case is alleged to have been incompetent); the employee being also under the duty of operating, a “jump saw,” located at a point about forty feet away from the point where the appellee was injured at the “rol1 er bed.’ ’ By manipulating the lever controlling the ££ live rollers” the operator could start, stop', or reverse the shaft and rollers,' The operator could stop the movement of the rollers and cogwheels with the lever and reverse the motion of the shaft and cogs very quicldy. At one side of the “roller bed,” near the end, there stood an “edger,” or trimming machine, the platform of which adjoins the “roller bed” on that side. An endless chain, propelled by the same power that operated the “live rollers,” traverses the “roller bed” some little distance from the platform of the ‘ ‘ edger. ’ ’ The purpose of this chain was to transfer certain pieces of lumber that moved down the “ roller bed” to the platform of the “edger.” As a piece appropriate for the “edger” machine approached along the “ roller bed,” the operator of the “edger?’ presses his foot upon the spring that elevates the chain one and one-half inches above the “roller bed.” An employee in the mill (who was the appellee) was under the duty to stand near the £ £ roller bed, ’ ’ opposite the platform of the “edger,” and, as a piece to be transferred to the £ ‘ edger’ ’ platform passes, to catch one end of the piece and to throw or thrust this end of the piece from the £ ‘ roller bed’ ’ to the £ £ edger’ ’ platform, while the conveyor chain transfers the other end. It was while filling this position and performing his duty that the appellee received his injury. — 787 — At the point where the appellee was standing or leaning over for the purpose of shoving the lumber over to the “edger” platform, there was an exposed gearing or cogwheel revolving; and while he was performing the duty of his employment in shoving the lumber over, his body in a necessary leaning position, his overalls were caught in the cogwheel gearing and gradually drew his body into the cogs, which resulted in serious permanent injury to the private parts of his person. When his clothes were first caught in the cogs he began to cry aloud to the employee named Jones, a negro boy, who was in charge of the controlling lever about forty feet away, to stop' the machinery. Jones, whose back was to the appellee, was deaf and could not hear the call of appellee. Other employees heard the loud appeals of appellee, and one of them, who was about forty feet distance away, ran to the appellee and attempted to1 pull him loose from the machinery before it had begun to actually crush his flesh, but, failing in the attempt this employee went on then a distance of forty feet farther to Where the deaf employee, Jones was in charge of the lever, brushed him aside, and quickly stopped and reversed the machinery, releasing appellee and preventing further injury to him. The appellant lumber company knew that the employee Jones was deaf when it hired him to fill the position at the jump saw and to control the lever which started, stopped, and reversed the revolving shaft and cogs. The testimony of the witnesses, as well as the physical facts in evidence, shows that the master failed to furnish the appellee with a reasonably safe place in which to work, in this, that the revolving gears or cogwheels were uninclosed and exposed at the point of the “roller bed”' where the appellee was compelled to work and lean his body over in order to perform the duties of his employment. This was a dangerous situation in which to place the employee, and the master was chargeable with negligence, as decided by the jury. . . — 788 — The appellant urges a reversal of the judgment upon two grounds; First that the court erred in granting instructions 1 and 2- for the appellee, both of which contain the same alleged infirmity to he mentioned later; second, that it was error in granting instruction No. 4, for the appellee. We] here set forth said instructions Nos. 1 and 4 granted the appellee. No. 1: “The court instructs the jury for the plaintiff that it is immaterial, as a matter of law, how the plaintiff was dressed or who reversed the live roller lever, if you believe from the evidence in the case the defendant was guilty of any negligence as charged in the declaration which contributed in whole or in part to the plaintiff’s injury, if you believe from the' evidence in the case the plaintiff was injured, it is the sworn duty of the jury to find for the plaintiff and assess his damages, if any, at such sum as you may believe from the evidence in the case a reasonable compensation to him for the injuries sustained on account of such negligence, not to exceed the amount sued for.” Instruction No. 4: “The court instructs the jury for the plaintiff that it was the duty of the defendant to furnish the plaintiff with reasonably competent and skilled fellow servants with whom to work, and if the jury believes from the evidence in the case the plaintiff’s fellow servant Ollie Jones, or ‘Dummy,’ operated the live roller lever, and was deaf so that he could not hear the plaintiff when he was caught in said cogwheels and called out to said Jones to stop- or reverse said rollers, if you believe the plaintiff was caught in said cogwheels and did call out to said Jones, and that the said Jones could not and did not hear plaintiff on account of deafness, and that the said Ollie Jones was not, on account of said deafness, a competent employee to do the particular work at which he was put by the defendant, that is, *to operate said live roller lever, and that the defendant knew or could have known of said — 789 — ineompetency by the exercise of the care and caution required of it, and that the plaintiff received his injuries, either in whole or in part, as a proximate and direct result of ineompetency of said employee, if you believe he was incompetent, then it is the sworn duty of the jury to find for the plaintiff.” Complaint is made of instruction No. 1 because it tells the jury that if they believe the appellant “was guilty of any negligence, as charged in the declaration, which contributed in whole or in part to the plaintiff’s injury,” it should find for the plaintiff, whereas the second and third counts of the declaration were not proved and were abandoned by the plaintiff. We agree with counsel for the appellant that the instruction is technically erroneous and should not have been given. Newman Lbr. Co. v. Dantzler, 107 Miss. 31, 64 So. 931. The error of the instruction was not cured by failure of the appellant to have the court instruct the jury to disregard the faulty count under section 777, Code of 1906 (section 560, Hemingway’s Code), because the statute has no application as to erroneous instructions granted by the court. • But we thinlr the granting of the instruction was harmless error for several reasons. In the first place, it clearly appears that no testimony was offered to' the jury in support of counts 2 and 3 of the declaration. -Jurors are presumed to be men of ordinary intelligence, and we may safely assume that they did not consider or act upon counts 2 and 3' because they heard no proof supporting these counts. We think that it is reasonable to say that the jury was not misled or confused by this instruction. Bule 11 (72 So. vii). Furthermore, the real issues in the case, were presented by counts 1 and 4, and were covered by the instructions given, which, taken as a whole, limited the issues to counts 1 and 4, and the jury must have so understood it. We are further convinced in this regard when it is considered that — 790 — the appellant received and used only one instruction on the issues presented which instruction narrowed the question of liability of appellant to the proposition as to whether the appellee was furnished a reasonably safe place in which to work. We here quote the instruction granted the appellant: “The court instructs the jury that the law of Mississippi does not require the defendant to miake or keep the gears in question absolutely safe, or to guarantee the safety of its employees working near said gears, and that the defendant is not liable for accidents to employees that could not reasonably have been expected or anticipated; the defendant being given the right by the law to expect its employees to use the faculties with ■which nature has endowed them for their self-preservation. If the gears, considering their natural dangers alad the fact that employees could escape injury from them by the exercise of ordinary watchfulness and prudence, were reasonably safe, the jury should find its verdict for the defendant.” It is urged by the appellant that instruction No. 4, granted the appellee, is erroneous because it was not negligence on the part of the appellant to employ a deaf man to control and operate the lever, since he was competent to perform that duty, and that appellant was not bound to employ a servant in anticipation of an injury to the appellee by the machinery controlled by the deaf servant. In other words, it is contended that the master could not reasonably anticipate that this deaf servant would ever be called upon to stop the machinery when a fellow servant might be caught in it; that the deaf servant employed was competent to perform the duties for which he was hired; and that his failure to respond to the call of the injured fellow servant when in peril could not be reasonably anticipated, and there fore his employment was not culpable negligence. — 791 — We must disagree with the position taken by appellant in this respect. The master knowingly employed this incompetent servant and placed him in control of the operation of dangerous machinery where his fellow servants were employed. The duty of this deaf employee was to start, stop, and reverse the dangerous machinery where his fellow servants were at work, as well as to operate the jump saw.” And while he was not specially charged with the duty of watching out for injuries that might be received by his fellow servants and to stop the machinery in order to prevent such injury, yet it must be inferred that, since he was placed in control of the lever which operated the dangerous shaft and cogwheels that injured the appellee, it was his duty to stop the m-acliinery when called upon to do so by a fellow servant in peril. Beers v. Prouty, 200 Mass. 19, 85 N. E. 864, 20 L. R. A. (N. S.) 39, 128 Am. St. Rep. 374. If the servant Jones in charge of the lever had not been incompetent on account of deafness, he could have heard the cry of appellee to stop the machinery and would have stopped it in time and prevented the injury when the appellee’s overalls only were engaged in the cogs and before the cogs had reached his flesh. It will be remembered that' another fellow servant, named Boothe, went a distance of forty feet to the appellee when he called, and attempted to pull him out of the machinery. At that time it appears .there was no serious injury do appellee, and Boothe went on forty feet farther to the lever, shoved the deaf m,an aside and reversed the machinery, stopping it quickly. So it is plain that no substantial injury would have occurred in this case had the- servant in charge of the lever been a competent man and responded to the call of the appellee when he first became in a perilous position. The employment of this incompetent and unfit servant certainly increased the danger of injury further — 792 — than the work necessarily entailed; and the failure of the incompetent servant to respond and prevent the injury after the appellee was in peril contributed to the actual injury, if it did not in fact wholly cause it. A. capable .and competent employee in charge of such dangerous machinery would have heard the call and prevented the injury. The incompetent servant here was placed at work with his back to the appellee, who was at work at and with machinery exposed and manifestly dangerous; being in charge of the lever controlling the movement of this dangerous machinery, he was placed in a position where he could not see appellee, and the master knowing at the same time that he could not hear. We think that the appellant under these circumstances was negligent in'the employment of this incompetent servant, and that the injury resulted from or was contributed to by such negligence. In volume 3, section 1079, M'r. Labatt says: “The obligations of a master to see that the servants hired by him possess the qualifications mental, moral, and physical, which will enable them to perform their duties without exposing’' themselves and their coernployoes to greater dangers than the work necessarily entails are, in their broad features, similar to the obligations which are incumbent upon him with regard to the other agencies of his business. . . . The hiring or retention of a servant whose unfitness for his duties, whether it arises from his want of skill, his physical and mental qualities, or his bad habits, is known, actually or constructively, to the master, is culpable negligence,- for which the master must respond in damages' to any other servants who may suffer injury through that unfitness.” The position taken by the appellant that the work engaged in by the deaf employee imposed no duty upon him to hear and respond to the call of a fellow servant in peril, in our opinion, is not well taken in this case. — 793 — From the facts and circumstances shown in this case it is unquestionably true that the deaf servant, Jones, was under duty to stop the machinery as well as to start it by manipulating the lever. This duty was part of the service to be rendered by him in the work he was employed to do. It is true he did not cause the injury by any affirmative act on his part, but his omission to act when called upon, which would have prevented or minimized the injury, resulted in contributing to or increasing the injury to appellee. The incompetency of Jones defeated the last clear chance of the employee escaping after knowledge of peril, thus increasing the danger of injury beyond the ordinary hazards where competent coemployees are serving. The duties of Jones, the deaf coemployee, required him to operate the "jump saw,” and also to manipulate the lever controlling the stopping and starting of the rollers and cogs on the "roller bed” at which appellee worked. It was his duty to stop- the revolving gearing and cogs when requested to do so by his coemployeo working in close proximity to him, in order to prevent the injury or stop its further progress. In 18 It. C. L. section 204, p. 726, the rule is stated as follows: "Incompetency consists in qualities and characteristics calculated to cause reasonable apprehension that the admission to the service or the retention therein of the incompetent will or may imperil the safety of other employees. ... It goes to reliability in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those who are required to associate with such person in the general employment. A competent man is a reliable man. ’ ’ The appellee had the right to assume that the fellow servant employed to work with him and about him and in control of the dangerous machinery would not be lack — 794 — ing in those attributes which would make him an ordinarily safe coworker. The appellee could act upon the theory that he would be free from the danger1 of the want of capacity of his fellow laborer to perform his duties when called upon to do so. 18 R. C. L. section 202, p'. 725'. Employees in control of dangerous machinery owe a duty to prevent injury of their fellow employees when their perilous position is known and they have opportunity to act; and the master is guilty of negligence in knowingly employing an incompetent and unfit servant who is unable to act when the perilous position would be known to a competent person. It would be an unreasonable rule that would permit the master to knowingly employ a blind or deaf person and put him in charge of dangerous machinery with which a fellow worker is working and is injured on account of the incompetency of the “dummy” in failing to prevent an injury when called upon to do so by his fellow employee in peril. ' ¡ , ! • j In this case the deaf servant, Jones, was working but a few feet away from the appellee and was the only person in control of the lever, which, it is true, was not primarily designed as a safety device, but which should have been used to prevent the injury when it was known or should have been known by Jones if competent, and his failure to act was negligence chargeable to the master on account of his known unfitness to perform the duties for which he was employed, namely, to control and operate by starting and stopping, the revolving machinery which injured the appellee, and to operate a “jump saw” impelled by the same machinery, all in close proximity to the place where the appellee was injured. The judgment of the lower court is affirmed. Affirmed.