J. J. Newman Lumber Co. v. Dantzler

Cook, J.,

delivered the opinion of the court.

This. action was begun in the circuit court of Forest county by appellee, a minor, against appellant, a corporation,. engaged in the business of operating a sawmill and planing mill. Appellee was in the employ of appellant, and while operating a planing machine he was injured, because,, as he alleg’es, one of the belts on the machine he was feeding became defective and dangerous, and appellant, having notice of this defect, failed and refused to repair same. The case was submitted to the jury, and a verdict was rendered in favor of appellee, plaintiff below, for three thousand dollars, and appellant, defendant below, appeals to this court.

Defendant below; demurred to the declaration, which demurrer was overruled, and this action of the court is the first assignment of error we will notice. The demurrer to the first count of the declaration avers that this count contains two separate and distinct causes of action, to wit: - It was the duty of defendant to furnish plaintiff a safe place in which to work, and to warn and instruct plaintiff as to the dangers incident to his work; that the declaration avers appellant violated its duties to appel-lee in each of said regards. The second count of the declaration was demurred to upon the ground that it also stated several separate and distinct causes of action.

The first count of the declaration describes in circumstantial detail the machinery, its location, character, and the manner in which the same was operated, and a casual reading of same would suggest the idea that several *35 and distinct causes of action are set out thereby. We think, however, a proper analysis of this count discloses one cause of action, and that therefore the same is not duplicitous. This count, to our mind, charges that appellant was negligent in its failure to properly instruct and warn appellee of the dangers incident to the operation of the machine he was employed to operate.

The second count of the declaration, as we read it, merely reiterates a description of the machinery and the method of its operation, and then avers that, during the operation of the machine appellee was employed to run, one of the belts controlling the machine developed a defect which rendered further operation of same exceedingly dangerous; that appellee stopped the machine and called the attention of appellant’s servant, designated by the master to keep the machine in a safe condition, to the defect; that this foreman, or helper, refused to repair the belt and informed him that there was no danger, and ordered him to go on with his work; and that ap-pellee, relying on the superior judgment of this man, did continue to run the machine, and while so doing he received the injury complained of. The gist of this count is that during the operation of the machinery a dangerous defect in the machinery developed, and this was known to appellant, and it was then the duty of the master to repair same, and, failing to do so, the master was negligent, and responsible for all damages resulting from the neglect of its duty to appellee. The other averments were intended to negative the idea that appellee, after he knew of the danger, assumed the risk of continuing the work. There was no error in overruling the demurrer'to the declaration.

The next contention of appellant is that the evidence, at most, shows that appellee was injured by the negligence of a fellow servant. It is earnestly contended that Mr. Youngblood, who is designated as a “helper,'” was a fellow servant of appellee, and that appellant is not re *36 sponsible for his negligence. It was the duty of this man to instruct appellee and to keep the machinery in proper condition, and his attention was directed to the defect which the evidence shows was the cause of the injury, and his failure to repair this defect was the negligence of the master. Finkbine Lumber Co. v. Cunningham, 101 Miss. 292 , 57 So. 916 ; Railway Co. v. Groome, 97 Miss. 206 , 52 So. 703 .

Again, it is said that it was error to admit evidence to the effect that appellee was employed by appellant without the consent of his father, there being no averment in the declaration to support such testimony. We think this evidence should have been excluded; but for this error alone this court would not be justified in reversing the case.

The fifth assignment of error is also well taken.

The sixth and seventh assignments of' error are predicated on the theory that it was the duty of the trial court to have peremptorily instructed the jury to return a verdict for defendant. We are of opinion that the court properly refused to grant the peremptory instruction.

We hold that the court erred in refusing the ninth instruction asked by appellant. If appellee attempted to pull a raveled strip off the belt, as one of appellant’s witnesses testified, without disconnecting the machinery, he assumed a risk which was obvious, and in addition it was no part of his duty to repair the machinery; but, on the contrary, all the evidence demonstrates that he assumed a hazard voluntarily. It was his duty to operate the planer, and, when anything wrong in the machinery developed, it was the duty of appellee to notify Mr. Young-blood, who was employed by the master to make the needed repairs.

The first instruction granted for plaintiff below is misleading, and should not have been given. It admonishes the jury to find for plaintiff “if they believe from the evidence that the defendant is guilty of the acts of negli *37 gence complained of in the declaration.” There is no. evidence to support the first count of the declaration; all the evidence shows plaintiff was properly instructed and warned. It is also clear from plaintiff’s own testimony that he was experienced, or at least, that he so informed his employer.

Reversed and remanded.